Date: 20070306
Docket: T-742-06
Citation: 2007 FC 251
Ottawa,
Ontario, the 6th day of March 2007
Present: the Honourable Mr. Justice
Blanchard
BETWEEN:
AURÉLIEN
MAINVILLE and
CLAUDE
PAULIN
Applicants
and
THE
ATTORNEY GENERAL
OF
CANADA
Respondent
REASONS FOR ORDER AND ORDER
1. Introduction
[1]
This is an application for judicial review of a
decision by the Minister of Fisheries and Oceans (the Minister) on
March 30, 2006, regarding distribution of the total allowable catch (TAC)
of snow crab in the southern Gulf of St. Lawrence, that is, in fishing
areas 12, 18, 25 and 26 ("the fishing plan").
2. Factual
background
[3]
The Minister announced the snow crab fishing
plan for the areas in question on March 30, 2006. This plan is the
decision by the Minister which is the subject of the judicial review at bar.
[4]
The fishing plan awards 7.129% of the TAC, or
1,772.91 t., to the New Brunswick non-traditional fleet: 10% of this quota
was awarded to the Acadian Groundfish Fishermen's Association (APPFA), and 90%
to the Maritime Fishermen's Union (MFU), which has some 1,200 members.
[5]
The effect of this decision was to exclude the
applicants from the distribution set out in the snow crab management plan,
since they do not belong either to the APPFA or the MFU. The applicants
apparently sent a letter to the Minister giving him the necessary information
so that he could take their particular situation into account in 2006 in the
fishing plan.
[6]
The applicants maintained that they were unable
to determine why they were excluded from the distribution. However, they
pointed out that they are the only ones, with two of their fellow fishers from
New Brunswick among the hundred or so active fishers, who receive no benefit
from this fishing. They added that their situation differs from that of their
New Brunswick colleagues in that the latter are members of the MFU, which
received a large quota. The applicants compared themselves to fishers who were
members of the APPFA.
3.
Issues
[7]
This application for judicial review raises the
following questions:
A.
Did the Minister act in accordance with his
obligations in assigning snow crab quotas in 2006?
B.
Did the Minister have a fiduciary obligation to
the applicants, and if so did he fail to carry out that obligation to the
applicants?
4.
Standard of review
[8]
First, it must be determined what the applicable
standards of review are in the case at bar. The standard of review applicable
to a decision by the Minister made pursuant to section 7 of the Act is that of
the patently unreasonable decision, as the Federal Court of Appeal ruled in Tucker
v. Canada (Minister of Fisheries and Oceans), 2001 FCA 384. This conclusion
was recently restated by the Court of Appeal in Recherches Marines Inc.
/Marine Research Inc. v. Attorney General of Canada,
2006 FCA 425.
[9]
So far as questions regarding procedural
fairness or the principles of natural justice are concerned, it is not
necessary to discuss the applicable standard of review: if those principles
have been violated, the decision will be set aside and returned to the Minister
for reconsideration.
5.
Historical background
[10]
In light of the
issues raised in the case at bar, I feel it is necessary to review the
historical background to the Minister's decision.
[11]
In 1990, there
were more than 100 licences for groundfishing with mobile gear, including
the licences held by the applicants. At the time, the holders of this kind of
licence were eligible to become holders of individual transferable quotas
(ITQs). The ITQs were determined on the basis of historical catches
(1986–1989).
[12]
The fishers who
opted for the ITQ plan lost their status as inshore fishers and were subject to
different rules. For example, they could only obtain licences by an application
to reassign a licence; access to coastal licences (smelt, oysters and so on)
was no longer possible; and they lost access to cod fishing in the
Northumberland Strait. Each ITQ fisher had a fixed share, expressed as a
percentage of the groundfish quotas. The fisher decided on the rate of his or
her activities during the fishing season.
[13]
In New Brunswick, there are still
87 holders of competitive mobile gear groundfish licences. The applicants
chose to remain in this group of fishers. In making this choice, they agreed to
continue fishing competitively for the groundfish quotas ("race for the
fish"). They also retained the option of fishing in the Northumberland Strait.
Apart from the applicants, all the fishers are represented by the MFU. There
were also thirteen ITQ licence holders, most of whom are represented by
the APPFA.
[14]
Following the
announcement of the cod fishing moratorium (1993–1997, inclusive) and the
initiation of various financial assistance programs, the Minister identified
fishers with a heavy dependence on groundfishing. Over the years, this list of
fishers has been amended to take into account changes in the fishers' situation
and the eligibility criteria. In New Brunswick, there are nineteen fishers on
this list: the applicants; four fishers holding competitive mobile gear
groundfish licences who are part of the MFU core group; and thirteen fishers
represented by the APPFA who are generally holders of ITQ licences.
[15]
In 2003, the
Minister decided to stabilize long-term snow crab allocations in area 12. Inter
alia, he granted 90% of the share of new access reserved for New Brunswick
to core inshore fishers through MFU, which includes fishers dependent on
competitive groundfishing, and 10% was for fishers dependent on groundfishing
who operated vessels less than 65 feet long and who were subject to the ITQs
represented by APPFA.
[16]
In 2005, the
Minister approved the "Inshore Transition and Development Plan"
submitted by the MFU. The purpose of this transition plan was primarily to
rationalize the inshore lobster fishing fleet (licence retirement), but also
included the fishers dependent on groundfishing.
[17]
Under the
transition plan, the applicants and four other New Brunswick fishers dependent
on competitive fishing no longer automatically had access to a snow crab
allocation, but in return they received a substantial increase in their cod
allocations over 2004. This approach appeared to satisfy the group of six fishers
when their cod allocations were confirmed in 2005. However, after the fishing
season, certain fishers maintained that the cod was more difficult to catch and
that there was little or no market for the cod.
[18]
In 2006, the
Minister repeated his approval of the "Inshore Transition and Development
Plan" submitted by the MFU.
[19]
The Minister took
part in meetings with the fishers dependent on groundfishing with competitive
quotas several times in 2005 and the winter of 2006 to discuss their situation.
At those meetings the fishers told the Minister that they wanted a [translation] "permanent" snow
crab allocation in areas 12 and 12E and larger cod allocations. The Minister's
representatives confirmed that they were prepared to work with them to give
them greater stability and greater predictability of access.
[20]
In February 2006,
these competitive fishers submitted their own rationalization plan to the
Minister. The Minister did not approve this plan, because the quantities sought
were substantial and because there was no guarantee that there would in fact be
a rationalization. Further, the proposal was contrary to the transition plan
announced by the Minister in 2005 and restated on March 23, 2006.
[21]
The snow crab
fishing plan announced on March 30, 2006, continues to give a snow crab
allocation in area 12 to the MFU in accordance with its [translation] "transition and rationalization
plan". The 90/10 distribution of the quota between the MFU and the APPFA
was also maintained.
[22]
This plan also
includes the creation of a trust fund to rationalize the groundfishing
competitive fishers fleet (four fishers with mobile gear, including the
two applicants, and two fishers with fixed gear). This group of six
groundfishers, including the two applicants, received a total allocation of
46.25 metric tons (metr. t.) of snow crabs in area 12E for 2006, pursuant
to the fishery plan announced for that area on April 11, 2006.
Additionally, the four fishers dependent on competitive mobile gear
groundfishing, including the two applicants, had access in 2006 to over 128
metr. t. of cod, the same amount as 2005.
[23]
Of the group of fishers on the list of fishers
with a heavy dependence on groundfishing, seven were holders of ITQ licences,
represented by the APPFA; and four fishers who were part of the MFU core group
and who held competitive mobile gear groundfish licences received snow crab
allocations in area 12.
6. Analysis
A.
Did the Minister act in accordance with his
obligations in assigning snow crab quotas in 2006?
[24]
The Minister's discretion to grant fishing
licences is set out in subsection 7(1) of the Fisheries Act, R.S. 1985,
c. F-14:
|
7. (1) Subject to subsection (2),
the Minister may, in his absolute discretion, wherever the exclusive right of
fishing does not already exist by law, issue or authorize to be issued leases
and licences for fisheries or fishing, wherever situated or carried on.
|
7. (1) En l'absence d'exclusivité du
droit de pêche conférée par la loi, le ministre peut, à discrétion, octroyer
des baux et permis de pêche ainsi que des licences d'exploitation de
pêcheries — ou en permettre l'octroi —, indépendamment du lieu de
l'exploitation ou de l'activité de pêche.
|
[25]
This discretion is restricted only by the
principles of natural justice, as the Supreme Court stated in paragraph 36
of Comeau's Sea Foods Ltd. v. Canada (Minister of Fisheries and Oceans),
[1997] 1 S.C.R. 12:
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. [Emphasis added.]
[26]
Accordingly, the
discretion to authorize the issuance of licences conferred on the Minister by
s. 7 of the Act is restricted only by the requirement of natural justice, which
means that the Minister must base his decision on relevant considerations,
avoid arbitrariness and act in good faith.
[27]
In their argument, the applicants referred to 2747-3174
Québec Inc. v. Québec (Régie des permis d'alcool), [1996] 3 S.C.R. 919, to
establish the Minister's duty to act fairly in exercising his power to
authorize the issuance of fishing licences. In that judgment, the Supreme Court
held that the Quebec Régie des permis d'alcool was not observing the guarantees
of impartiality at the institutional level. In the course of its analysis, it
noted that the nemo debet esse judex in propria sua causa rule (the nemo
judex rule), which has to do with the right to a public and impartial
hearing, applied to the Régie as part of the duty to act fairly.
[28]
In my view, that case has little application in
the case at bar, since the applicants did not raise any questions about the
Minister's independence and impartiality. Despite this conclusion, I agree with
the applicants that the Minister was required to act fairly or in keeping with
the principles of natural justice, as set out in Comeau. For the sake of
consistency, I will use, as the Supreme Court did in Comeau, the phrase
[translation] "principles of natural justice" rather than [translation] "duty to act fairly" in these reasons. This choice of
terminology does not have any negative impact on the applicants, since in Martineau
v. Matsqui Institution, [1980] 1 S.C.R. 602, at paragraph 47, the Supreme
Court held that "It is wrong . . . to regard natural justice and fairness
as distinct and separate standards" and noted that "Fairness involves
compliance with only some of the principles of natural justice".
[29]
Accordingly, in this Court, the applicants
essentially maintained that, in exercising his discretion in a non-arbitrary
way and in good faith, the Minister should treat them in the same way as other
fishers dependent on groundfish, since there is no reason for their being given
different treatment. Additionally, it appeared from the record as a whole and
from various issues raised by the applicants that they also objected to the
Minister's not giving them specific allocations of snow crab in the areas in
question. This claim, which I would describe as implicit, was based on the
Minister's knowledge of the problems between the applicants and the MFU; on the
fact that the Minister was apparently informed on February 3, 2006, that the
applicants were no longer represented by the MFU; and on the fact that the MFU
was supposed to give the applicants an area 12 crab allowance.
[30]
For his part, the respondent maintained that
nothing in the evidence shows that the Minister acted arbitrarily. He further
noted that although the applicants claimed that they should have been given the
same treatment as the APPFA fishers, the evidence shows that their situation
was not identical, since they had chosen to remain in the group of competitive
fishers. The respondent claimed that there was no evidence that the Minister
acted in bad faith. On the contrary, he maintained that the Minister
substantially increased the applicants' cod allocation and gave them a crab
quota in area 12E.
[31]
The issue that arises in the case at bar is
whether the Minister complied with the principles of natural justice in
exercising his discretion to authorize the issuance of licences.
[32]
The Minister's duty to act in accordance with
the principles of natural justice implies no duty to treat all fishers in the
same way. Earlier decisions by the Federal Court of Appeal have recognized the
inequitable aspect of decisions by the Minister of Fisheries on this type of
question. In particular, in Carpenter Fishing Corp. v. Canada (C.A.),
[1998] 2 F.C. 548, at paragraph 39 of his reasons, Robert Décary J.A.
wrote:
Quotas
invariably and inescapably carry with them some element of arbitrariness and
unfairness. Some fishermen may win, others may lose, some may win or lose more
than others, most if not all will find themselves with less catches than
before. It is at best in that sense, and not in the legal sense, that one can
speak, in cases such as the present one, in terms of discrimination. If this
were found to be discrimination, then it would be discrimination authorized by
statute.
Accordingly, the
fact that two groundfishers received a different allocation is acceptable
provided that the difference in treatment is based on relevant considerations,
is not arbitrary and was made in good faith.
[33]
In my view, the evidence before the Court does
not show that the Minister's decision was based on irrelevant considerations,
was arbitrary or was made in bad faith. Instead, the evidence shows that the
applicants' situation differs from that of the other ITQ holding fishers to
which they compared themselves. In fact, they chose to remain in the group of
competitive fishers and, consequently, enjoyed certain benefits applicable to
that group, including access to a significant cod allocation and a snow crab
quota in area 12E.
[34]
In view of their decision to remain in the
competitive fisher group, the applicants cannot complain that they were the
subject of unfair treatment. The ITQ fishers with whom the applicants compared
themselves are necessarily treated differently under the plan which they chose,
a plan that is quite different from that chosen by the applicants. Accordingly,
this difference in treatment is not arbitrary.
[35]
Even considering that the Minister was aware of
the problems between the applicants and the MFU before the fishing plan was
announced, the applicants did not persuade the Court that he had a duty to make
a specific snow crab allocation for them. To the extent that the preparation of
a fishing plan extends over a long period; that the principle on which the
allocations are made depends on the fisher associations; and that, when the
fishing plan was announced the applicants were still officially part of the
MFU, this Court cannot conclude that the Minister failed to fulfill his duties.
Although the Minister was aware of the dispute between the MFU and the
applicants when the fishing plan was announced, he had no duty to ensure that
part of the quota allocated to the MFU would in fact be assigned to the
applicants.
[36]
For these reasons, I therefore conclude that the
Minister acted in accordance with his obligations in assigning the snow crab
quotas in 2006 pursuant to the fishing plan.
B. Did the Minister have a fiduciary obligation to the
applicant, and, if so, did he fail to fulfill that obligation to the
applicants?
[37]
The applicants argued that there was a fiduciary
relationship between themselves and the Minister. They relied on Lac
Minerals Ltd. v. International Corona Resources Ltd., [1989] 2 S.C.R.
574. At paragraph 32 of that judgment, the Supreme Court identified the
three features of a fiduciary obligation as follows:
1.
the fiduciary has
scope for the exercise of some discretion or power;
2.
the fiduciary can
unilaterally exercise that power or discretion so as to affect the
beneficiary's legal or practical interests; and
3.
the beneficiary is
peculiarly vulnerable to or at the mercy of the fiduciary holding the
discretion or power.
[38]
To begin with, the applicants maintained that it
was well settled that the Minister exercises some discretion in granting
fishing licences. They claimed that he could therefore, as in the case at bar,
decide not to grant licences to the applicants and other fishers. Then, they
argued that the exercise of the discretion has a direct legal effect on them
and also an effect on their practical interests, in that they do not have the
right to fish for crabs. Finally, the applicants claimed that it is clear that
they are at the Minister's mercy regarding the right to fish for crabs or any
other species. In support of this idea, they claimed that they were identified
by the Minister as belonging to the group of fishers most dependent on
groundfishing.
[39]
The respondent cited the following statements by
the Supreme Court:
It should be
noted that fiduciary duties generally arise only with regard to obligations
originating in a private law context. Public law duties, the performance of
which requires the exercise of discretion, do not typically give rise to a
fiduciary relationship. Guérin v. Canada, [1984] 2 S.C.R. 335, at
paragraph 105.
[40]
In that judgment Dickson J. held that the
Crown's fiduciary duty to the Musqueam Indian Band was in the nature of private
law, not a public law obligation. The respondent claimed that the management of
fisheries on behalf of all Canadians is not in any way comparable to the
situation described in Guérin and cannot give rise to a similar
fiduciary duty.
[41]
Eleanor Dawson J. summarized the principles
emerging from decisions on fiduciary obligations in Harris v. Canada,
[2002] 2 F.C. 484, at paragraph 178, which reads as follows:
1. The Crown may in some circumstances owe a fiduciary duty,
or a duty akin to a fiduciary duty.
2. In any particular case, the surrounding circumstances
must be closely examined in order to determine whether the duty imposed on, or
undertaken by, the Crown is in the nature of a private law duty. For example,
is the Crown exercising a discretion on behalf of the beneficiary of the
alleged fiduciary duty? Thus in Guérin, the mere fact that Indian Bands
had an interest in lands did not by itself give rise to a fiduciary relationship
with the Crown. The existence of that relationship depended upon the further
fact that the Indian interest in land was inalienable expect upon surrender to
the Crown, with the Crown there acting on the Band's behalf. The source of that
obligation was not a creation of either the legislative or executive branches
of government and so was not a public law duty. The equitable obligation
entailed in the surrender requirement was the source of the fiduciary
obligation owed to Indians. It was therefore in the nature of a private law
duty.
3. Where the Crown owes duties to a number of interests it
is more likely that the Crown is not in a fiduciary relationship, but rather is
exercising a public authority governed by the proper construction of the
relevant statute.
4. A fiduciary relationship is unlikely to exist where that
would place the Crown in a conflict between its responsibility to act in the
public interest and the fiduciary duty of loyalty to its beneficiary.
[42]
When he is managing fisheries, the Minister has
duties to a number of interests, since he does so on behalf of all Canadians
and in the public interest. Moreover, this principle was in fact stated by the
Supreme Court in Comeau. The Court stated the following in that case:
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).
[43]
In light of this principle and those mentioned
by Dawson J., I am of the opinion that it is extremely unlikely that a fiduciary
relationship exists between the Minister and the applicants. Additionally, if I
were to accept the applicants' argument that the Minister owes them a fiduciary
duty, the Crown would be placed in a situation of conflict between its
responsibility to act in the public interest and the duty of loyalty which a
fiduciary has to a beneficiary.
[44]
All things considered, I am of the opinion that,
in the case at bar, no fiduciary relationship exists between the Minister and
the applicants.
6. Conclusion
[45]
The Minister must base his decisions on relevant
considerations, avoid arbitrariness and act in good faith. I am satisfied that
there is no evidence the Minister based his decision on irrelevant
considerations or acted arbitrarily or in bad faith.
[46]
The Minister has no duty to treat all fishers
dependent on groundfish in the same way. Accordingly, in my view, the Minister
observed the principles of natural justice.
[47]
Moreover, the Minister has no fiduciary duty to
the applicants. The Crown is instead exercising a public authority, which is
governed by the interpretation that should be given to the applicable
legislation.
[48]
In view of my findings on the issues, I am of
the opinion that there is no basis for reviewing the Minister's decision.
ORDER
THE COURT ORDERS that:
1. The application for judicial review of a
decision by the Minister of Fisheries and Oceans on March 30, 2006, is
dismissed;
2. Costs are awarded to the respondents.
"Edmond P. Blanchard"
Certified true
translation
Mavis Cavanaugh
Email this Content