Date:
20081209
Docket:
T-895-07
Citation:
2008 FC 1358
[ENGLISH TRANSLATION]
Ottawa
(Ontario), December 9, 2008
Present:
Shore J.
BETWEEN:
ASSOCIATION DES
CRABIERS ACADIENS INC.,
being a company duly incorporated
under the laws of New Brunswick,
JEAN-GILLES CHIASSON, in his
personal name and in his capacity as
president of the Association des
crabiers acadiens inc.,
ASSOCIATION DES CRABIERS
GASPÉSIENS INC., an incorporated association
registered under the laws of
Quebec, MARC COUTURE,
in his personal capacity and in
his capacity as
administrator of the Association
des crabiers gaspésiens inc., ASSOCIATION DES CRABIERS DE LA BAIE,
an unincorporated association
registered under the laws of Québec,
DANIEL DESBOIS, in his personal
name and in his capacity as administrator
of the l’Association des crabiers
de la Baie, and ROBERT F. HACHÉ
Applicants
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
I. Previously
[1]
[1] [...] On an appeal from a discretionary decision of the
Prothonotary, the Court must first ascertain whether the decision was
"clearly wrong" in the sense that his exercise of discretion was
based upon a wrong principle or upon a misapprehension of the facts, or that
the Prothonotary improperly exercised his discretion on a question vital to the
final issue of the case (see Canada v. Aqua-Gem Investments Ltd., 1993 CanLII 2939 (FCA), [1993] 2 F.C. 425 at
463). If the exercise of the Prothonotary's discretion is neither
clearly wrong nor concerns a question vital to the final issue of the case, the
Court will summarily dismiss the appeal without reconsidering it on its merits.
[6] [...]
[TRANSLATION]
It is not
whether evidence through a trial might be superior, but whether the affidavit
evidence heard on judicial review would be inadequate.
[17] What
seems to be lost sight of is that the learned Prothonotary was considering only
whether to convert the judicial review into an action. In exercising his
discretion not to do so in this case, he made findings respecting the
irrelevance of the economics of power generation and the other findings cited
by the respondents. However, any incidental findings made by him are not
binding on the judge hearing the judicial review and therefore do not
constitute determinations vital to the final issue of the judicial review.
(British Columbia
Hydro Power Authority v. Canada (Attorney General) (1997), 137 F.T.R. 259, [1997] F.C.J. no 1333 (QL), as specified by Justice
Marshall Rothstein).
II. Judicial proceedings
[2]
This
is an appeal filed by the applicants against a decision issued by prothonotary
Richard Morneau dated April 22, 2008 (Decision), dismissing the applicants’
motion to have the application for judicial review heard as if it were an
action pursuant to subsection 18.4(2) of the Federal Courts Act, L.R.,
1985, c F-7 and to have it combined with case T-1271-07 under Rule 105 of the Federal
Courts Rules, SOR/98-106).
III. Facts
[3]
On
May 24, 2007, the applicants filed an application for judicial review against
the Attorney General of Canada to contest the adoption by the Minister of
Fisheries and Oceans of a fisheries management plan for snow crab announced on
April 25, 2007 (Plan). This Plan was supported with a decision note entitled
"Memorandum to the Minister: 2007 Management Plan Snow Crab Areas 12, 18,
25, 26" signed by the Minister on April 20, 2007 (decision note). The
minister approved the Plan by basing himself on the reasons set out in the
decision note.
[4]
The
purpose of the application is to cancel and invalidate the Plan and all
decisions made concerning the implementation of elements of the Plan. The
applicants contested four elements of the Plan for which the Minister of
Fisheries and Oceans exceeded his jurisdiction by deviating from the principles
set out in the Fisheries Act, L.R., 1985, c F-14, the Fishery
regulations (general provisions), SOR/93-53 and the Atlantic Fishery
Regulations, 1985, SOR-86-21/, (Regulations) :
a) The
imposition of a specific fishing period for a particular sector of area 12
(which is a nautical mile wide and stretches along zone 19);
b) The
repartition of the Total Allowable Catch (TAC) among the various groups of
fishermen;
c) The
assignment--made by the Minister of Fisheries and Oceans--of a part of the TAC
to some groups of fishermen;
d) The
prohibition on using--in some areas and starting from 2008--crab pots with mesh
sizes that are over seventy-five (75) millimeters.
[5]
The
application was accompanied by a request for access to records under Rule 317
of the Federal Courts Rules. The applicants requested--through a motion
dated July 23, 2007--that the Court issue an order to have the respondents
fully disclose the documents similar to the one found in a cause of action. In
his decision dated July 27, 2007, (Assoc. des crabiers acadiens Inc.
v. Canada (Attorney General), 2007 FC 781, 68 Admin. L.R.
(4th) 217 (Crabiers acadien)), prothonotary Morneau dismissed the
motion because the documents sought were not before the Minister when the Plan
was adopted. The request for access to records was--in nature--a request for
information and documents that is found at the interlocutory stage of an action
rather than in an application for judicial review.
[6]
Following
this decision dated July 27, 2007, the parties filed their affidavits. Mr. Robert
Haché, on behalf of the applicants, filed an affidavit in which he provided
details concerning the historical facts of the connection between the parties
and the development of snow crab fishing. Mr. Rhéal Vienneau, Regional Manager,
Resources Management Division of the Fisheries and Aquaculture Management
Branch, Gulf region, filed an affidavit in response to Mr. Haché's.
[7]
Mr.
Vienneau was subjected to a long examination on affidavit on November 23, 2007.
During this examination, the respondent's attorneys were against—among other
things—producing additional documents.
[8]
On
December 13, 2007, the applicants filed a motion asking this Court to order
that the judicial review in question be heard as if it were an action pursuant
to paragraph 18.4(2) of the Federal Courts Act and joined to T-1271-07 under
Rule 105 of the Federal Courts Rules (discussed above).
IV. The decision that is the
subject of the application
[9]
By
dismissing the motion to convert and to join, prothonotary Morneau underpins
his decision by basing himself on three criteria in Macinnis c. Canada
(Attorney General), [1994] 2 F.C. 464, 166 N.R. 57 (C.A.):
a) The
true nature of the questions the Court must answer in the Application;
b) The
sufficiency of the assessment of the affidavit evidence;
c) The
necessity of assessing the attitude and the credibility of the witnesses.
[10]
By
applying the first criterion, prothonotary Morneau determined that the real
questions that the Court must answer with respect to the application have to do
with knowing whether the Minister, by implementing the Plan, acted in
compliance with the powers and obligations that were conferred on him by the Fisheries
Act as a result of the relevant considerations rather than those that are
subject to this Act. Prothonotary Morneau concluded that the history of the
connection between the parties and the development of snow crab fishing in
addition to the validity and the existence of the alleged agreements between
the parties are included among the relevant aspects in the context of the
subject matter of the Application.
[11]
As
for the sufficiency of the assessment of the affidavit evidence and the
credibility of the witnesses, prothonotary Morneau determined that Mr. Vienneau
sufficiently evinced his knowledge concerning the information on the delayed
fishery opening in area 12 and the mesh restrictions. The fact that during the
examination on affidavit, the respondent refused to produce the exchange of
correspondence that could have been relevant is, "A situation that could
have been settled in a timely fashion by a motion to decide an objection, and
not by an application for conversion" (Decision at para 25). The
prothonotary added that "The applicants could also have sought affidavits
to that effect from fishers in zone 19" (Decision at para 26).
[12]
By
dismissing the application for conversion, prothonotary Morneau did not decide
the issue of joining the current case to the action for damages. Furthermore,
he dismissed the application for consolidation, having accepted the
respondent's argument that the remedies requested in the two cases are
different.
[13]
The
action for damages is against the Attorney General of Canada and filed by the
former and current members of the applicant associations in this case in
addition to the members of a fourth association: les Crabiers du Nord-est inc.
(whose president, Mr. Robert F. Haché, is the applicant in this case). These
applicants claim that by adopting the Plan, the Minister set aside the
agreements that he has made since 1990 with traditional fishermen (elaborated
upon below). These applicants claimed damages due to a breach of contract, tort
of misfeasance in public office, expropriation without compensation, negligence
in the exercise of discretion, inaccurate statements, unjustified enrichment,
and breach of fiduciary duty. This action involves historical background of
Snow Crab fishery, including the Plan.
[14]
On
the other hand, the applicants in this case are submitting a claim for a
declaration of invalidity of the Minister's decisions regarding the Plan. The
questions of law are completely different in the two cases. The action for
damages will be settled with the assistance of the law of contract and torts;
however, this case will be settled under administrative law. Finally, the
current case had already reached a fairly advanced stage, that is to say the
hearing itself. However, the action for damages had only just begun. When the
decision was made, the action for damages was suspended pending a decision in a
similar case.
V. Relevant provisions
[15]
The
Federal Court must use a summary procedure to rule on the applications for
judicial review. However, there is an exception at paragraph 18.4(2) of the Federal
Courts Act, which grants the Federal Court the power to convert an
application for judicial review into an action:
|
18.4 (1) Subject to
subsection (2), an application or reference to the Federal Court under any of
sections 18.1 to 18.3 shall be heard and determined without delay and in a
summary way.
(2) The Federal Court may, if
it considers it appropriate, direct that an application for judicial review
be treated and proceeded with as an action.
|
18.4 (1) Sous réserve du
paragraphe (2), la Cour fédérale statue à bref délai et selon une procédure
sommaire sur les demandes et les renvois qui lui sont présentés dans le cadre
des articles 18.1 à 18.3.
(2) Elle
peut, si elle l'estime indiqué, ordonner qu'une demande de contrôle
judiciaire soit instruite comme s'il s'agissait d'une action.
|
[16]
According
to Rule 105 of the Federal Courts Rules, the Federal Court has the power
to join two cases:
|
105. The Court may
order, in respect of two or more proceedings,
(a) that they be
consolidated, heard together or heard one immediately after the other;
(b) that one proceeding
be stayed until another proceeding is determined; or
(c) that one of the
proceedings be asserted as a counterclaim or cross-appeal in another
proceeding.
|
105. La Cour peut ordonner, à l’égard de deux ou
plusieurs instances :
a)
qu’elles soient réunies, instruites conjointement ou instruites
successivement;
b)
qu’il soit sursit à une instance jusqu’à ce qu’une décision soit rendue à
l’égard d’une autre instance;
c)
que l’une d’elles fasse l’objet d’une demande reconventionnelle ou d’un appel
incident dans une autre instance.
|
VI. Matters in question
[17]
The
three questions raised are the following:
(1)
What is the standard of review that applies to the prothonotary's decision?
(2)
Should the application for judicial review proceed as an action pursuant to
paragraph 18.4(2) of the Federal Courts Act?
(3) If
this is the case, could this application for judicial review be joined to the
action for damages pursuant to Rule 105 of the Federal Courts Rules?
VII. Analysis
(1) What
is the standard of review that applies to the prothonotary's decision?
[18]
In Merck
& Co., Inc. v. Apotex Inc., 2003 FCA 488, [2004] 2 F.C.R. 459, the Federal Court of Appeal found that Federal Court
judges, on appeal of a prothonotary's decision, retain the right to exercise
their discretion de novo, but this power must be exercised only in
certain circumstances:
[19] […]
The judge on appeal
against the discretionary order of a prothonotary must not intervene except in
the two following cases:
a) the
order addresses issues that have a decisive influence on the outcome of the
main case,
b) the
order is tainted by an overriding error, in the sense that the prothonotary
exercised his discretion due to an incorrect principle or an incorrect
assessment of the facts.
[19]
With respect to the first step, in Merck v. Apotex, above, it was affirmed that the decisive test is strict:
[22] [...]
In
my respectful view it cannot reasonably be said that a standard of review which
subjects all impugned decisions of prothonotaries to hearings de novo regardless
of the issues involved in the decision or whether they decide the substantive
rights of the parties is consistent with the statutory objective Such a
standard conserves neither "judge power" nor "judge time".
In every case, it would oblige the motions judge to re-hear the matter.
Furthermore, it would reduce the office of a prothonotary to that of a
preliminary "rest stop" along the procedural route to a motions
judge. I do not think that Parliament could have intended this result.
[23] One
should not, therefore, come too hastily to the conclusion that a question,
however important it might be, is a vital one. Yet one should remain alert
that a vital question not be reviewed de novo merely because of a natural
propensity to defer to prothonotaries in procedural matters.
[20]
In
Canada v. Aqua-Gem Investments
Ltd., [1993] 2 F.C. 425, [1993] F.C.J.
no 130 (QL) (C.A.), Justice Mark MacGuigan concluded that emphasis must be placed on the subject of the
orders as opposed to their effects:
[98] [...] It seems to me that a
decision which can thus be either interlocutory or final depending on how it is
decided, even if interlocutory because of the result, must nevertheless be
considered vital to the final resolution of the case. Another way of putting
the matter would be to say that for the test as to relevance to the final issue
of the case, the issue to be decided should be looked to before the question is
answered by the prothonotary, whereas that as to whether it is interlocutory or
final (which is purely a pro forma matter) should be put after the
prothonotary's decision. Any other approach, it seems to me, would reduce the
more substantial question of "vital to the issue of the case" to the
merely procedural issue of interlocutory or final, and preserve all
interlocutory rulings from attack (except in relation to errors of law).
[21]
In the same judgment, Chief Judge Julius A. Isaac suggested in his
dissent that only orders on the merits that decide on the rights of the parties
meet
the requirement of a decisive influence. Thus, the issues that are "wholly
collateral to the issues in dispute between the parties in the litigation"
are not a part of the decisive influence on the main
conclusion. Furthermore, by examining Ontario case law, Chief Judge Isaac noted
that only decisions that prevent delivering a judgment on the merits of the
case would be considered to have raised an issue that has a decisive influence
(Aqua-Gem, above).
[22]
We
must ask ourselves if the proposed changes are decisive, whether they are authorized
or not. If they are decisive, the judge must exercise his discretion de novo.
[23]
If
we determine that the order in the case does not have a decisive influence on
the main conclusion, we must move on to the second step of the test established
in Merck v. Apotex, above, before this Court determines that it should
intervene in one of the prothonotary's decisions. With respect to the second
step, in Aqua-Gem,
MacGuigan J. explained what this step involves as follows:
[95] Where such
discretionary orders are clearly wrong in that the prothonotary has fallen into
error of law (a concept in which I include a discretion based upon a wrong
principle or upon a misapprehension of the facts), or where they raise
questions vital to the final issue of the case, a judge ought to exercise his
own discretion de novo.
(Aqua-Gem, above; also, Merck
v. Apotex, above at para 17).
[24]
Paragraph
18.4(2) of the Federal Courts Act is an exception to paragraph (1) and
must be analyzed while considering this paragraph. Thus, in Macinnis,
below, the Federal Court of Appeal noted that the "clearest of
circumstances" are required to hear an application for judicial review as
if it were an action:
[9] [...] One
should not lose sight of the clear intention of Parliament to have applications
for judicial review determined whenever possible with as much speed and as
little encumbrances and delays of the kind associated with trials as are
possible The "clearest of circumstances", to use the words of
Muldoon, J., where that subsection may be used, is where there is a need for
viva voce evidence, either to assess demeanour and credibility of witnesses or
to allow the court to have a full grasp of the whole of the evidence whenever
it feels the case cries out for the full panoply of a trial [...]
[25]
The
criteria that can be analyzed as part of a motion under paragraph 18.4(2) of
the Federal Courts Act are not limited to the those that are adopted in Macinnis.
In Drapeau v. Canada (Minister of National Defence) (1995), 179 N.R. 398, 54 A.C.W.S. (3d) 893 (F.C.A.),
at paragraph 1, Justice James Hugessen concluded that paragraph 18.4(2) of the Federal
Courts Act "places no limits on the considerations which may properly
be taken into account in deciding whether or not to allow a judicial review application
to be converted into an action."
[26]
It
is only when one of these two situations are present that the court can hear
the case de novo and substitute its discretion for the prothonotary's.
Otherwise, the Court must summarily dismiss the appeal without re-examining the
merits of the case (British
Columbia British Columbia Hydro, above, para 1).
(2) Should the application
for judicial review be heard as if it were an action pursuant to paragraph
18.4(2) of the Federal Courts Act?
Does the order
concern issues that have a decisive influence on the conclusion of the main
case?
[27]
The
question of knowing whether this case should be heard as if it were an action
is not a question that has a decisive influence on the conclusion of the main
case, namely the contestation of the Minister's decision, whether it was
authorized or not (McLeod
Lake Indian Band v. Chingee (1997), 144 F.T.R. 218, 76 A.C.W.S. (3d) 888 (F.C.) at para
10).
[28]
By
applying Merck v. Apotex,
above, if the application for judicial review were heard as if it were an
action, then the process would continue, but it would take another shape.
However, if the application for judicial review were not heard as if it were an
action—and thus were not joined—the process could continue nonetheless in an
eventual and separate procedure. As a result, a de novo review of the
prothonotary's decision is not justified in this respect considering that the
two procedures are considered to be distinct and separate.
Is the
order clearly wrong, meaning that the prothonotary exercised his discretion
based upon a wrong principle or upon a misapprehension of the facts?
[29]
The
applicants claim that prothonotary Morneau erred in law by choosing the
criteria established in Macinnis only, above. They claim that
prothonotary Morneau did not examine all the reasons that were submitted to
him, such as the undesirable multiplicity of the procedures, the desire to
avoid expenses and the useless delays, and the way the case was decided, which
reflected a lack of urgency.
[30]
However,
at paragraph 21 of the Decision, prothonotary Morneau specifically mentioned
that he did not ignore these other relevant criteria. He simply said that the
analysis of the three stated criteria is sufficient to justify dismissing the
motion. This does not imply that the prothonotary refused to consider the other
criteria. Even if case law sets out many criteria to be considered to determine
whether the application for judicial review must be heard as if it were an
action, the prothonotary was free to determine which criteria he would give
more weight to. Thus, considering the fact that prothonotary Morneau's decision
was not manifestly wrong, this Court does not have to rule on the additional
items raised by the applicants.
[31]
The
three criteria used by prothonotary Morneau are the following:
a) The
true nature of the questions the Court must answer in the Application;
b) The
sufficiency of the assessment of the affidavit evidence;
c) The
necessity of assessing the attitude and credibility of the witnesses.
a) The true nature of the questions the Court
must answer in the Application
[32]
Justice
Robert Décary explained that a judge "would err in accepting that a party
could only introduce the evidence it wants by way of a trial if that evidence
was not related to the narrow issues to be answered by the court" (Macinnis,
above, at para 10). During an application for judicial review, the Court must
determine whether the Minister committed a reversible error. In this case, the
Court will have to determine whether the Minister exceeded his jurisdiction by
basing his decision on grounds unrelated to fishery rules and regulations.
[33]
According
to his mandate, the Minister is obliged to manage, conserve and develop
fisheries on behalf of all Canadians (Comeau’s Sea Foods Ltd. v. Canada
(Minister of Fisheries and Oceans), [1997] 1 R.C.S. 12, 142 D.L.R. (4th) 193,
at para 36 to 37); thus, the only evidence that is relevant in this respect is
the documentation that the Minister had before him when he made his decision:
[6] [...] Relevance is
determined from the Notice of Application and affidavits filed if any. It is to
be remembered that the proceeding is an Application for Judicial Review of the
decision of a tribunal. What is relevant is what was before the decision maker
when he was reaching his decision. That is not quite the same as what was
considered or taken into account by him. In my view what is included is
everything that was put before him for the purposes of the decision-making
process. It does not include everything dealing with the subject which may have
crossed his desk at a prior time. It certainly does not include everything in
his department or area of responsibility.
(Ecology Action Centre Society
v. Canada (Attorney General), 2001 FCT 1164, 109 A.C.W.S. (3d) 388).
[34]
In
a similar judgment, British Columbia Hydro, above, the
applicant contested the validity of an order issued by the Minister of
Fisheries and Oceans enjoining the respondent to open the floodgates of the
Daisy Lake dam. The order is designated by the expression "order
concerning minimum flow rate." The respondent claimed that the Minister
could not issue the order in question because, when Daisy Lake dam was built,
the government of Canada had declared that no order concerning the minimum flow
rate would be made and that it was based on this declaration that it agreed to
build the dam.
[35]
In
British Columbia Hydro, the prothonotary considered the
respondents' arguments, according to which it was necessary to hear the
testimony concerning the declarations and the authority that was granted to
them. Rothstein J. confirmed that the prothonotary's conclusion at trial, which
dismissed the motion as a result:
[18] [...]
The
Prothonotary was of the opinion that viva voce evidence of representations made
over forty years ago and a wide-ranging investigation into the economics of the
Daisy Lake Dam were unnecessary and in exercising his discretion against
acceding to the respondents' position, his decision was not based on any wrong
principle, misapprehension of the facts, nor did it raise a question vital to
the final issue of the case.
[36]
In
this case, the applicants are claiming that the repartition of the TAC among
the various groups of fishermen added new participants to the snow crab fishery
in the Southern Gulf of St. Lawrence. Prothonotary Morneau considered the
applicants' arguments, according to which it was necessary to hear the
testimony concerning the alleged agreements between the parties dated 1990,
1997, and 2002, though which the Minister committed himself to permanently
limiting the number of snow crab fishery licenses to 130. The holders of these
130 licences were called traditional crabbers (traditional fishers). The
applicants are claiming that by issuing new licenses to fishing organizations
(new access fishers), the Minister reneged on the agreements reached with
traditional fishers.
[37]
Like
the prothonotary in British Columbia Hydro,
above, prothonotary Morneau also reasonably concluded that the alleged
agreements are not relevant to this Application because they are not a part of
the core Application itself (Decision at para 23).
[38]
However,
prothonotary Morneau already ruled on a motion requesting such information. In
a judgment on a motion to have documents related to this case forwarded,
prothonotary Morneau concluded that "with respect to the decision referred
to, namely the adoption of the Plan, I consider that the applicants can only
request the documents that were before the Minister when the Plan was
adopted" (Crabiers acadiens, above at para 11); thus, the
applicants cannot do what they were prevented from doing in the motion to have
documents forwarded.
[39]
By
dismissing the application of Jazz Air LP v. Toronto Port Authority,
2006 FC 705, 294 F.T.R. 278, reasons adopted, but remedy varied by Jazz Air LP v. Ports Toronto,
2006 FC 904, [2006] F.C.J. no
1155 (QL), on the basis of the necessity of having had bad faith
for a motion to convert to be granted, the prothonotary misinterpreted case
law. In Jazz Air, prothonotary Martha Milczynski granted the conversion
based on three items. Only two items concern bad faith: (1) The need to assess viva
voce the attitude and the credibility of the witnesses, and (2) the
undesirable multiplicity of the procedures in which there are many decisions
that were supposedly made in bad faith. She also concluded that it was a
complex trade dispute; and, as a result, it was necessary to obtain the history
of the exchanges between the parties by means of an action. Furthermore, prothonotary Milczynski
concluded that the application was difficult to manage, complex, and without
the procedural guarantees of an action. In her opinion, the matters in question
could not be established or assessed in a satisfactory way through considering
an item of affidavit evidence.
[40]
However, Jazz Air can be distinguished from this case by
means of its facts, considering that among all the other items specified above,
Jazz Air did not contest any decision or conduct, but rather alleged that the
governmental organization breached its duty to act fairly.
b) The sufficiency of the assessment of the
affidavit evidence
[41]
The
person subject to an examination plays a different role based on the context of the proceedings, namely either that of a
counter-examination on affidavit or an examination for discovery. Merck Frosst Canada Inc. v.
Canada (Minister of Health) (1997), 146 F.T.R. 249, 80
C.P.R. (3d) 550 established the distinctions between these proceedings:
[4] […]
a) the person examined is a witness as
opposed to a party;
b) the answers given are items of
evidence as opposed to admissions;
c) the
witness can legitimately answer that he or she ignores something; the witness
is under no obligation to make enquiries.
d) a
witness cannot be required to produce a document unless it is in his or her
custody or possession, and the same rules apply to all witnesses
e) rules concerning relevance are more
limited.
[42]
Whether
an item of evidence presented during a trail could be superior to affidavit
evidence during a judicial review is not a factor the Court must consider:
[10] [...] the
key test is whether the judge can see that affidavit evidence will be
inadequate, not that trial evidence might be superior.
(Macinnis, above).
The right to a counter-examination
is not sufficiently judicially thwarted due to the lack of personal knowledge
alleged by the affiant.
[43]
In
this case, the applicants are claiming that the decision note expressly
indicates that the decision to delay opening a part of area 12 was due to
pressure exerted by the fisherman of area 19, namely the neighbouring fishermen
of area 12; however, the Plan does not contain specific grounds justifying the
measure. The applicants are claiming that neither Mr. Vienneau's affidavit nor
his cross-examination reveal the reasons for which the application made by the
fishermen of area 19 was accepted.
[44]
Contrary
to the applicant's claim, the documents that were produced by the Minister
under Rule 318 of the Federal Courts Rules are sufficient to assess the
evidence. Tab 6 of the decision note, entitled "Additional Information:
Boundary Line Between Crab Fishing Area 12 and Crab Fishing Area 19,"
provides a detailed analysis explaining the issue regarding the delayed
opening. Tab 6 summarized the grounds for the pressure exerted by the fishermen
of area 19 in addition to their recommendations. Furthermore, the documents
that were requested in the cross-examination of Mr. Vienneau's affidavit had
been deemed to be irrelevant by prothonotary Morneau in Crabiers acadiens,
above. Prothonotary Morneau dismissed the applicant's motion because the
required documents were not before the Minister when the Plan was adopted.
[45]
Furthermore,
prothonotary Morneau reasonably concluded that the applicants could have
obtained the affidavits of the fishermen of area 19. No evidence in the file
proves that the applicants took unsuccessful steps toward obtaining these
affidavits nor that these fishermen have interests that oppose the applicants'.
[46]
It
is appropriate to note that the rules governing the admissibility of evidence
and the relevance of the facts are the same in either case regardless of
whether the evidence is presented in the shape of an affidavit or viva voce.
The issue of the sufficiency of the affidavit evidence in a motion to convert
is not intended to determine or rule on the relevance or admissibility of the
evidence that a party would like to present during the Application hearing.
These issues raise points that must be ruled on by distinct motions rather than
a conversion.
[47]
As
for assigning part of the TAC to new access fishing groups, the applicants are
claiming that it was intended to rationalize lobster fishing. As Mr. Vienneau
explains in his affidavit, the expression "streamlining" is one of
[translation] "the measures taken to decrease the number of fishermen
involved in a particular fishery" (Mr. Vienneau's affidavit, para 26).
Relying on Larocque v.
Canada (Minister of Fisheries and Oceans), 2006 FCA 237, 270 D.L.R. (4th) 552, which confirmed that it is illegal
for the Minister to use halieutic resources to finance government activities,
the applicants claim that the Minister apparently uses the snow crab resource
as a leverage to finance the streamlining of some other fisheries, namely
lobster and ground fish fisheries. The applicants maintain that such a
streamlining method represents an illegal appropriation of halieutic resources
by the Minister.
[48]
Following
Larocque, above, the Minister changed the rationale behind the grants
issued to new access fishermen. In his affidavit, Mr. Vienneau claims that such
grants are now based on the principle of fairness:
29. […] The intended
objective remains the same: a fair repartition of the resource intended to
grant [new access] fishermen the opportunity to generate additional income from
their fishing business that will thus provide them with greater financial
stability.
In addition, the Minister's
representative notes that "the Minister of Fisheries and Oceans did not
receive any funding or compensation what-so-ever" (Mr. Vienneau's
affidavit, at para 35).
[49]
However,
according to the applicants, the summary procedure, which is unique to judicial
reviews, deprives them of the ability to examine the representatives of the
groups of fishermen to check whether the policy described by Mr. Vienneau is
complied with and to confirm whether the explicit or implicit conditions
continue to be imposed by the Minister of Fisheries and Oceans to ensure the
streamlining of lobster and ground fish fisheries. In particular, the
applicants claim that a group, the Maritimes Fishermen’s Union (MFU), still has
a plan to streamline lobster fisheries. The applicants contest prothonotary
Morneau's conclusion regarding the possibility of obtaining affidavits from MFU
to prove that it has a lobster fishery streamlining plan, and by that means
obtain all the evidence necessary to pursue the application for judicial
review. According to the applicants, since MFU members benefit from snow crab
allowances, they have no interest in subscribing to affidavits that would
eventually attack the way the Minister proceeds. Thus, it is impossible to
claim that the applicants must obtain affidavits from individuals whose
interests diverge from theirs.
[50]
In
a stand that is similar to the one toward fisherman of area 19, prothonotary
Morneau also concluded that the applicants could have sought to obtain
affidavits from MFU fishermen. No evidence in the file proves that the
applicants took unsuccessful steps toward this objective and that the fishermen
have interests that oppose the applicants'. In the case of the MFU, Mr. Haché
proved that some MFU lobstermen who fish for snow crabs voluntarily give him
information (Mr. Haché's affidavit, at para 42). With respect to this question,
prothonotary Morneau's decision is not clearly wrong and his discretion is not
exercised under a wrong principle or a misapprehension of the facts.
[51]
As
for the prohibition—from 2008 onwards—in some areas on using crab pots with
mesh sizes superior to 75 millimetres, Mr. Vienneau stated during his
cross-examination that this limit was a proactive conservation measure and that
the traditional fleet had been consulted by the Minister about a scientific
study on this subject. Prothonotary Morneau found the clarifications provided
by Mr. Vienneau were sufficient during his examination. In the present context,
this conclusion is not erroneous.
c) The necessity of assessing
the attitude and credibility of the witnesses.
[52]
As
for the necessity of assessing the attitude and credibility of the witnesses
concerning the alleged agreement dated 1990, the relevance of this to the
present judicial review has already been dismissed, as explained above on the
subject of the true nature of the questions the Court must answer in the
Application. Furthermore, the applicants allege that they question the validity
of Mr. Vienneau's affirmations in both his affidavit and his cross-examination.
However, even if Mr. Vienneau did not participate in the negotiations
pertaining to the alleged agreement, he inquired into them. The applicants did
not successfully prove that Mr. Vienneau contradicted himself during his
cross-examination, nor that he contradicted himself with respect to his
affidavit or the documentation submitted as evidence. The applicants did not
prove that the transcript of the cross examination dated November 23, 2007, is
not sufficient for the Court to be able to assess the questions surrounding the
credibility of the witness.
[53]
The
applicants drew attention to Radil Bros. Fishing Co. v. Canada (Department of Fisheries and Oceans,
Pacific Region)
(1998), 78 A.C.W.S. (3d) 451, [1998] F.C.J. no 292
(QL), to suggest that the affidavit evidence is insufficient when a past
transaction is related to an application for judicial review. However, the
transaction in Radil Bros was a commercial transaction concerning
licenses. In this case, there is no transaction that requires an assessment of
the attitude and credibility of the witnesses.
(3) If this is the
case, could this application for judicial review be joined to the action for
damages pursuant to Rule 105 of the Federal Courts Rules?
Does the order
concern issues that have a decisive influence on the main conclusion?
[54]
The
question of whether the present remedy must be joined with another case does
not have a decisive influence (Vogo Inc. v. Acme Window Hardware Ltd.,
2004 FC 851, 256 F.T.R. 37
at para 75). By applying Merck
v. Apotex, above, if the application for judicial review
is heard as if it were an action and is then joined with another case, the
process would continue. The opposite is also true. Both can be done another
way, that is to say separately, one after the other. Thus, the aforementioned
orders do not concern the issues that have a decisive influence on the main
conclusion, so a de novo review of the prothonotary's decision is not justified
in this case.
Is the order tainted
by an overriding error, in the sense that the prothonotary exercised his
discretion due to an incorrect principle or an incorrect assessment of the
facts?
[55]
The
objectives of joining cases consist of preventing the multiplication of cases
and to promote a quick and relatively inexpensive settlement of these cases (Global Restaurant Operations of
Ireland Ltd. v. Boston Pizza Royalties Limited Partnership, 2005 FC 317,
38 C.P.R.
(4th) 551 at para 11; also, John E. Canning Ltd. v. Tripap Inc. (1999), 167 F.T.R.
93, 88 A.C.W.S. (3d) 543
(F.C.) at para 27). Relevant factors to consider in determining
whether joining cases is appropriate include the following factors: the same
parties are involved, judicial and factual questions are shared in common,
causes for actions and evidence are similar, and the probability that the
decision in a case will allow another case to be settled (Global Restaurant, above at
para 11; also, Canning, above at para 27). All that to
say that joining cases is justified only if there are substantial questions of
law and facts and requested remedies are shared in common (Canning, above at para 33).
[56]
Having
dismissed the applicants' motion in order for the present remedy to be heard as
if it were an action, prothonotary Morneau had not addressed the additional
application concerning joining the present remedy to the action for damages.
However, he remarked that he would have dismissed this application for reasons
put forward by the respondent in his written representations, that is to say
that the essential identity of the requested remedies, the essential identity
of the questions of law, and the requested remedies in both cases are
different.
[57]
As
for the essential identity of the requested remedies in the action for damages,
the applicants are seeking compensation due to breaches of contracts, tort of
misfeasance in public office, expropriation without compensation, negligence in
the exercise of discretion, inaccurate statements, unjustified enrichment, and
breach of fiduciary duty. However, the applicants in the case are seeking a
declaration of invalidity of the Minister's decisions concerning the Plan.
[58]
The
issues of law are completely different in both cases. The action for damages will
be decided with the assistance of issues related to the law of contracts and
torts, so this case will be decided with the assistance of issues related to
administrative law, namely the Minister's exercise of his discretion.
[59]
Finally,
this case has reached a fairly advanced stage because the affidavits were filed
and the cross-examinations on affidavits were completed. The parties need only
to file their documents for the process to proceed to a hearing. Furthermore,
the action for damages is in its early stages. When the Decision was made, the
action for damages was suspended while waiting for a decision to be made
concerning a similar case.
[60]
Since
the Court is not involved in a de novo analysis, prothonotary Morneau's
reasons for not granting the joining of the cases are reasonable.
VIII. Conclusion
[61]
The
Court concludes that prothonotary Morneau's order does not concern the issues
that have a decisive influence on the main conclusion and that the order is
reasonable given the context of the case.
JUDGMENT
THE COURTS
ORDERS that the appeal be
dismissed.
"Michel
M.J. Shore"
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