Durant v. Canada (Minister of Fisheries and Oceans), 2002 FCT 327

Date: 20020322

Docket: T-1836-00

Neutral citation: 2002 FCT 327

Ottawa, Ontario, this 22nd day of March, 2002

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

BETWEEN:

EMILY CHARLOTTE DURANT

Applicant

- and -

CANADA (MINISTER OF FISHERIES AND OCEANS)

Respondent

REASONS FOR ORDER AND ORDER

O'KEEFE J.

[1]                 This is an application under section 18.1 of the Federal Court Act, 1998, R.S.C. 1985, c. F-7 for judicial review of a new policy of the Minister of Fisheries and Oceans (or his delegate) that was communicated to the public on April 26, 2000 and wherein the applicant, Emily Charlotte Durant and other oyster cleaners from Prince Edward Island were prohibited as of September 15, 2000 from continuing a previously accepted practice of accompanying licensed oyster fishers on their fishing vessels.

Background

[2]                 Emily Charlotte Durant (the "applicant"), the applicant in the judicial review application, had been an oyster cleaner on her husband's oyster fishing boat since the spring of 1995.

[3]                 The applicant obtained from the respondent each year, a "fisher's registration card" which she obtained with the belief that it lawfully registered her as an oyster cleaner for the registered year. She obtained this card for the year 2000.

[4]                 The respondent made the new policy in April, 2000 that no oyster cleaners would be allowed on oyster boats after September 15, 2000. The new policy was communicated to the public in a press release of the Department of Fisheries and Oceans ("D.F.O.") dated April 26, 2000.

[5]                 The applicant worked as an oyster cleaner on her husband's boat in the spring season until July 15, 2000. On September 15, 2000, the first day of the fall oyster fishing season, she accompanied her spouse on his boat and cleaned oysters while he fished.

[6]                 D.F.O. officers came aboard the Durant boat and requested to see the applicant's papers. She presented the officers with her registration card. She was then charged under section 78 of the Fisheries Act, R.S.C. 1985, c. F-14 and pursuant to paragraph 4(1)(b) of the Maritime Provinces Fishery Regulations, SOR/93-55 for allegedly fishing oysters, without being authorized to do so. The charges under the Fisheries Act against Durant were subsequently dismissed by the Prince Edward Island Provincial Court on September 17, 2001.

[7]                 The relief sought by the applicant in this application for judicial review is different from the relief that was sought (and subsequently dismissed) by the respondent in the criminal proceeding pursuant to the Fisheries Act, supra. In the criminal proceeding, the respondent simply sought a conviction to the charge. In this judicial review application, the applicant challenges the change in policy of the D.F.O., alleges a failure to honour terms of the oyster cleaner registration card, and seeks a variety of remedies, including an order quashing the above decision and awarding damages.

Applicant's Submission

[8]                 The applicant submits that the Minister and his agents abused their public power and so caused damages to the applicant.

[9]                 The applicant submits that the applicant had a legitimate expectation that the Minister would cause the terms of the registration card to be carried out and honoured.

[10]            The applicant submits that the applicant was owed a duty of fairness by the Minister with respect to issuing, amending, altering, suspending, nullifying or cancelling the registration card issued to her.

[11]            The applicant submits that the new policy was based on false or unfounded considerations, without the benefit of a comprehensive review.

[12]            The applicant submits that the applicant is entitled to request material which is or ought to be in the possession of the Minister pursuant to Rule 317(1) of the Federal Court Rules, 1998.

[13]            The relief sought by the applicant is as follows:

1.          A declaration that the Minister and his agents abused their public power to regulate and protect the fishing industry.

2.          An order quashing the decision of the D.F.O. which order required the applicant to discontinue her livelihood as an oyster cleaner under the authority of a registration card issued by the respondent for the period January 1, 2000 to December 1, 2000.

3.          A declaration that the decision not to allow the oyster cleaners to engage in their livelihood is invalid and that the applicant had a legitimate expectation to expect the Minister would honour the terms of the registration card issued to the applicant.

4.          A declaration that the Minister, in rendering his decision, did not act in accordance with procedural fairness as no written notice of the decision to amend the applicant's registration card and no opportunity was given to the applicant to respond to the amendments.

5.          A declaration that the Minister's decision not to allow the oyster cleaners to continue to engage in their livelihood was based on false or unfounded considerations without the benefit of a comprehensive review of the situation.

6.          An order for general damages for lost profits and for exemplary and punitive damages.

7.          An order for production of certain documents pursuant to subsection 317(1) of the Federal Court Rules, 1998.

Respondent's Submissions

[14]            The respondent submits that this Court lacks jurisdiction under paragraph 18(1)(a) of the Federal Court Act, 1998, supra to hear this judicial review on the grounds that there is no decision within the meaning of the Federal Court Act, 1998, supra.

[15]            The respondent contends that (should the Court accept jurisdiction to review the change in policy) the appropriate standard of review for decisions under section 78 of the Fisheries Act, supra and section 4 of the Maritime Provinces Fishery Regulations, supra is that of patent unreasonableness, following the decision of Rothstein J. (acting in his capacity of ex officio member of the Trial Division) in Tucker v.Canada (Minister of Fisheries and Oceans), [2000] F.C.J. No. 1868.

[16]            The respondent submits that there is no statutory requirement that a comprehensive review be conducted to enforce the regulations, and that the change in policy was not patently unreasonable. In the alternative, the respondent submits that it was a policy decision that would only be reviewable on the grounds of bad faith, failure to conform to the principles of natural justice where the application is required by statute and if there were reliance upon extraneous considerations. The respondent submits that there is no evidence of bad faith and that the D.F.O. has not committed a reviewable error.

[17]            The respondent contends that the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship) [1999] 2 S.C.R. 817 held that the doctrine of legitimate expectations is part of the doctrine of fairness or natural justice and does not create substantial rights. The respondent submits that this doctrine is not applicable here and cannot be used by the applicant to create substantive rights that a registration card authorized the applicant to engage in oyster fishery without a license for a set period of time.

[18]            Issues

1.          Does the 30 day limitation period of subsection 18.1(2) of the Federal Court Act, supra apply to this application?

2.          What is the standard of review?

3.          Was a decision rendered and what was that decision?

4.          Were reasons given?

5.          Did the D.F.O. breach a duty of natural justice or procedural fairness?

6.          Does the doctrine of legitimate expectations apply?

7.          Did the Minister and agents abuse their public power to regulate and protect the fishing industry?

8.          Can the applicant claim damages in a judicial review application?

9.          The request for material pursuant to Federal Court Rule 317(1).

Relevant Statutory Provisions, Regulations and Rules

[19]            The powers of the Trial Division and grounds for review appear in subsections 18.1(1), (2), (3) and (4) of the Federal Court Act, R.S.C. 1985, c. F-7:

[20]            Subsections 78(a) and (b) of the Fisheries Act, supra state:

[21]            Section 4 of the Maritime Provinces Fishery Regulations, supra state:

[22]            Rule 317 of the Federal Court Rules, 1998, supra states:

Analysis

[23]            Issue 1

Does the 30 day limitation period of subsection 18.1(2) of the Federal Court Act, supra apply to this application?

The respondent has argued that since the applicant learned on April 28, 2000 about the changes in policy announced by Mr. Scarth on April 26, 2000, the application for judicial review should have been filed within 30 days of April 28, 2000. The application for judicial review was not filed until October 3, 2000. I would agree with the respondent if the matter to be reviewed was a "decision or order". The respondent argued that the announcement of Mr. Scarth was not a decision within the meaning of the provisions of the Federal Court Act, supra. If Mr. Scarth's announcement is not a "decision or order", then the 30 day limitation period of subsection 18.1(2) of the Federal Court Act, supra does not apply (see Krause v. Canada [1999] 2 F.C. 476 (F.C.A.) paragraphs 20, 23 and 24). I agree that the announcement by Mr. Scarth is not a "decision or order" and therefore the 30 day limitation period of subsection 18.1(2) of the Federal Court Act, supra does not apply to this application for judicial review.

[24]            Issue 2

What is the standard of review?

The D.F.O. has the authority to administer the Fisheries Act, supra and related regulations. As such, the change in policy announced by the D.F.O. involving the Maritime Provinces Fishery Regulations, supra should be afforded considerable deference by the Court and should only be set aside where the change in policy is patently unreasonable. Of course, with respect to questions of law, the D.F.O. must be correct.

[25]            Issue 3

Was a decision rendered and what was that decision?

From a review of the material, a change in policy was agreed upon by James Jones, the Regional Director General of the Gulf Fisheries Management Region, that the D.F.O. should announce that the regulations would be enforced beginning with the fall season on September 15, 2000. It is the change in policy to enforce the regulations as announced by Mr. Scarth that is under review in this application. As I have already stated, the Scarth announcement is not itself a "decision or order". However, based on the reasoning in Krause, supra, the matter can be reviewed.

[26]            Issue 4

Were reasons given?

The April 26, 2000 press release from D.F.O. stated in part as follows:

DFO and the PEI Shellfish Association share concerns regarding the conservation and sustainability of the Island's oyster stocks in the face of increasing fishing pressures. Strong oyster prices and good oyster bed productivity had resulted in the activation of inactive licenses and an increase in the practice of taking "cleaners" on board oyster dories.

To the extent that reasons are necessary when D.F.O. is changing their policy with respect to the enforcement of the regulations, the above constitutes reasons.

[27]            Issue 5

Did the D.F.O. breach a duty of natural justice or procedural fairness?

In changing their policy, the applicant contends that the D.F.O. did not consult with oyster cleaners. However, the affidavit of Mr. Scarth, Area Director of the D.F.O., contends that public consultations took place and were the subject of reports in the media.

[28]            Furthermore, the position of the D.F.O. is that the new policy does not change the law, only the enforcement of that law. However, the applicant submits that the acquiescence of the respondent (i.e. failure to enforce the regulation over a number of years) has lead to a reasonable presumption and legitimate expectation that natural justice or procedural fairness should apply. The respondent was aware that a considerable number of people were earning a living as oyster cleaners and helpers (paragraph 13 of Mr. Scarth's affidavit).

[29]            The applicant contends that she had a valid registration card for oyster cleaning for the calendar year of 2000. Attached to her affidavit, she provided a "Registration(s) and/or Fishing Licence(s)" which was issued on April 28, 2000 by Fisheries and Oceans Canada. The fisher category is left blank, so it is unclear on the face of it what the licence covers. A license for the calendar year 1998, with an issuance date of October 15, 1998, was also provided. The 1998 licence listed "non core" under the fishing category. This license, on the evidence, is merely a registration card and not a license to fish (for oysters or any other type of fish).

[30]            The applicant alleges that through the actions or inactions of the D.F.O., she was lead to believe that her registration card was all she required to be an oyster cleaner. In addition, the applicant contends that the respondent knew or ought to have known that she, and approximately 300 other oyster cleaners, were oyster cleaners that would be directly affected by the change in policy. As such, the applicant submits that they were owed a duty of procedural fairness which includes specific notice of the change in policy and an opportunity to respond.

[31]            On or about April 28, 2000, the applicant saw the news release issued by the D.F.O. that described the new policy to enforce existing provisions of the Maritimes Provinces Fishery Regulations, supra, which would have the effect of preventing oyster cleaners from accompanying oyster fishers on their boats for the opening of the fall oyster season on September 15, 2000. On the record, there is no evidence that in fact any oyster cleaners did not receive notice of the D.F.O.'s new policy.

[32]            The news release notice of the new policy invited the reader to contact Mr. Scarth, the Area Director of the D.F.O. for further information. This provided the applicant with more than four months in which to contact, discuss, and try to persuade the D.F.O. to decide not to implement the new enforcement policy. The respondent contends that the notice period, which was more than five months, allowed an appropriate adjustment time for the oyster cleaners.

[33]            On the evidence, Ms. Coughlin, the Chair of the PEI Shellfishers' Coalition made use of the notice period to try to persuade the D.F.O. to change their decision. In a letter to Ms. Coughlin, dated September 11, 2000, Mr. Scarth wrote:

I am writing to follow up on our meeting of September 5 and on Ms. MacCaull's letter of September 7, 2000, concerning the matter of participation of cleaners in the oyster fishery.

. . . As we discussed during the meeting, the department's primary objective relates to the conservation and sustainability of the resource. When working toward this objective, we employ a precautionary approach to decision making. Essentially, this means that when our research, monitoring and experience indicate that a resource may be at risk, we must act prudently and promptly by taking management decisions that, if necessary, err on the side of conservation.

During the DFO presentation, we reviewed the biology, explained what limited information is available to support the decision-making process and outlined the risks posed by the current situation including an unprecedented increase in catches [footnote] and significant effort increases [footnote] concurrent with a peak in the natural productivity of the oyster stock . . .

. . . I would like to restate that this decision was not taken lightly given the past participation in the fishery by the cleaners. As fishery resources are finite and variable, there must be limits on participation in order to protect the resource and sustain the livelihoods dependent upon it. Despite our conservation concerns and the views of the PEI Shellfish Association, we announced that the spring season would be used as a period of adjustment for those affect by the decision.

I regret that my response cannot be more positive relative to your wishes. However, I trust you can appreciate why we have concluded that we must proceed with a precautionary approach relative to increasing effort in the fishery by enforcing the provision of the regulations respecting licenses beginning on September 15, 2000.

[34]            The above letter is evidence that the D.F.O. did provide notice and an opportunity to be heard prior to the implementation of the new policy. The D.F.O. could have chosen a longer notice period, for example such that oyster cleaners could have been informed prior to registering for the following years' registration card that they would not be allowed to use it as an oyster cleaner. That may have provided a more prudent route and would have allowed the cleaners to use the registration card for its full term. However, on the evidence, it appears the respondent did comply with a level of procedural fairness and natural justice that in my view is acceptable under these circumstances.

[35]            Issue 6

Does the doctrine of legitimate expectations apply?

The applicant submitted that since she had cleaned oysters on her husband's boat for approximately 13 years, she had a legitimate expectation that she would still be able to clean oysters until the current registration card expired. In Canada, the doctrine of legitimate expectations is a part of the doctrine of fairness and natural justice. The doctrine of legitimate expectations cannot create substantive rights (see Baker v. Canada, supra at pages 839 - 840). In the present case, D.F.O. had not enforced for 13 years, what it believes to be a requirement to allow a fisher to clean oysters on a boat. D.F.O. states that subsection 4(1) of the Maritime Provinces Fishery Regulations, supra requires the oyster cleaner to have both a licence (paragraph 4(1)(a)) and a fisher's registration card (paragraph 4(1)(b)) in order to clean oysters. Only the registration card was issued to the applicant. Although subsection 4(1) of the Regulations had been in force, the D.F.O. had not in the past required the oyster cleaners to have the license required by paragraph 4(1)(a) of the Regulations. Now, the D.F.O. has changed their policy to enforce this part of the Regulations and require oyster cleaners to have both a license and a registration card. In order to have the applicant satisfy the legal requirements, I would have to say in effect, that either she has a legitimate expectation to have the license required by paragraph 4(1)(a) issued to her or that she could clean with only a registration card. If I did this, I would be creating a substantive right which by Baker, supra, I am prevented from doing by employing the doctrine of legitimate expectations. While I agree that it appears to be unfair to charge the applicant a fee for one year registration and then only allow her to clean oysters with it for the spring season, there is nothing I can do in this application to remedy this situation. As well, I am bound by the law and the law seems to require both a license and a registration card to clean oysters. This statement of law is based on the assumption that oyster cleaning constitutes oyster fishing so as to have the regulations apply. As a result, I find that the doctrine of legitimate expectations does not apply.

[36]            Issue 7

Did the Minister and agents abuse their public power to regulate and protect the fishing industry?

I have carefully reviewed the record and I cannot find any evidence that the Minister or his agents abused their public power. Based on information that was gathered, a change in policy was made to enforce the Regulations as a result of concerns about conservation and sustainability of the industry.

[37]            Issue 8

Can the applicant claim damages in a judicial review application?

The applicant cannot claim damages in a judicial review application (see Tench v. Canada (Attorney General) (1999), 179 F.T.R. 126 (F.C.T.D.)).

[38]            Issue 9

The request for material pursuant to Federal Court Rule 317(1).

Under this rule, a tribunal will be required to produce documents only if they are relevant to an application. The relevance of a document is assessed with reference to the grounds of review set out in the originating notice of application and in the supporting affidavits (Canada (Human Rights Commission) v. Pathak, [1995] 2 F.C. 455 (C.A.)).

[39]            In this case, it appears that the applicant has received the documents sought that are relevant to this application. Although the D.F.O. refused to issue some requested documents, they did so in accordance with Rule 317(1) in that a copy of the documents were already in the applicant's possession or were irrelevant to these proceedings.

[40]            I am not prepared to grant the relief requested by the applicant and the application for judicial review is dismissed.

[41]            I am not prepared to make an award of costs against the applicant due to the fact that the registration card was issued to her for both the spring and fall oyster fishing seasons and then she was not allowed to use this card for the fall season to clean oysters.

ORDER

[42]            IT IS ORDERED that the application for judicial review be dismissed.

[43]            AND IT IS ORDERED that there shall be no order as to costs.

                                                                                   "John A. O'Keefe"             

                                                                                                      J.F.C.C.                      

Ottawa, Ontario

March 22, 2002