Decker v. Canada (Attorney General), 2004 FC 1464

Date: 20041020

Docket: T-1124-03

Citation: 2004 FC 1464

Toronto, Ontario, October 20^th, 2004

Present:           THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE

BETWEEN:

                                                               KEVIN DECKER

                                                                                                                                            Applicant

                                                                           and

                                            ATTORNEY GENERAL FOR CANADA

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

[1]                Kevin Decker (the "applicant") seeks judicial review of the decision of the Honourable Robert G. Thibault, the Minister of Fisheries and Oceans (the "Minister"), dated February 17, 2003, which denied his request for a shrimp fishing permit.

[2]                The applicant requests:

1.          A declaration that the recommendations of the Atlantic Fisheries Licence Appeal Board (the "Appeal Board") are erroneous and were made in an arbitrary and capricious manner that ignored the evidence before it;

2.          An order in the nature of certiorari quashing the Minister's decision;

3.          A declaration that the applicant is entitled to a shrimp permit, or in the alternative, an order that his appeal be reheard by a differently constituted Appeal Board with directions to apply the Appeal Board's 1996 mandate when hearing his appeal;

4.          Costs of this application; and

5.          Such further and other relief as this Court may deem just.

Background

[3]                The applicant is a core enterprise fisher in Newfoundland and Labrador who holds a groundfish licence.

[4]                On April 23, 1997, the Department of Fisheries and Oceans ("DFO") announced that as part of its Integrated Fisheries Management Plan for the Northeast Newfoundland, Labrador coast and Davis Strait region, the total allowable catch for northern shrimp would be increased for 1998 and subsequent years, subject to resource stability. Temporary permits would be issued for 1998 to allow new entry into the shrimp fishery. To qualify for a temporary permit, fishers had to be geared up and inspected by DFO before the end of 1998.

[5]                The applicant wished to be issued a temporary shrimp permit for Shrimp Fishing Area 6 ("SFA 6").

[6]                DFO clarified its licencing policy in two letters to core fishers dated September 15, 1998 and November 4, 1998. The latter letter outlined the requirements of being issued a permit as follows:

1.             Only those enterprises which hold a temporary shrimp permit in 1998 will get a permit in 1999.

2.             To get a permit in 1998 a vessel has to be fully geared up and ready to fish shrimp. The vessel will be inspected by a DFO official prior to the permit being issued.

If the vessel meets the gear up requirement, then a permit will be issued upon the payment of the $100 fee.

3.             The vessel has to be geared up, inspected and a temporary shrimp permit issued by December 31, 1998 for a fisher to obtain access to this resource in 1999.

There will be no exceptions to this policy.

[7]                The parties disagree over the timing, extent and content of conversations between the applicant and DFO officials from late in 1998 to 2002.

[8]                The applicant alleges that DFO officials told him that if he acquired all of the required shrimp fishing gear and had it on his property before the December 31, 1998 deadline, he would be issued a permit even though the equipment was not installed on his boat. DFO officials deny that any such promise was made to the applicant.

[9]                On November 16, 2000, Jim Baird, a DFO Regional Director, sent the applicant a letter which stated:

This is in response to your telephone conversation with Roy Russell concerning a temporary shrimp permit for SFA 6.

While you claimed to received [sic] a verbal commitment for a shrimp permit, you were also written, along with all other core fishers, on September 15, 1998 and November 4, 1998 indicating that this gear-up had to occur prior to December 31, 1998.

Since the Minister initially announced these permits on April 23, 1997, the Department is of the view that fishers had adequate time to enter this fishery.

I regret that my response is not more favourable.

[10]            The applicant met with Gerald Marsh and Alan Rowsell of DFO on April 11, 2002 regarding his situation and his concerns about not being issued a shrimp permit. The parties disagree on what was said at that meeting.

[11]            In a letter dated July 26, 2002, the Regional Director for DFO Fisheries Management refused the applicant's request for a shrimp fishing permit on the basis that he was not geared-up prior to December 31, 1998. The letter went on to inform the applicant that he could appeal the negative decision to the Appeal Board within 90 days.

[12]            On September 25, 2002, the applicant appeared before the Appeal Board, chaired by George Clements, to argue his case.

[13]            The applicant testified that he had all the required gear, with the exception of one piece that was on back-order, in his yard in Joe Batts Arm before December 31, 1998. Furthermore, he put before the Board the corroborating affidavits of George Decker and Don McKenna. The applicant also pointed out that DFO had made other exceptions to its licencing policy and asked for the Appeal Board to look favourably on his situation.

[14]            On September 30, 2002 the applicant provided to the Appeal Board supplementary financial documentation which showed he spent $24,149 either purchasing or ordering shrimp fishing gear before the end of 1998.

[15]            By letter dated February 17, 2003 from Assistant Deputy Minister P. S. Chamut, the applicant's appeal was denied:

The Minister has made a decision based on a thorough review of all available information and I regret to inform you that he has denied your appeal. The Minister concluded that the licencing policy was correctly interpreted and applied by the Department of Fisheries and Oceans in your case.

[16]            The applicant called DFO and requested the Appeal Board's reasons or recommendations. On March 31, 2003 the applicant received the Appeal Board's Report to the Minister, which included the following in the recommendations section:

The board recommends the appeal be denied based on the fact that when the fishery officer, Mr. Furlong, visited the vessel on December 29, 1998 there was no shrimp gear on the vessel. Also, Mr. Decker advised the fishery officer that the only gear he had on Fogo Island was a shrimp net and he had a winch at Point Leamington.

. . .

The board came to the conclusion that Mr. Kevin Decker may have indeed tried to acquire the necessary shrimp gear before the December 31, 1998 deadline.

However, the board concludes that Mr. Decker did not acquire all the necessary gear to meet the Department of Fisheries and Oceans checklist of the gear that had to be installed on the vessel before the December 31, 1998 deadline.

Therefore the board recommends to the Minister that the appeal be denied and feels that Mr. Decker was treated fairly and in accordance with Department of Fisheries and Oceans policy at the time.

[17]            This is the judicial review of the Minister's refusal to issue the applicant a shrimp fishing permit.

Applicant's Submissions

Factual Allegations

[18]            The applicant made a number of factual allegations that are disputed by the Minister.

[19]            It is the applicant's position that DFO officials, specifically Gerald Marsh, waived the requirement of being fully geared-up prior to December 31, 1998 as long as the applicant had the required equipment either on his property or back-ordered by that date.

[20]            The applicant stated that he explained to Mr. Marsh that his boat would need to be re-decked in order to accommodate the heavy shrimp fishing gear, and that he was given the go-ahead to store the required equipment on his property while the repairs were being done.

[21]            The applicant further submitted that between January 1999 and July of 2002, the applicant made numerous requests for DFO to issue him a shrimp fishing permit, which they refused to do. The only explanation given was that he had not met the gear-up deadline of December 31, 1998.

[22]            The applicant submitted that during the April 11, 2002 meeting between himself, Alan Rowsell and Gerald Marsh, it was confirmed that DFO had waived the December 31, 1998 deadline for other fishers.

[23]            The applicant submitted that he was never advised of the Appeal Board's mandate until a summary was produced by DFO at his appeal hearing.

[24]            The applicant submitted that his evidence before the Appeal Board, as well as that of George Decker and Don McKenna, confirmed that the applicant had all of the required shrimp fishing gear in his yard before the end of December 1998. Furthermore, union representative David Decker, testified before the Appeal Board that DFO had made allowances for other fishers due to shortages in the availability of gear.

[25]            The applicant submitted that the Appeal Board failed to apply its mandate, which is set out in the Licencing Policy (Chapter 7, paragraph 35(7)(c)) as determining whether a fisher was treated unfairly or whether extenuating circumstances existed to warrant deviating from established practice and then making a recommendation to the Minister. Furthermore, the applicant argued that because he was never given a copy of the Appeal Board's mandate, he was not fully prepared for his hearing.

[26]            The applicant alleged that after his Appeal Board hearing, Chairperson George Clements approached him and indicated that it was important for the Appeal Board to have evidence of the applicant's financial expenditures on equipment. In his affidavits sworn April 10, 2003 and May 27, 2003, the applicant further alleged that Mr. Clements indicated after the hearing that if the applicant's receipts were produced, the Appeal Board would be inclined to make a positive recommendation to the Minister. Mr. Clements denies any such conversation took place.

Legal Argument

[27]            The applicant pointed out that DFO stated at the Appeal Board hearing that mechanical failure and demonstrated financial commitment are examples of extenuating circumstances that would warrant deviating from established licencing policy.

[28]            In the applicant's view, the Appeal Board failed to carry out their mandate of determining whether extenuating circumstances existed, since it ignored both the issues of mechanical failure and his demonstrated financial commitment.

[29]            The applicant submitted that strengthening the deck of his boat is equivalent to repairing mechanical faults, and should have been viewed more favourably by the Appeal Board.

[30]            Furthermore, the applicant submitted that the Appeal Board ignored the evidence of his financial commitment to the shrimp fishery in making its negative recommendation to the Minister.

[31]            The applicant submitted that the Appeal Board ignored the affidavits and testimony of George Decker, Don McKenna, David Decker, the financial documentation confirming the purchase of all the equipment required for shrimp fishing and the applicant's own testimony. The applicant further submitted that at no time during the Appeal Board hearing did DFO officials or members of the Appeal Board dispute the fact that the applicant had acquired or ordered all of the necessary equipment, yet the Appeal Board's negative decision was primarily based on the applicant's failure to acquire the necessary equipment. Consequently, the applicant submitted that the Appeal Board's decision was based on an erroneous finding of fact without regard to the material before it.

[32]            Although the Appeal Board's negative decision was based on its conclusion that the applicant had not acquired DFO's "checklist" of gear before the December 31, 1998 deadline, the applicant contended that DFO did not submit a checklist of gear for the Appeal Board to consider and at no time was he questioned about the contents of any gear "checklist".

[33]            The applicant submitted that the Board ignored evidenced that other fishers had been granted exemptions from the gear-up deadline.

[34]            The applicant further submitted that the Appeal Board failed to make the inquiries it was mandated to undertake, namely:

1.          If the applicant was given an opportunity to appeal to a Regional Licencing Appeal Board;

2.          Why the applicant was not officially notified of DFO's refusal to issue a permit until July 2002, some four years after his first request;

3.          Why DFO did not inform the applicant of his appeal rights until July 2002;

4.          Why the applicant was not treated equally with other fishers who were granted extensions to obtain and install shrimp fishing gear; or

5.          Whether there were extenuating circumstances relating to mechanical failure or demonstrated financial commitment to warrant a favourable decision.

[35]            The applicant also argued that the listed factors should have been, but were not, considered by the Appeal Board in relation to its mandate to determine if the applicant was treated fairly under DFO's policies, procedures and practices.

[36]            The applicant submitted that the Minister's discretion to issue fishing licences pursuant to subsection 7(1) of the Fisheries Act, R.S.C. 1985, c. F-14 must be exercised in accordance with the requirements of natural justice, which were not met in this case.

[37]            The applicant submitted that the Minister's decision, as communicated by P. S. Chamut, was based solely on the Appeal Board's recommendation. Citing Fennelly v,. Canada (Minister of Fisheries and Oceans), 2003 FC 1097, [2003] F.C.J. No. 1398 (QL), the applicant submitted that the Appeal Board's recommendation can be challenged in an application for judicial review of the Minister's ultimate decision.

[38]            As in Fennelly, supra, and Keating v. Canada (Minister of Fisheries and Oceans), 2002 FCT 1174, [2002] F.C.J. No. 1602 (QL), the applicant submitted that the Appeal Board's recommendation, and therefore the Minister's ultimate decision, was based on an erroneous finding of fact made without regard to the material before it.

Respondent's Submissions

[39]            The respondent submitted that no exception was promised to the applicant regarding the December 31, 1998 deadline for gear-up and at no time did the applicant acquire or install all the necessary equipment for shrimp fishing. The applicant, therefore, did not qualify for a shrimp fishing permit.

[40]            Furthermore, the respondent pointed to the November 16, 2000 letter from Jim Baird to the applicant, which reiterated that the gear-up requirements had been put in writing to fishers in both September and November 1998.

[41]            The respondent also denied that the Appeal Board Chairperson made any commitment to the applicant regarding a favourable recommendation to the Minister if receipts were submitted.

[42]            The respondent submitted that the applicant's complaints regarding not being informed of the existence of the Appeal Board or its mandate are without merit, as DFO Licencing Policy, which contains the Appeal Board's terms of reference, are publicly available on the internet.

[43]            The respondent submitted that the limited exceptions made by DFO to the gear-up deadline in no way relate to the applicant's circumstances and therefore do not assist the applicant's position.

[44]            The respondent submitted that the Appeal Board's recommendations are not reviewable by this Court because it is without statutory authority and is not a federal board, commission or other tribunal within the meaning of section 18 of the Federal Courts Act, R.S.C. 1985, c. F-7 (see Jada Fishing Co. V. Canada (Minister of Fisheries and Oceans), 2002 FCA 103, [2002] F.C.J. No. 436 (QL), leave to appeal to the S.C.C. dismissed, [2002] S.C.C.A. No. 209 (QL)). Furthermore, the respondent submitted that the Appeal Board does not make decisions, it only makes non-binding recommendations to the Minister so its report is not reviewable.

[45]            The respondent submitted that Parliament has expressly conferred an absolute discretion on the Minister whether to issue a fishing permit in any particular case. In the respondent's view, the sole issue for this Court to determine is whether the Minister's decision was patently unreasonable. The respondent cited Tucker v. Canada (Minister of Fisheries and Oceans), [2000] F.C.J. No. 1868 (T.D.) (QL), aff'd (2001), 288 N.R. 10, 2001 FCA 384 in support of patent unreasonableness being the applicable standard of review.

[46]            It is submitted that such a deferential standard of review simply requires the Minister to have based his decision on relevant considerations, avoided arbitrariness and acted in good faith in respect of the requirements of natural justice. The respondent submitted that this Court should be slow to overturn the Minister's decision.

[47]            The respondent argued that the applicant disqualified himself from eligibility by failing to have his boat geared-up to fish shrimp before December 31, 1998. Since nothing required the Minister to exempt the applicant from the qualification criteria, it was not patently unreasonable for the Minister to deny his appeal.

[48]            The respondent submitted that this Court has no jurisdiction to inquire whether the Appeal Board met its mandate. Alternatively, the respondent submitted that the Appeal Board did meet its mandate, which was to determine if the applicant was treated fairly in accordance with licencing policy, practices and procedure and whether extenuating circumstances existed.

[49]            The respondent denied that the Appeal Board ignored the evidence before it, rather it simply adopted a different view of that evidence than the view urged by the applicant.

[50]            The respondent submitted that the Fennelly, supra, case can be distinguished on the basis that the Appeal Board in this case addressed all matters properly put before it. Furthermore, the respondent contended that Keating, supra, can be distinguished on the basis that in the case at bar, there is no evidence that the Minister relied on extraneous or irrelevant matters in reaching his decision.

[51]            In essence, the respondent contended that the applicant is asking for this Court to second guess the fact finding of the Appeal Board, which this Court is not empowered to do. It is submitted that the applicant's opinion regarding what constitutes extenuating circumstances cannot govern the Minister's broad discretionary authority pursuant to the Fisheries Act, supra.

[52]            The respondent submitted that the applicant has not established any grounds for this Court's intervention, and therefore requested that this application be dismissed with costs.

Issues

[53]            The applicant phrased the issues in this proceeding as the following:

1.          Did the Appeal Board fail to apply the mandate it was given?

2.          Did the Appeal Board base its decision to make a negative recommendation to the Minister on an erroneous finding of fact or without regard to the material it had before it?

3.          Did the Minister make a decision based on a misapprehension of the facts and/or was inconsistent with the principles of natural justice?

[54]            I would rephrase the issue as follows:

Has the applicant established any basis for this Court's intervention?

Relevant Statutory Provisions

[55]            Subsection 7(1) of the Fisheries Act, supra, grants the Minister the discretion to issue fishing licences:

Analysis and Decision

[56]            I must first address the relationship between the Appeal Board's recommendations and the Minister's decision to deny or issue a fishing permit.

[57]            A review of subsection 7(1) of the Fisheries Act, supra, indicates that it grants the Minister a broad discretion to issue fishing licences. Major J. for the Supreme Court of Canada commented in [1997] S.C.R. 12">Comeau's Sea Foods Ltd. V. Canada (Minister of Fisheries and Oceans), [1997] S.C.R. 12 on the scope of the Minister's discretion at paragraphs 36 to 37:

It is my opinion that the Minister's discretion under s. 7 to authorize the issuance of licences, like the Minister's discretion to issue licences, is restricted only by the requirement of natural justice, no regulations currently being applicable. The Minister is bound to base his or her decision on relevant considerations, avoid arbitrariness and act in good faith. The result is an administrative scheme based primarily on the discretion of the Minister: see Thomson v. Minister of Fisheries and Oceans, F.C.T.D., No. T-113-84, February 29, 1984.

This interpretation of the breadth of the Minister's discretion is consonant with the overall policy of the Fisheries Act. Canada's fisheries are a "common property resource", belonging to all the people of Canada. Under the Fisheries Act, it is the Minister's duty to manage, conserve and develop the fishery on behalf of Canadians in the public interest (s. 43). Licensing is a tool in the arsenal of powers available to the Minister under the Fisheries Act to manage fisheries. It restricts the entry into the commercial fishery, it limits the numbers of fishermen, vessels, gear and other aspects of commercial fishery.

[58]            The Minister's decision to issue a licence is informed by a report and recommendation from the Appeal Board, which is not itself a creature of statute. The Appeal Board's terms of reference form part of the Commercial Fisheries Licencing Policy for Eastern Canada, 1996 (the "Licencing Policy"). Chapter 7 of the Licencing Policy states that persons unsatisfied with DFO licencing decisions may appeal to a Regional Licencing Appeal Committee and then to the Appeal Board. In this case, no Regional Licencing Appeal Committee hearing was held. Instead, the Minister referred the matter to the Appeal Board, a process which is provided for in Chapter 7, subsection 35(8).

[59]            The Licencing Policy states that the Appeal Board will make recommendations to the Minister on licencing appeals by (Chapter 7, paragraph 35(7)(c)):

(i)          determining if the appellant was treated fairly in accordance with the Department's licencing policies, practices and procedures;

(ii)         determining if extenuating circumstances exist for deviation from established policies, practices, or procedures.

[60]            Malone J.A. for the Federal Court of Appeal in Jada Fishing, supra, discussed the relationship between an Appeal Board's recommendations and the Minister's ultimate decision at paragraphs 12 to 13:

It is clear that the Minister is empowered under section 7 of the Fisheries Act, R.S.C. 1985, c. F-14, with absolute discretion to make decisions with regard to fishing licences. The Panel, on the other hand, was without statutory authority and merely made recommendations which the Minister was entitled to accept or reject. Accordingly, the Panel's recommendations are not in themselves prima facie reviewable. In this case, due to the breadth of the Notice of Application for Judicial Review before Pelletier J., I am well satisfied that this Court can review a discretionary decision of the Minister based, in part, upon the Panel's recommendation.

The present appeal seeks to set aside the Reviewing Judge's order, and refers only to the "decision" of the Panel and its conduct, without reference to the Minister. However, the Minister's decision of April 3, 1998, still stands, and, in any event, the decision or recommendation of the Panel is inexorably connected to his decision, being without legal effect unless "adopted" by the Minister as one of the basis for his decision. In my analysis, this appeal can only continue as a review of the Minister's decision, albeit under the guise of an attack on the Panel's recommendation, based on paragraph 18.1(4) of the Act as a review of the exercise of Ministerial discretion.

[61]            In the present case, the letter from the Assistant Deputy Minister dismissing the applicant's appeal makes reference to the hearing before the Appeal Board and the letter also stated that in reaching his decision to dismiss the appeal, the Minister's decision was based "on a thorough review of all available information." I am satisfied that this included the Appeal Board's recommendation to dismiss the appeal and the Board's findings of fact. While the Appeal Board's report is not primae facie reviewable, it formed part of the basis of the Minister's decision and this Court can therefore inquire as to the reasonableness of the report. I would adopt the approach of Heneghan J. in Fennelly, supra, at paragraphs 44 to 47:

I refer again to Jada Fishing, supra. In that case, the Federal Court of Appeal found that the Appeal Board's recommendation was "inexorably connected" to the Minister's decision and was without legal effect unless "adopted" by the Minister as a basis for his decision. The Court then found that the Appeal Board's recommendation could be challenged in an application for judicial review of the Minister's ultimate decision.

In Jada Fishing, supra, the Minister allowed the appeal. That decision concurred with the recommendation of the Appeal Board. At page 240, the Court noted that the record did not disclose whether the Minister agreed with the Appeal Board's reasons as the decision under review simply stated that the decision had been "based on a thorough review of all available information, and the Panel's recommendation".

In the present case, the decision under review is the Minister's decision, communicated in the letter of September 6, 2002. That letter, after reference to the Appeal Board hearing conducted on April 29, 2002, said that the Minister "has made a decision based on a thorough review of all available information ...". In my opinion, it is reasonable to infer that one basis for the Minister's decision was the report and recommendation of the Appeal Board. This is consistent with the purpose of the Licencing Policy that created the Appeal Board, that the Appeal Board's report and recommendation should inform the Minister's ultimate decision.

It follows, in my opinion, that the Appeal Board's report and recommendation can be reviewed by this Court, as occurred in Jada Fishing, supra, when the Federal Court of Appeal examined the reasonableness of the Appeal Board's recommendation and respect for the requirements of procedural fairness.

[62]            In this case, there are many disagreements concerning what the applicant was told by DFO officials and what promises were or were not made. The parties disagree over whether an exception to the policy was made for the applicant, whether his boat was ever inspected (the applicant states that it was not, while the respondent states that a fishery officer inspected the boat late in 1998), what was said during subsequent meetings between the applicant and DFO officials and what conversation, if any, took place between the applicant and the Appeal Board Chairperson.

[63]            Without getting into these unresolved factual issues, I am of the opinion that based on the facts of this case, the Court's intervention is warranted. The Appeal Board' recommendations read in part:

However, the board concludes that Mr. Decker did not acquire all the necessary gear to meet the Department of Fisheries and Oceans checklist of the gear that had to be installed on the vessel before the December 31, 1998 deadline.

[64]            A perusal of the material that was before the Appeal Board indicates to me that there was no evidence of a "checklist" of required gear before the Appeal Board. The Appeal Board did not decide whether it believed the applicant had been given an exemption by Gerald Marsh. As well, its finding that the applicant had advised a fishery officer he did not have the required equipment before the gear-up deadline is directly contradictory to the sworn evidence of the applicant. No explanation is given for this finding.

[65]            I am also of the view that the Appeal Board failed to fulfill its mandate of determining whether extenuating circumstances existed that would allow deviation from established DFO policy. DFO itself, during the hearing, indicated that demonstrated financial commitment was one basis for finding that extenuating circumstances existed so as to permit a licence to be issued to the applicant by the Minister. I am of the opinion that the Appeal Board's report to the Minister should have contained an analysis of this point to determine whether the applicant would qualify under this heading.

[66]            As I already noted, the Appeal Board's report was one of the bases on which the Minister made his decision to refuse the appeal as his refusal letter specifically referred to the date of the hearing before the Appeal Board. In fact, this is the only basis for which the Minister gave specifics. His refusal letter simply states his review was based on a "thorough review of all available information." The specifics of the other information on which he based his decision is not made known in the letter.

[67]            I am of the view that the Minister, because he relied on the Appeal Board's recommendations, made his decision based on a misapprehension of the facts. That is, that the applicant did not have all the gear to meet DFO's checklist of gear that had to be installed on the applicant's vessel.

[68]            Also, there is no evidence that the Minister considered whether the applicant fitted in the "extenuating circumstances" category. Although the Appeal Board had evidence on this point, it made no analysis of that evidence.

[69]            I am of the view that the application for judicial review must be allowed. The decision of the Minister refusing the issuance of a shrimp licence to the applicant is quashed. The matter is remitted back to the Minister for redetermination in accordance with these reasons. The Appeal Board did not make findings on two important issues: (1) was an exemption given to the applicant, and (2) whether extenuating circumstances existed due to demonstrated financial commitment by the applicant. The Minister is therefore not precluded from referring the matter to a differently constituted Appeal Board to determine those issues, as well as the issue of the contradiction between the alleged failure to meet the equipment checklist and the affidavit of the applicant on this point. Any such Appeal Board should follow the Appeal Board's 1996 mandate when hearing the appeal.

[70]            The applicant shall have his costs of the application.

ORDER

THIS COURT ORDERS that:

1.          The application for judicial review is allowed and the matter is referred back to the Minister for redetermination in accordance with these reasons. The Minister is not precluded from referring the matter back to a differently constituted Appeal Board to make the necessary determinations in accordance with the Appeal Board's 1996 mandate.

2.          The applicant shall have his costs of the application.

                                                                               "John A. O'Keefe"                

                                                                                                   J.F.C.                           

                                     FEDERAL COURT

                                      TRIAL DIVISION

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                  T-1124-03

STYLE OF CAUSE: KEVIN DECKER

                                                                                              Applicant

and

ATTORNEY GENERAL FOR CANADA

                                                                                          Respondent

PLACE OF HEARING:                                 ST. JOHN'S, NEWFOUNDLAND AND LABRADOR

DATE OF HEARING:                                   JUNE 18, 2004

REASONS FOR ORDER

AND ORDER BY:    O'KEEFE J.

DATED:                     OCTOBER 20, 2004

APPEARANCES BY:

Jerry Wetzel

FOR THE APPLICANT

Reinhold M. Endres, Q.C.

FOR THE RESPONDENT

SOLICITORS OF RECORD:

Wetzel's Law Office

Grand Falls-Windsor, Newfoundland and Labrador

FOR THE APPLICANT

Morris Rosenberg

Deputy Attorney General of Canada

FOR THE RESPONDENT

             FEDERAL COURT

Date: 20041020

Docket: T-1124-03

BETWEEN:

KEVIN DECKER      

                                            Applicant

and

ATTORNEY GENERAL FOR CANADA

                                        Respondent

REASONS FOR ORDER AND ORDER