Date: 20020624
Docket: T-2263-01
Neutral citation: 2002 FCT 703
Ottawa, Ontario, June 24, 2002
Present: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
AURÉLIEN HACHÉ, LUCIEN CHIASSON, SYLVIE CHIASSON, ARMAND FISET, JEANNOT GUIGNARD, HÉLIODORE AUCOIN, GILDARD HACHÉ, GUY HACHÉ, RHÉAL HACHÉ, ROBERT F. HACHÉ, GREG HINKLEY, VINCENT JONES, SOLANGE LANTEIGNE, JEAN-PIERRE LEBOUTHILLIER, RHÉAL H. MALLET, ANDRÉMAZEROLLE, EDDY MAZEROLLE, ALBANIE NOËL, ALPHÉE NOËL, SERGE C. NOËL, GILLES NOËL, JOSEPH A. NOËL, LÉVI NOËL, LORENZO NOËL, MARTIN NOËL, MATHURIN NOËL, NICOLAS NOËL, ONÉSIME NOËL, PAUL NOËL, RAYMOND NOËL, RENARD NOËL, ROBERT ROSS, BRUNO ROUSSEL, JEAN-CAMILLE NOËL, VALMI ROUSSEL, DONAT VIENNEAU, FERNAND VIENNEAU, RHÉAL VIENNEAU, MATHIAS ROUSSEL, SERGE BLANCHARD, ROBERT BOUCHER, ELIDE BULGER, JEAN-GILLES CHIASON, ROMÉO G. CORMIER, BERNARD DUGUAY, THOMAS DUGUAY, DONALD DUGUAY, EDGAR FERRON, WILBERT GODIN, AURÈLE GODIN, VALOIS GOUPIL, EUCLIDE GUIGNARD, FLORENT GUIGNARD, JACQUES E. HACHÉ, JEAN-PIERRE HACHÉ, ROBERT G. HACHÉ, DONALD R. HACHÉ, ULYSSE HACHÉ, GAËTAN H. HACHÉ, GABRIEL JEAN, JEAN-VICTOR LAROCQUE, DASSISSE MALLET, DELPHIS MALLET, ALBERT A. NOËL, GILLES A. NOËL, DOMITIEN PAULIN, SYLVAIN PAULIN, ALMA ROBICHAUD, ADMINISTRATICE DE LA SUCCESSION DE JEAN-PIERRE ROBICHAUD, SYLVA HACHÉ, MARIO SAVOIE, LES PÊCHERIES JIMMY L. LTÉE, ERIC GIONET, ADMINISTRATEUR DE LA FIDUCIE ALLAIN O. GIONET, LES PRODUITS BELLE-BAIE LTÉE, OLIVA ROUSSEL, E. GAGNON ET FILS LTÉE, BERNARD ARSENEAULT, GÉRARD CASSIVI, JACQUES COLLIN, RAYMOND COLLIN, ROBERT COLLIN, MARC COUTURE, LES CRUSTACÉES DE GASPÉ LTÉE, CIE 2973-1288 QUÉBEC INC., CIE 2973-0819 QUÉBEC INC., BRUNO DUGUAY, CHARLES-AIMÉDUGUAY, ALBAN HAUTCOEUR, FERNARD HAUTCOEUR, JEAN-CLAUDE HAUTCOEUR, ROBERT HUARD, CHRISTIAN LELIÈVRE, ELPHÈGE LELIÈVRE, JEAN-ÉLIE LELIÈVRE, JULES LELIÈVRE, JEAN-MARC MARCOUX, DOUGLAS McINNIS, ROGER PINEL, JEAN MARC SWEENEY, MICHEL TURBIDE, RÉAL TURBIDE, PÊCHERIES DENISE QUINN SYVRAIS INC., STEVEN ROUSSY, GENEVIÈVE ALLAIN, FRANCIS PARISÉ, MARTIAL LeBLANC, DANIEL DESBOIS, ROLLAND ANGLEHART, JACQUES LANGIS, JEAN-PIERRE HUARD, CLAUDE GIONET, CAROL DUGUAY, DENIS DUGUAY, PAUL CHEVARIE, THÉRÈSE VIGNEAU, ADMINISTRATICE DE LA SUCCESSION DE BENOÎT POIRIER, DENIS ÉLOQUIN, CLAUDE POIRIER, HENRY-FRED POIRIER, ROBERT THÉRIAULT, RAYNALD VIGNEAU
Plaintiffs
- and -
SA MAJESTÉLA REINE EN CHEF DU CANADA telle que représentée par le MINISTÈRE DES PÊCHES ET DES OCÉANS et MINISTÈRE DES RESSOURCES HUMAINES ET DE DÉVELOPPEMENT CANADA
Defendants
REASONS FOR ORDER AND ORDER
[1] This is a motion for summary judgment by the Plaintiffs against the Defendants for $9.1 million alleging that there is no serious issue to be tried between the parties. The Plaintiffs, snow crab fishers in the province of New Brunswick, have at all material times been holders of commercial crab licenses pursuant to the Fisheries Act, R.S.C. 1985, c. F-14. They are or were members of one of four different crab fishing Associations.
[2] The Defendants are Her Majesty the Queen as represented by the Minister of Fisheries and Oceans (the Minister) and the Minister of Human Resources and Development Canada. The former regulates the distribution of Employment Insurance benefits through the Employment Insurance Act, S.C. 1996, c. 23, and the latter regulates fishing pursuant to the Fisheries Act, supra.
[3] On December 21, 2001, the Plaintiffs commenced the within action against the Defendants seeking damages of $9,139,132.54, the amount they paid into the "Funds". In their action, the Plaintiffs also seek punitive damages, interest, and costs. On February 14, 2002, the Defendants filed their Statement of Defence.
[4] The background facts of this matter are very well set out by Rouleau J. in Aucoin v. Canada (Minister of Fisheries and Oceans), [2001] F.C.J. No. 1157 (Aucoin) where the Court was seized with an application for judicial review by some of the Plaintiffs in the within action challenging the Minister's decision to hold back quota until the Applicants paid into the Funds as set out in a 2001 fishing plan. The facts are as follows:
¶ 4 Some 130 snow crab fishers are licenced to harvest in Zone 12 which is an area on the west side of the Gulf of St. Lawrence and is made up of individuals residing on the coasts of New Brunswick, Quebec and Newfoundland bordering the Gulf.
¶ 5 As early as 1995, as a result of amendments to the then Unemployment Insurance Act, it became evident that employees working in snow crab processing plants were unable to work a sufficient number of weeks in order to qualify for benefits upon the termination of their seasonal employment.
¶ 6 Some time during the autumn of 1995, officials of the Department of Fisheries and Oceans (hereinafter the "Department") initiated discussions with the Zone 12 snow crab fishers with a view to implementing a program to subsidize the snow crab plant workers. The purpose was to create a fund to which the snow crab fishers would contribute together with the province of New Brunswick. The fund would undertake make-work projects in cooperation with the Province of New Brunswick; the laid-off plant workers along with certain members of the crew of some fishing vessels would be hired; as a result they would acquire a sufficient number of weeks of insurable employment in order to qualify for benefits. It should be noted in passing that in June, 1996, the Government of Canada passed certain amendments to the now Employment Insurance Act taking effect January 1, 1997 which altered the eligibility rules from weeks of insurable employment to hours in order to qualify for benefits.
¶ 7 For a number of years the Department of Fisheries and Oceans had been contemplating a fisheries management partnering concept. There already existed in some areas co-management allowing for the input of fishers in the direct management of the fishery. Various groups had been invited to the decision-making process and in some cases shared the cost of managing the fishery. The new initiative was to include on-shore workers in various fish processing plants; the ultimate aim was to create shared responsibility among the various parties in managing the fishing industry and provide longer term employment.
¶ 8 In anticipation of the partnering concept and on a purely voluntary basis, the licenced snow crab fishers were prepared to come to the aid of their fellow citizens in the industry and an agreement in principle was entered into in February, 1996 between officials of the Department and various associations representing the licenced snow crab fishers. It was agreed that a certain percentage of the gross revenue realized by the various fishers would be contributed to a fund for the purpose of providing the necessary financial support for the creation of make-work projects for the laid-off on-shore snow crab plant workers. The agreement was conditional and it was recited therein as follows:
"Une entente de partenariat entre le ministère des pêches et des océans et les 130 pêcheurs de crab des neiges de la Zone 12 lorsqu'une telle entente sera légalement possible selon la nouvelle loi sur les pêches."
¶ 9 The respondent Fonds de Solidarité de l'Industrie du Crabe des Neiges Inc. (hereinafter the "Fund") is a non-profit corporation which was incorporated on May 22, 1997. The respondent Partenariat du Crabe des Neiges (hereinafter the "Partenariat") was not incorporated until May 10, 1999 at the request of the Minister. The "Partenariat" does not own or operate any fishing vessel and is not engaged in fishing as defined in the Act.
¶ 10 The unchallenged evidence of the affiant Aurélien Haché, one of the applicants, outlines how the scheme operated. In the spring of each year a directive was issued by the officials of the Department that 20% of each fishermen's traditional quota was withheld and transferred to the "Partenariat". Upon payment by each fisher to the "Partenariat" of a sum of money, based on his total per pound quota, the "Partenariat" would then notify the Department that the individual had contributed the sum due on his per pound catch; they in turn would then retransfer the money to the "Fund" and the Department officials would re-release the withheld 20% of the quota to the fisher. [My emphasis].
¶ 11 All of these applicants are part of an association called "Crabiers du Nord-Est Inc." whose principal spokesman is Aurélien Haché. In February, 1996, one of the applicants, Robert Haché, executed the tentative agreement on their behalf. The Minister then drafted Bill C-62 of 1996 which had its first reading in the House of Commons on October 3, 1996. This Bill brought a number of amendments to the proposed Act and regulations respecting fisheries and was designed to improve and authorize "fishery management agreements" which could have been entered into. Subsections 17(1) through (4) of the proposed legislation would have authorized the Minister to enter into fisheries management agreements and would have among other things:
17(2) An agreement may establish
[...]
d) the obligations, responsibilities and funding arrangements with respect to management of the fishery.
¶ 12 Unfortunately, Bill C-62 died on the order paper when Parliament was dissolved on April 27, 1997.
¶ 13 A press release dated May, 1997 outlining a management of the snow crab fishery specifically stated that a contemplated agreement was intended to create a fund to assist the workers who were employed in the snow crab plants in order to extend weeks of employment for those who would be losing their seasonal jobs.
¶ 14 The snow crab fishers respected the terms of the agreement even though Bill C-62 had died in the order paper and they continued to voluntarily make payments to the "Partenariat" and did not question their obligation until some time in February of the year 2000 when the affiant, Mr. Haché, wrote the Auditor General of Canada, L. Denis Desautels, questioning the legality of the scheme. In his reply dated March 1, 2000, the Auditor General wrote:
Plus précisément, une étude de cas de ce chapitre décrit nos préoccupations face à l'imposition d'une redevance aux pêcheurs, ce qui n'était pas prévu par la loi.
¶ 15 In his affidavit, Mr. Haché refers also to a report prepared by the Auditor General of Canada dated July 17, 2000 in which the Auditor General refers to:
Les fonds de solidarité: imposition aux pêcheurs de frais qui ne semblent pas prévus par la loi
¶ 16 Mr. Desautels confirms having enquired into the matter and acknowledges that it was undertaken by fishers on a purely voluntary basis; he provides a brief history of the agreement and concludes as follows:
Nos préoccupations. Le Ministère participe aux décisions concernant les fonds et s'assure que la redevance est payée et virée au fonds de solidarité. À notre avis, par ces mesures, il a en fait imposé aux pêcheurs des frais d'accès à la ressource, ce qui ne semble pas prévu par la loi.
De plus, le Ministère n'a aucun mécanisme pour rendre compte de ses activités en regard des fonds. Il a déclaré qu'il n'a pas de lien de dépendance avec le fonds; il n'agit donc pas, selon nous, de façon transparente et responsable.
¶ 17 The provisional agreement of February, 1996 provided that the funds being contributed by the fishers were to be paid to the Department of Fisheries and Oceans, Maritime Region. In light of the fact that Bill C-62 died on the order paper this did not occur. Hence the payments were made into the "Fund" rather than as directed in the provisional agreement. (See Exhibit C to the affidavit of Aurélien Haché sworn April 17, 2001)
¶ 18 An information bulletin issued by the Department of Fisheries and Oceans dated April 9, 2001 clearly indicates the so-called partnering agreements presumed ratification by Parliament because at page 4 the following is written:
Where Do We Go From Here - What Will Happen Next?
The legislative authority to enable DFO to enter into partnering agreements has been tabled in Parliament. The new Fisheries Act, if passed, will provide the basis for the legal implementation of partnering agreements. Until the new Act is law, legally binding partnering agreements, with respect to the management of the fishery, cannot be entered into.
¶ 19 Fisheries officials were undoubtedly aware that Bill C-62 had died on the order paper and were also undoubtedly aware as early as July of 2000 of the Auditor General's concerns about the appropriateness of this whole scheme. Nevertheless, on April 10, 2001, a press release was issued by Fisheries and Oceans Canada. It refers to the details of the 2001 snow crab management plan. In the body of this news release, after having referred to the Gulf of St. Lawrence areas 12, 25 and 26, the press release states:
It is anticipated that the participants of the co-management approach will continue to respect their commitment to the industry lead initiative of the solidarity fund.
¶ 20 In his affidavit, Mr. Haché swore that on April 9, 2001, Monique Baker and Rhéal Vienneau, resource managers of the Department located in Moncton, New Brunswick, confirmed in the name of the Minister that out of the total quota allocated to the traditional license holders, the Minister would be transferring 2,125 tons to the "Partenariat" as it had done in the previous fishing season. He further swears in his affidavit that he was advised that the "Partenariat" would retain this portion of the quota until the Minister was advised that the licenced snow crab fishers had paid their individual proportionate share to the "Partenariat".
¶ 21 The procedure adopted in the past for the fishing season 1999-2000 which was to be adhered to in the year 2001, is outlined in a document issued by the Resource Management Branch of Fisheries and Oceans Canada from Moncton, New Brunswick. This document is dated April 8, 2000 and is Exhibit "S" to the affidavit of Mr. Haché. It refers to the subject matter "Forms for Temporary Transfers" and to the procedure that will be followed for the allocation and co-management of 2,125 tons. It indicates that the "Partenariat" will receive a temporary permit for 2,125 tons; that the "Partenariat", upon receipt of funds, instructs the Department concerning each individual fisher. The "Partenariat" then forwards the request to the Minister's representative Monique Baker in Moncton, New Brunswick, who verifies the amount owing by each individual fisher and, once satisfied, the proper transfer form "shall be given to each fisher who must have it on board his vessel".
¶ 22 On April 10, 2001, Fisheries and Oceans Canada issued a press release under the heading: "Details of the 2001 Snow Crab Management Plan for Areas 12, 25 and 26 - Southern Gulf of St. Lawrence". This press release states that "it is anticipated that the participants of the co-management approach will continue to respect their commitment to the industry-led initiative of the Solidarity Fund".
¶ 23 On April 19, 2001, the Department of Fisheries and Oceans through its Regional Director General, Mr. J.B. Jones, advises all licence holders in areas 12, 25 and 26 that once again, in light of the joint project agreement, Fisheries and Oceans will be allocating a percentage of the snow crab quota to the "Partenariat".
¶ 24 Following the press release of April 10 and the letter from the Department dated April 19, 2001, the applicants launched this motion on April 30, 2001. On May 2, 2001, Mr. Haché on behalf of his association wrote the Department to the attention of Mrs. Baker advising that the judicial review was to be entertained by the Federal Court on May 22, 2001; he was satisfied that most of the snow crab fishers would have fulfilled their entire quota before the matter could be heard and proposed that the monies which were to be paid to the "Fund" be held in trust until the matter was disposed of. Mrs. Baker replied on May 10, 2001 that she was relying on instructions received from her counsel and was non-committal.
¶ 25 In letters dated May 1, 2001, all these applicants forwarded to the Department, to the attention of Mrs. Baker, their cheques made payable to the "Partenariat" which in total exceeded $247,000.00.
¶ 26 By May 5, 2001, all of these applicants had paid in the extra levy in order to free up the 20% withheld quota. On May 8 and 10, 2001, the Department issued temporary seasonal snow crab licences for 2001 in the name of the "Partenariat" representing the 20% of the withheld snow crab quota and apparently these licences were valid as of May 10, 2001 and were expected to expire shortly thereafter.
¶ 27 The facts that I have recited are unchallenged by the respondents and none of the affidavits filed by Department officials in any way contradict the circumstances and the facts surrounding this dispute.
Aucoin, supra at paras. 4-27
[5] Rouleau J. found that the decision of the Minister to transfer 20 percent of the quota to the "Partenariat" was null and void and ultra vires his powers under the Fisheries Act. The decision was set aside and the Minister prohibited from implementing the Plan. The decision in Aucoin, supra was not appealed.
[6] The Plaintiffs bring this motion for summary judgment alleging that because the Court in the Aucoin case decided that the Minister acted beyond its licensing powers, it follows that the Plaintiffs are entitled to the return of all monies paid with respect to the Funds.
[7] Motions for summary judgment are brought under rules 213-218 of the Federal Court Rules, 1998, SOR/98-106 (the Rules). Rule 216 reads as follows:
| Where no genuine issue for trial
216. (1) Where on a motion for summary judgment the Court is satisfied that there is no genuine issue for trial with respect to a claim or defence, the Court shall grant summary judgment accordingly.
Genuine issue of amount or question of law
(2) Where on a motion for summary judgment the Court is satisfied that the only genuine issue is
(a) the amount to which the moving party is entitled, the Court may order a trial of that issue or grant summary judgment with a reference under rule 153 to determine the amount; or
(b) a question of law, the Court may determine the question and grant summary judgment accordingly.
Summary judgment
(3) Where on a motion for summary judgment the Court decides that there is a genuine issue with respect to a claim or defence, the Court may nevertheless grant summary judgment in favour of any party, either on an issue or generally, if the Court is able on the whole of the evidence to find the facts necessary to decide the questions of fact and law.
Where motion dismissed
(4) Where a motion for summary judgment is dismissed in whole or in part, the Court may order the action, or the issues in the action not disposed of by summary judgment, to proceed to trial in the usual way or order that the action be conducted as a specially managed proceeding.
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Absence de véritable question litigieuse
216. (1) Lorsque, par suite d'une requête en jugement sommaire, la Cour est convaincue qu'il n'existe pas de véritable question litigieuse quant à une déclaration ou à une défense, elle rend un jugement sommaire en conséquence.
Somme d'argent ou point de droit
(2) Lorsque, par suite d'une requête en jugement sommaire, la Cour est convaincue que la seule véritable question litigieuse est :
a) le montant auquel le requérant a droit, elle peut ordonner l'instruction de la question ou rendre un jugement sommaire assorti d'un renvoi pour détermination du montant conformément à la règle 153;
b) un point de droit, elle peut statuer sur celui-ci et rendre un jugement sommaire en conséquence.
Jugement de la Cour
(3) Lorsque, par suite d'une requête en jugement sommaire, la Cour conclut qu'il existe une véritable question litigieuse à l'égard d'une déclaration ou d'une défense, elle peut néanmoins rendre un jugement sommaire en faveur d'une partie, soit sur une question particulière, soit de façon générale, si elle parvient à partir de l'ensemble de la preuve à dégager les faits nécessaires pour trancher les questions de fait et de droit.
Rejet de la requête
(4) Lorsque la requête en jugement sommaire est rejetée en tout ou en partie, la Cour peut ordonner que l'action ou les questions litigieuses qui ne sont pas tranchées par le jugement sommaire soient instruites de la manière habituelle ou elle peut ordonner la tenue d'une instance à gestion spéciale.
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[8] In Granville Shipping Co. v. Pegasus Lines Ltd., [1996] 2 F.C. 853 at para. 8 (T.D.), I set out the general principles governing motions for summary judgment:
1. the purpose of the provisions is to allow the Court to summarily dispense with cases which ought not proceed to trial because there is no genuine issue to be tried (Old Fish Market Restaurants Ltd. v. 1000357 Ontario Inc. et al);
2. there is no determinative test (Feoso Oil Ltd. v. Sarla (The)) but Stone J.A. seems to have adopted the reasons of Henry J. in Pizza Pizza Ltd. v. Gillespie. It is not whether a party cannot possibly succeed at trial, it is whether the case is so doubtful that it does not deserve consideration by the trier of fact at a future trial;
3. each case should be interpreted in reference to its own contextual framework (Blyth and Feoso);
4. provincial practice rules (especially Rule 20 of the Ontario Rules of Civil Procedure, [R.R.O. 1990, Reg. 194]) can aid in interpretation (Feoso and Collie);
5. this Court may determine questions of fact and law on the motion for summary judgment if this can be done on the material before the Court (this is broader than Rule 20 of the Ontario Rules of Civil Procedure) (Patrick);
6. on the whole of the evidence, summary judgment cannot be granted if the necessary facts cannot be found or if it would be unjust to do so (Pallman and Sears);
7. in the case of a serious issue with respect to credibility, the case should go to trial because the parties should be cross-examined before the trial judge (Forde and Sears). The mere existence of apparent conflict in the evidence does not preclude summary judgment; the court should take a "hard look" at the merits and decide if there are issues of credibility to be resolved (Stokes). [notes omitted]
[9] The onus is on the Plaintiffs to establish that all the relevant issues can be properly decided on the evidence before the Court, and that there are no issues that can only fairly be resolved after a trial (Von Langsdorff (F.) Licensing Ltd. v. S.F. Concrete Technology Inc. (1999), 165 F.T.R. 74 at para. 9).
[10] Nevertheless, the Defendants cannot rely solely on their pleadings. They must show that there is a genuine issue for trial (Von Langsdorff (F.) Licensing Ltd., supra at para. 11).
[11] After a careful review of the material filed and consideration of the arguments put forward by the parties, I believe that there are genuine issues that cannot be decided by summary judgment, specifically, in relation to the issues of restitution and misfeasance in the public office.
[12] Based on the decision in Aucoin, supra, I am satisfied that the Defendants acted beyond their jurisdiction. The evidence clearly shows that the partnership agreement was conditional on the enactment of Bill C-62. This Bill died on the order paper when Parliament dissolved on April 27, 1997. Notwithstanding this, the parties to the agreement went ahead as planned.
[13] However, does the fact that the Defendants acted beyond their jurisdiction automatically entitle the Plaintiffs to restitution for the amounts paid into the Funds?
[14] In light of the conflicting evidence on key aspects of the dispute I am not satisfied that this is an issue that can be resolved by way of summary judgment.
[15] For instance, the Plaintiffs' affidavit evidence suggests that in order to ensure that each of the Plaintiffs paid into the Funds the Minister "held back" approximately 20 percent of the quota of crab traditionally allocated to the Plaintiffs. This quota was released once the Minister had confirmation that the individual Plaintiffs had paid into the Funds.
[16] On the contrary, the Defendants' affidavit evidence tends to demonstrate that the Plaintiffs benefited from the Partnership in that the additional quota allocated to the Plaintiffs in return for the payments towards the Funds, provided the Plaintiffs with additional revenues that offset the costs of the payments they made towards the Funds. Each of the fisherman were guaranteed an average gross revenue of $500,000 per year for five years for a total of $2.5 million. The Plaintiffs characterization of the quota transferred from the Partenariat to individual fishers as a "hold back" is incorrect because the quota to be allocated was within the discretion of the Minister and no fisher has the legal right to a specific quota in any given year.
[17] The Defendants also suggest that without the partnership, the Minister would have likely provided support to non traditional fishers by reallocating crab quota, therefore reducing the plaintiffs revenue.
[18] There is also conflicting evidence on the percentage of the quota allocated. The Plaintiffs' affidavit evidence mentions a 20 percent quota while the Defendants' evidence suggests it is 15 percent.
[19] Further, the Plaintiffs rely heavily on the decision of the Supreme Court of Canada in Air Canada v. Ontario Liquor Control Board, [1997] 2 S.C.R. 581 to justify their entitlement to the return of all amounts paid to the Funds. However, that decision can be distinguished from the present case in that the levy imposed was received by the Government for its own benefit to augment its revenues. In the case at bar, the Government received none of the amounts paid by the Plaintiffs. The payments were made to a third party organization pursuant to an arrangement devised possibly by the fishing industry (I say possibly because there is conflicting evidence on that point which should be clarified at trial).
[20] In addition, in Air Canada, supra, the issue before the Court was different than in the present case. The parties had conceded that there had been no error in ordering restitution of fees paid after January 1, 1984. The only issue was whether restitution should have been ordered on fees paid earlier, at a time when the Liquor Control Board was unaware of the inapplicability of the licencing law to the plaintiff. Iacobucci J. explained that "... monies paid under [an inapplicable] law may be recovered even if it appears that the governmental agent responsible for collecting them did not know that the law was inapplicable." [Emphasis mine]. In light of the differences discussed above between the Air Canada, supra case and the case at bar, I find that it is not evident that the Plaintiffs are automatically entitled to restitution.
[21] The general principle regarding restitution was stated by the Supreme Court in Air Canada v. British Columbia, [1989] 1 S.C.R. 161 at 1202-1203:
The law of restitution is not intended to provide windfalls to plaintiffs who have suffered no loss. Its function is to ensure that where a plaintiff has been deprived of wealth that is either in his possession or would have accrued to his benefit, it is restored to him. The measure of restitutionary recovery is the gain the province made at the airlines' expense. If the airlines have not shown that they bore the burden of the tax, then they have not made out their claim. What the province received is relevant only in so far as it was received at the airlines' expense.
[22] Although it is true that in the present case, the Plaintiffs bore the burden of the payments, these payments were not made to the Government, nor were they made for or on behalf of the Government. Also, it is not possible to determine whether the Plaintiffs have suffered a loss in this summary judgment proceeding, the reason being that it appears that they have received something in exchange for their contribution to the Funds. Only a full trial will yield the evidence necessary to make such a determination.
[23] The facts in the present case are closer to those in the Cheticamp Fisheries Co-operative Ltd. v. Canada, [1995] N.S.J. No. 127 (C.A.), case. In Cheticamp, fishers were required to make payments to a dockside monitoring company in order to get a "conditions of fishing" document that was necessary in addition to their licence for them to carry out fishing activities. Claiming that these fees were illegally imposed, the fishers sued in the Supreme Court of Nova Scotia for return of the money. The Trial judge found that the Department of Fisheries and Oceans did not have the statutory authority to require payment of dockside monitoring fees to a third party company before issuing conditions of licence. He stated that the Plaintiffs were entitled to damages only if the illegal actions of the Department of Fisheries and Oceans amounted to a tort by a Crown servant for which Her Majesty would be liable by virtue of sections 3 and 10 of the Crown Liability and Proceeding Act. He went on to conclude that the Crown had committed the tort of "interference of economic relations".
[24] The Nova Scotia Court of Appeal reversed this judgment, holding that no tort had been committed. Chipman J.A. explained at para. 42 that "[m]ere knowledge of D.F.O. officials that their actions were unlawful or recklessness as to whether or not they were unlawful is not, in itself, sufficient evidence of intention to do harm." A little further down, he continued:
It is beyond question that D.F.O. had the authority to stop fishing in the area at any time.
In the circumstances, the only inference is that the intention of D.F.O. in engaging in its unauthorized scheme was to provide a benefit to the respondents as a whole, not to injure them. I conclude that the second element of the tort has not been established.
Cheticamp, supra at paras. 57-58
[25] Chipman J.A. then concluded, at para. 61, that the payment of dockside monitoring fees was not sufficient proof of damages. He stated that "[t]he burden of proving damages rests with the respondents and it was for them to show, if they could, that they did not receive value equal to the monies paid by them." In the case at bar, the Plaintiffs have not presented such proof.
[26] Further, with regard to whether the Minister intentionally or recklessly acted beyond his statutory authority and thus committed the tort of misfeasance in public office, the Plaintiff must establish the following three elements:
(a) that the Minister was acting either:
(i) with malice; or
(ii) with a knowledge that he had no power to do what he was doing;
(b) that the Minister's actions were deliberately calculated to injure the Plaintiffs; and
(c) that damage resulted therefrom.
Radil Bros. Fishing Co. v. Canada (Department of Fisheries and Oceans) et al (2000), 197 F.T.R. 169 at para. 42, varied on other grounds [2002] 2 F.C. 219 (C.A.).
[27] In the case at bar, the Plaintiffs have not established elements (b) and (c) of the test.
[28] The evidence does not disclose an intention on the part of the Defendants to injure the Plaintiffs. On the material filed it appears that the motives of the Defendants were to help the fishery and not to harm the Plaintiffs.
[29] The third element of the tort, i.e.: that damage to the Plaintiffs resulted from the Minister's actions, has also not been established. The Plaintiffs have paid fees, but the evidence suggests that they have received some value for the money paid (i.e., they were allocated 100 percent of the snow crab resource, in lieu of seeing part of the resource go to non-traditional fishers).
[30] In conclusion, applying the principles relevant to summary judgment, this is not a case where the Defendants' defence is so doubtful that it does not deserve consideration by the trier of fact.
[31] However, on the issue of quantum, I am satisfied based on the evidence submitted by the Plaintiffs that they have paid $9,139,132.54. The uncontradicted evidence of Aurélien Haché and the particulars furnished in Exhibit I provide sufficient evidence to grant summary judgment on this issue.
ORDER
THIS COURT ORDERS THAT
The motion for summary judgment is denied except on the issue of quantum which is set at $9,139,132.54. Costs in the cause.
"Danièle Tremblay-Lamer"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2263-01
STYLE OF CAUSE: AURÉLIN HACHÉ AND OTHERS v. HER MAJESTY THE QUEEN AND OTHERS
PLACE OF HEARING: FREDERICTON
DATE OF HEARING: JUNE 17, 2002
REASONS FOR ORDER AND ORDER OF THE HONOURABLE MADAM JUSTICE TREMBLAY-LAMER
DATED: JUNE 24, 2002
APPEARANCES:
DAVID ROGERS
DANYS DELAQUIS
CATHY FAWCETT FOR PLAINTIFF
MICHAEL DONOVAN
GINETTE MAZEROLLE FOR DEFENDANT
SOLICITORS OF RECORD:
Gilbert, McGloan, Gillis
Saint John, New Brunswick FOR PLAINTIFF
Morris Rosenberg
Deputy Attorney General of Canada FOR DEFENDANT
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