Docket: T-709-14
Citation:
2015 FC 734
Ottawa, Ontario, June 11, 2015
PRESENT: The
Honourable Mr. Justice O'Keefe
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BETWEEN:
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HENRY DOUCETTE
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Applicant
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and
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HER MAJESTY THE
QUEEN IN RIGHT
OF CANADA AS
REPRESENTED BY THE MINISTER OF FISHERIES AND OCEANS
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
The applicant’s application for judicial review
reads as follows:
This is an application for
Judicial Review pursuant to section 18.1 of the Federal Courts Act, R.S.
1985, c. F-7 (hereinafter referred to as the “Federal Courts Act”), in
respect of a decision of the Minister of Fisheries and Oceans (Canada)
(hereinafter referred to as “DFO”), made on or about December 9th,
2013, directed towards the interests of the Applicant, (hereinafter referred to
as “the Applicant”) in his capacity as a commercial fisherman within the DFO
administrative Gulf Region. The Minister rejected the recommendation of the
Atlantic Fisheries Licensing Appeal Board (hereinafter referred to as “AFLAB”)
that Snow Crab Licence Number 008529 (hereinafter referred to as the “Licence”)
be reissued to the Applicant. The Minister denied the appeal of the Applicant
and refused to reissue the Licence to the Applicant.
Prior to the decision of the
Minister on or about December 9th, 2013, the Applicant had been
engaged with both DFO and the Minister in an attempt to have the Licence
reissued to him, pursuant to terms and conditions of a transaction that was
completed in 1999 with the former holder of the Licence. DFO consistently
refused to reissue the Licence to the Applicant. After several years of delays
and protracted procedures undertaken by DFO, legal proceedings and requests
that the Minister review his/her case (depending on which DFO Minister was
serving at all relevant times hereto), the Applicant was granted permission to
appeal the decision of DFO to AFLAB, pursuant to which decision DFO
specifically refused to reissue the Licence to the Applicant. The appeal
hearing occurred on April 15th, 2011. AFLAB rendered a decision which
clearly and unequivocally recommended that the Licence be reissued to the
Applicant (hereinafter referred to as the “AFLAB Decision”). DFO delayed
sharing such AFLAB Decision to the Applicant, undertook various delay tactics
and/or protracted procedures in an attempt to further mislead the Applicant,
and ultimately DFO and the Minister ignored the recommendation of AFLAB and
denied the appeal of the Applicant to have the Licence reissued to him, without
any legal, factual and/or bona fide basis, and as such, demonstrated a
total lack of good faith within DFO and within the Minister’s treatment of the
Applicant.
[2]
The applicant requests the following relief:
1.
A declaration that the decision of the Minister
not to reissue snow crab licence to the applicant was invalid or unlawful
pursuant to paragraphs 18(1)(a), 18(1)(b), 18.1(3)(a), 18.1(3)(b) and
18.1(4)(b) of the Federal Courts Act, RS 1985, c F-7 [the Act] ; and/or
2.
A writ of mandamus directing the Minister
to comply with her representation and undertakings, pursuant to paragraphs
18(1)(a), 18(1)(b) and 18.1(3)(a) of the Act; and/or
3.
A writ of mandamus directing the Minister
to comply with the recommendations of AFLAB, pursuant to paragraphs 18(1)(a),
18(1)(b), 18.1(3)(a) and 18.1(3)(b) of the Act; and/or
4.
In the alternative, that if this Court does not
deem the licence can be reissued to the applicant, an order declaring the
applicant is entitled to damages in lieu of his detrimental reliance on the
Minister and in regard to the unfair treatment by the Minister and DFO in
regard to all matters relating to the transfer of the licence; and an order
granting damages, pursuant to paragraphs 18(1)(a), 18.1(3)(a) and 18.1(3)(b) of
the Act; and/or
5.
In the further alternative, if this Court gives
credence to the Minister’s position in the March 2, 2012 correspondence whereby
he purports that AFLAB had failed to consider certain decisions by the New
Brunswick courts, that this Court directs that this specific issue raised by
the Minister be referred back to AFLAB for further consideration in order to
allow the applicant to properly respond to the same, in keeping with the
principles and requirements of natural justice, pursuant to paragraphs 18(1)(a),
18(1)(b), 18.1(3)(a) and 18.1(3)(b) and subsection 18.4(b) of the Act; and
6.
Costs of this application on a full indemnity
basis pursuant to Rules 400(1), (2), (3) and (6) of the Federal Courts Rules,
SOR/98-106; and
7.
Such other relief or remedy as this Court deems
just and reasonable.
I.
Background
[3]
The applicant is a commercial fisherman. In
1998, he sold his Prince Edward Island (PEI) fishing licence. He wanted to move
to New Brunswick and fish there.
[4]
The applicant contacted the DFO in Moncton, New
Brunswick. He alleges that he was informed that he needed to reside in New
Brunswick for two years and fish for six months in order to qualify to have the
licence reissued to him.
[5]
The respondent, on the other hand, alleges the
applicant contacted the DFO offices in Tracadie and Moncton, New Brunswick, as
well as Charlottetown, PEI on at least five occasions. It alleges Mr. Jenkins,
the Chief of Resource Management in charge of licencing in Charlottetown before
his retirement, testified on cross-examination that he would have explained the
DFO policies to the applicant: first, the applicant needs to “qualify as a new entrant into the core group by being
registered as a commercial fish harvester in each of the previous two years,
fishing a minimum of 10 weeks in each of those years, and being recognized as a
commercial fisher in his community” and “[t]hen
to qualify to receive a replacement licence, he would need six months'
residency in eastern New Brunswick.”
[6]
In January 1999, the applicant moved to Moncton
in order to meet the allegedly misinformed two years residency requirement. He
and his corporation, 508428 N.B. Limited, entered into a contract to purchase
the fishing licence and the business assets of Vincent Jones for $1,500,000.
Mr. Jones was to hold the licence in trust for the applicant until he met the
requirements to qualify to have the licence reissued to him (the trust agreement).
The applicant then began fishing in the same year.
[7]
The trust agreement provided that Mr. Jones had
no obligation to initiate a reissuance of the licence until the purchase price
was paid in full. By spring of 2002, the applicant still had not paid the entire
purchase price to Mr. Jones.
[8]
In February 2001, the province of New Brunswick
contacted DFO with its concerns that some of the snow crab licences were sold
and not personally utilized. DFO commenced reviews, including Mr. Jones’ licence.
[9]
On April 4, 2001, DFO froze the licence and
prevented transfers, though DFO did continue to issue Mr. Jones the licence
from year to year.
[10]
On January 16, 2002, Mr. Jones withdrew his
expression of intent to request a reissuance of the licence to the applicant.
[11]
On February 6, 2002, DFO received an application
from the applicant to be recognized as a new entrant.
[12]
On March 27, 2002, DFO approved the applicant’s
request, valid for the calendar year. Later, the applicant also obtained new entrant
status for 2003 and 2004.
[13]
On April 9, 2002, DFO revoked Mr. Jones’ core
status and found that he was not head of the core enterprise. DFO also informed
Mr. Jones that it would not entertain any request to issue replacement licences
to other eligible fishers.
[14]
Mr. Jones was also informed by DFO that he
needed to end his trust agreement with the applicant if he wanted an
unrestricted licence. He did so and took control of the licence without
returning the purchase price to the applicant.
[15]
On May 14, 2002, the applicant requested that
DFO lift the restrictions on Mr. Jones’ licence and transfer the licence from
Mr. Jones to him pursuant to the trust agreement.
[16]
On June 26, 2002, Fisheries and Oceans Minister Robert
G. Thibault denied this request.
[17]
The applicant commenced an action against Mr.
Jones for breach of the trust agreement and the trial occurred during the weeks
of December 13, 2004 and March 14, 2005.
[18]
On December 2, 2004, Mr. Jones formally applied
to the DFO to transfer the licence to the applicant. The applicant claims that
he did not sign this application and that he was completely unaware of its
existence during the trial between he and Mr. Jones.
[19]
On December 3, 2004, DFO rejected this
application.
[20]
On April 11, 2005, Mr. Justice Roger Savoie in Doucette
v Jones, 2005 NBQB 144, deemed the trust agreement between the applicant
and Mr. Jones legal, but acknowledged that the DFO was not bound by trust
agreements between individuals. Mr. Justice Savoie ruled the contract was
frustrated and dismissed the applicant’s request for specific performance; this
was upheld on appeal. The remaining issue of damages was sent back for retrial
and the parties subsequently reached an out of court settlement on August 6,
2012.
[21]
As of July 6, 2007, Mr. Jones was found in
compliance with DFO policies.
[22]
In December 2008, the applicant met with the
Honourable Minister Gail Shea and complained that DFO had not applied its
policies consistently. DFO reviewed Mr. Jones’ file. On April 16, 2009, it
informed the applicant that no inconsistencies had been identified.
[23]
On April 24, 2009, the applicant requested an
appeal to the AFLAB. The AFLAB can make recommendations to the Minister, but it
has no authority to make licencing decisions.
[24]
On August 28, 2009, the applicant met with
Minister Shea in her office in Summerside, Prince Edward Island. The applicant
claims that during this meeting, Minister Shea agreed to send this matter
directly to AFLAB, bypassing the regional appeal level and that she would abide
by whatever recommendation AFLAB made.
[25]
On January 6, 2010, the Minister granted the
request for an appeal to AFLAB.
[26]
In February 2010, Mr. Jones passed away.
[27]
On September 16, 2010, Mr. Jones’ estate
requested that his licence be reissued as replacement licence to another third
party.
[28]
On April 15, 2011, the applicant’s appeal
proceeded before AFLAB. AFLAB recommended in its decision that the licence be
reissued to the applicant, provided that he was currently eligible to receive
the licence. The recommendation was based on the extenuating circumstances. That
is, DFO had provided erroneous information to the applicant as to when he would
be eligible to have the licence transferred to him and that DFO removed Mr.
Jones’ core status while he was under evaluation.
[29]
AFLAB reasoned that had the applicant been given
the proper information, he and Mr. Jones would have been able to reissue the licence
before DFO put a freeze on it.
[30]
On May 18, 2011, Mr. Keith Ashfield took office
as the new Minister of Fisheries and Oceans.
II.
Decision by Minister Ashfield
[31]
On March 2, 2012, Minister Ashfield rejected
AFLAB’s recommendation and denied the applicant’s request to have the licence
reissued to him as a replacement licence. The Minister’s rationale is as
follows:
Fisheries and Oceans Canada applies the Commercial
Fisheries Licensing Policy for Eastern Canada, 1996 when making decisions
with respect to licensing. As per subsection 16(2) of this policy, the issuance
of a replacement licence, also commonly referred to as a licence “re-issuance”,
states that the request must be made by the licence holder. In this case, the
Estate of Mr. Vincent Jones has not made a request for the issuance of a
replacement licence to you.
In recommending the re-issuance of the licences
of the Estate of Mr. Vincent Jones to you, the Board failed to consider the
decisions made by the New Brunswick Court of Queen’s Bench (April 11, 2005) and
by the New Brunswick Court of Appeal (April 11, 2006) in the dispute opposing
yourself to Mr. Jones. It is my understanding that the Courts concluded that
the Trust Agreement you entered into with Mr. Jones for the re-issuance of his licences
was frustrated, and therefore could not be executed. …
[32]
In April 2012, the late Mr. Jones’ licence was
reissued to the third party with approval from DFO.
[33]
In the fall of 2012, Minister Ashfield became
ill and Minister Shea became Acting Minister of Fisheries and Oceans.
[34]
On October 29, 2012, the applicant requested a
copy of the AFLAB recommendations.
[35]
On July 15, 2013, Minister Shea was reappointed.
[36]
On October 18, 2013, almost a year after the
request, a copy of the AFLAB recommendations were provided to the applicant,
along with a letter stating that the matter was considered closed. The
applicant received these materials on October 25, 2013.
III.
Decision by Minister Shea
[37]
On November 10, 2013, the applicant visited
Minister Shea at her home to suggest a three person panel to reconsider his
case. The panel would be Charles Gaudet from DFO Moncton, Mr. Jenkins, the
applicant’s advisor and an unbiased person of the Minister’s choice. Minister
Shea agreed to think about this suggestion.
[38]
In a letter dated November 27, 2013, Minister
Shea wrote that she believes the applicant’s matter “has
been thoroughly addressed and there is no merit for further review.” The
applicant received this letter on December 9, 2013.
IV.
Issues
[39]
The applicant raises the following issues for my
consideration:
1.
Was the decision of Minister Shea made in
contravention of procedural fairness and of the elementary principles of
natural justice?
•
Discretionary power;
•
Procedural fairness;
•
Legitimate Expectation;
•
Irrelevant Considerations;
•
Unreasonableness and Bad Faith;
•
Negative Inference.
[40]
The respondent raises two preliminary issues:
1.
Which decision is being judicially reviewed and
is it reviewable?
2.
Should portions of the applicant’s affidavit be
struck?
[41]
The respondent also raises seven issues on the
merits:
1.
What is the standard of review?
2.
Should the Court conclude that Minister Shea’s
letter was a decision (which was denied) and was the decision reasonable?
3.
Was Minister Ashfield’s decision reasonable?
4.
Could the alleged promise fetter the Minister’s
discretion?
5.
Did the decision conform with the requirements
of natural justice / procedural fairness?
6.
If not, was the error material?
7.
Is the applicant entitled to the relief sought?
[42]
In my view, there are six issues:
A.
Which decision(s) is(are) subject to judicial
review?
B.
Should portions of the applicant’s affidavit be
struck?
C.
What is the standard of review?
D.
Did Minister Ashfield or Minister Shea breach procedural
fairness?
E.
Was the decision subject to judicial review
reasonable?
F.
What relief is available?
V.
Applicant’s Written Submissions
[43]
With respect to the standard of review, the
applicant submits issues of procedural fairness are reviewed on a standard of correctness.
[44]
First, the applicant submits since he relied on
the incorrect information provided to him by DFO to his detriment, he did not
apply for a transfer of the licence when he was eligible, which was in August
1999, which was prior to the licence being frozen and prior to the eventual
conflict between he and Mr. Jones. He argues DFO’s misinformation caused him to
become a “victim to a frustrated Trust Agreement.”
[45]
Second, with respect to the Minister’s
discretionary power, the applicant submits Minister Shea’s decision is contrary
to the rules of natural justice and that she exercised her discretion in bad
faith. A discretionary decision made by a Minister with far reaching
discretion, is only subject to judicial review, where there has been bad faith on
the part of the policy maker, non-conformity with principles of natural justice
and reliance upon considerations that are irrelevant or extraneous to the
statutory purpose (Maple Lodge Farms Ltd v Canada, [1982] 2 S.C.R. 2 at
paragraph 7, 44 NR 354).
[46]
The applicant submits the discretion of the
Minister to issue fishing licences is outlined at subsection 7 of the Fisheries
Act, RSC, 1985, c F-14. This discretion must be exercised: i) in accordance
with the requirements of natural justice; ii) based on relevant consideration;
iii) without arbitrariness; iv) in good faith; v) in accordance with applicable
statute or regulations; and vi) in accordance with the provisions of the Charter
(Comeau’s Sea Foods Ltd v Canada (Minister of Fisheries and Oceans),
[1997] 1 S.C.R. 12 at paragraphs 30, 31, 36, 37 and 51, [1997] SCJ No 5 [Comeau]).
[47]
He argues based on the doctrine of legitimate
expectation that arose at the August 28, 2009 meeting, Minister Shea’s decision
is contrary to the rules of natural justice and that she exercised her
discretion in bad faith.
[48]
Second, with respect to procedural fairness, the
applicant submits Minister Shea did not discharge her duty of procedural
fairness. Here, the applicant argues that he is owed a duty of procedural fairness.
He relied on Minister Shea’s promise, to his detriment. He obtained a loan to
acquire the licence initially and moved to New Brunswick to fish in an attempt
to qualify and to obtain the licence. He endured great financial hardship as a
result of the licence not being reissued to him. Minister Shea’s decision was
of great importance to the applicant and his family. Though the applicant does
not have a “right” to the licence, he does have a direct financial interest in
the outcome of Minister Shea’s decision which is sufficient to trigger the duty
of procedural fairness pursuant to Mount Sinai Hospital Center v Quebec
(Minister of Health and Social Services), 2001 SCC 41 at paragraph 18,
[2001] SCJ No 43.
[49]
In Bancarz v Canada (Minister of Transport),
2007 FC 451, [2007] FCJ No 599, this Court ruled that procedural fairness was
breached where the applicant was not given a chance to be heard prior to the
internal review. The applicant argues the same happened in this case, because
he was not given an opportunity to respond to the issue of the alleged
inconsistency the DFO discovered after the AFLAB hearing with respect to his
testimony at the trial in 2005 to his testimony in front of AFLAB. Further, the
DFO acknowledges in its own documentation that AFLAB could have been reconvened
to address this issue, but it was not referred because the DFO favoured the
Estate’s request to issue the licence to a third party. In addition, the
applicant argues the DFO and the Minister expanded the scope of the review of
AFLAB by considering the contents and transcripts of his 2005 trial testimony
which was not before AFLAB. These are breaches to the rules of natural justice
and equitable fairness.
[50]
Also, the applicant submits Minister Ashfield
and Minister Shea’s reliance that AFLAB did not consider the New Brunswick Court
rulings also expanded the scope of the AFLAB hearing and that these rulings are
irrelevant to the present case.
[51]
Therefore, the applicant submits Minister Shea
breached procedural fairness.
[52]
Third, with respect to legitimate expectation,
the applicant submits that Minister Shea should have followed the AFLAB
recommendation and if not, should have provided sufficient reasons for her
rejection.
[53]
The applicant submits the legitimate
expectations of a person can determine the extent of the duty of fairness required
in a specific circumstance and this may require more extensive rights than what
would be otherwise afforded (Baker v Canada (Minister of Citizenship and
Immigration), [1999] 2 S.C.R. 817 at paragraph 26, [1999] SCJ No 39 [Baker]).
He argues in the present case, Minister Shea made a representation at the
August 28, 2009 meeting that she would follow the AFLAB recommendation, yet she
failed to do so. Here, he relied on the Minister’s expected bona fide
handling of this matter. The applicant argues, therefore, he was entitled to
have the AFLAB recommendation followed.
[54]
Also, in light of legitimate expectations
arising from her representation, Minister Shea in this case has a more onerous
duty of procedural fairness in justifying her decision not to follow the
recommendation of the AFLAB. He argues a letter of rejection is insufficient to
satisfy this duty. Further, since Minister Shea was aware of the alleged
inconsistency, the applicant should have been afforded an opportunity to explain
this alleged inconsistency.
[55]
The applicant requests this Court to issue an
order of mandamus requiring the Minister to follow the AFLAB
recommendation and argues the various requirements for a mandamus to be
issued are met per Apotex Inc v Canada (Attorney General), [1994] 1 FC
742, 162 NR 177. Here, Minister Shea fettered her own discretion and owed the
applicant a certain duty.
[56]
Fourth, the applicant submits Minister Shea
relied on irrelevant and extraneous considerations. About the refusal, Minister
Ashfield and by extension Minister Shea, relied on the fact the Estate did not
request the licence be reissued as a reason to deny the applicant’s appeal and
a possible legal challenge by the Estate. He argues the Estate has no right to
the licence because the respondent has taken a stance that a licence is not a
right or property of a person, but a privilege. The applicant submits thereby
these are irrelevant factors.
[57]
Fifth, the applicant submits Minister Shea’s
decision was unreasonable and was made in bad faith.
[58]
Sixth and lastly, the applicant submits this
Court should draw a negative inference for two instances: 1) the respondent
failed to contradict the applicant’s submissions; and 2) the respondent failed
to provide the applicant with documents he requested, which includes Minister
Shea’s files and DF’s files referencing AFLAB and the August 28, 2009 meeting.
VI.
Respondent’s Written Submissions
[59]
First, the respondent submits the Federal
Courts Rules, SOR/98-106, section 302, limits a judicial review to a single
decision. The respondent argues although the applicant asserts the decision he
wishes to have judicially reviewed is that of Minister Shea dated November 27,
2013, his submissions make reference to Minister Ashfield’s decision on March
2, 2012. It submits Minister Shea’s November 27, 2013 letter merely informed
the applicant that the matter had been thoroughly addressed and there was no
merit for judicial review under section 18.1 of the Act. Minister Shea did not
exercise new discretion and there was no reconsideration of a prior decision on
the basis of new evidence or new facts (Philipps v Librarian and Archivist
of Canada, 2006 FC 1378 at paragraph 32, 157 ACWS (3d) 232 [Philipps]).
[60]
Second, the respondent submits the applicant’s
affidavit, sworn on February 11, 2014, contains instances of hearsay,
speculation, opinion, argument or legal conclusion. Federal Courts Rules
81(1) allows for affidavits in judicial review applications based on facts
within a deponent’s personal knowledge. Paragraphs 21, 53, 56, 57, 59, 60, 78,
79, 82, 83 and 85 violate this rule. Therefore, they should be struck in whole
or in part.
[61]
Third, the respondent submits the standard of
review of a discretionary decision of the Minister of Fisheries is
reasonableness (Malcolm v Canada (Minister of Fisheries and Oceans),
2014 FCA 130 at paragraphs 33 to 35, [2014] FCJ No 499 [Malcolm]; and Mainville
v Canada (Attorney General), 2007 FC 251 at paragraph 8, [2007] FCJ No 323 [Mainville]).
The standard of review in matters of procedural fairness, natural justice, or
legitimate expectations is correctness.
[62]
Fourth, the respondent submits Minister Shea’s
letter was not a “decision” subject to judicial review. Here, the letter was to
inform the applicant that there was no reason to revisit his file. The
applicant did not put forward any new information or evidence that would
warrant a review of his case.
[63]
Fifth, the respondent submits Minister Ashfield’s
decision was reasonable. It argues the actual substantive decision in question
is the one made by Minister Ashfield on March 2, 2012. There, Minister Ashfield
considered the AFLAB recommendation, however, refused the applicant’s request
for reissuance of a replacement licence because the request did not come from
the licence holder or his Estate. The Minister further noted that AFLAB did not
consider the outcome of the applicant’s litigation against Mr. Jones. Since
AFLAB is without statutory authority to make decisions, it was up to Minister
Ashfield to reject its recommendations. Here, his decision was soundly based on
the Commercial Fisheries Licensing Policy for Eastern Canada, 1996 [Fisheries
Policy] and was reasonable.
[64]
Sixth, the respondent submits the alleged
promise from the August 28, 2009 meeting with Minister Shea was not enforceable
because it was not within Minister Shea’s power to fetter her own discretion or
that of Minister Ashfield. Any representation that serves to limit or direct
the exercise of the discretion that Parliament assigned to the Minister would
clearly be inconsistent with the Fisheries Act as it would fetter the
Minister’s authority to manage the fishery (Pacific National Investments Ltd
v Victoria (City), 2000 SCC 64 at paragraphs 71 to 74, [2000] 2 S.C.R. 919 [Victoria];
and Andrews v Canada (Attorney General), 2009 NLCA 70 at paragraphs 64
to 84, [2009] NJ No 361 [Andrews]). It cites paragraph 83 of Andrews
for further support that “discretion may not be
constrained for future use”.
[65]
In this case, even if Minister Shea promised to
follow the recommendations of AFLAB, it was not within her power to fetter her
own discretion or that of a subsequent minister.
[66]
Seventh, the respondent submits there was no
breach of procedural fairness in this case. The doctrine of legitimate
expectations forms part of the doctrine of procedural fairness of natural
justice; however, legitimate expectations cannot serve to create or enforce
substantive rights (Agraira v Canada (Public Safety and Emergency
Preparedness), 2013 SCC 36 at paragraph 97, [2013] 2 S.C.R. 559 [Agraira]).
It argues the relief sought by the applicant is not a procedural matter; rather
it is a substantive remedy. Also, the applicant failed to provide explanations
for the inconsistencies between his testimony at trial and his testimony in
front of the AFLAB. Further, Minister Ashfield’s and Minister Shea’s decisions
were not predominately based on the contradictory statements. Therefore, the
decision conformed to the requirements of natural justice and procedural
fairness.
[67]
Eighth, the respondent submits even if this
Court found the applicant was denied the right to address the issue of his
contradictory testimony, the outcome would not have changed based on Fisheries
Policy. This is because the error would be immaterial since the applicant at no
time had a right to the licence and at no time did Mr. Jones or his Estate
request the reissuance of the licence to the applicant while the applicant and
Mr. Jones were both eligible to effect such a reissuance.
[68]
Ninth, the respondent submits the applicant is
not entitled to the relief requested. Firstly, the requirements for mandamus
are not met. Here, under the eight requirements listed in Canada (Attorney
General) v Arsenault, 2009 FCA 300 at paragraph 32, [2009] FCJ No 1306 [Arsenault],
there was no duty for the Minister to follow the AFLAB recommendations. There
was no duty owed to the applicant by the Minister; and even if there was any,
it would have been to the licence holder. Also, the Minister’s discretion was
absolute under subsection 7(1) of the Fisheries Act in granting a
fishing licence. The applicant has no right to compel the exercise of
discretion in a particular way. Further, the applicant has not vested his right
to a licence or to the reissuance of a licence. The applicant is equitably
barred because he did not come to the Court with clean hands, based on his
conflicting testimony in the Court of Queen’s Bench and before the AFLAB. Also,
the balance of convenience favours the Minister because the applicant has no
vested right to the licence.
[69]
Next, the respondent argues it is trite law that
damages are not available on an application for judicial review under section
18.1 (Canada (Attorney General) v TeleZone Inc, 2010 SCC 62, [2010] SCJ
No 62 [TeleZone]). Further, since AFLAB is a non-statutory body mandated
by policy to make recommendations and its recommendation is not under judicial
review, this Court is without jurisdiction under subsection 18.1(3) to refer
this matter back to it.
[70]
Therefore, the respondent submits the applicant’s
application for judicial review is without merit.
VII.
Analysis and Decision
A.
Issue 1 - Which decision(s) is (are) subject to
judicial review?
[71]
In my view, both Minister Shea’s decision and
Minister Ashfield’s decision can be subject to judicial review.
[72]
Federal Courts Rules 302 limits a judicial review to a single decision: “[u]nless the Court orders otherwise, an application for
judicial review shall be limited to a single order in respect of which relief
is sought.” In the present case, the applicant seeks to review Minister
Shea’s letter.
[73]
The respondent argues this decision is a courtesy
letter and it is not judicially reviewable; but rather the applicant makes
several references to Minister Ashfield’s decision in his submissions.
[74]
In Philipps, at paragraph 32, this Court
found a courtesy letter is not judicially reviewable:
[…] this Court has clearly held that a courtesy
letter written in reply to an application for review or reconsideration is not
a decision or an order within the meaning of the Federal Courts Act,
R.S.C. 1985, c. F-7, and thus cannot be challenged by way of a judicial review
application (Dhaliwal v. Canada (M.C.I.), [1995] F.C.J. No. 982; Moresby
Explorers v. Gwaii Haanas National Park Reserve, [2000] A.C.F. No. 1944;
Hughes v. Canada, 2004 FC 1055, para. 6). […]
[Emphasis added]
[75]
In my view, Minister Shea’s letter is not a “courtesy
letter”, but rather it is a refusal to reconsider. Here, the applicant visited
Minister Shea on November 10, 2013 and informally requested her to reconsider
his case while suggesting the use of a three member panel. Subsequently,
Minister Shea responded with the letter, stating that the matter has been
thoroughly addressed and there is no merit for further review. This, based on
the informal request, is a decision of refusal to reconsider. Therefore, it is
subject to judicial review within the meaning of the Act.
[76]
In my view, a judicial review for a decision of
reconsideration cannot be thoroughly conducted without looking at the original
decision, which in this case is the decision of Minister Ashfield.
B.
Issue 2 - Should portions of the applicant’s
affidavit be struck?
[77]
I agree with the respondent in part that some of
the portions of the applicant’s affidavit are inadmissible.
[78]
Federal Courts Rules 81(1) provides that the content of an affidavit should be based on
facts within the person’s personal knowledge:
Affidavits shall be confined to facts
within the deponent’s personal knowledge except on motions, other than
motions for summary judgment or summary trial, in which statements as to the
deponent’s belief, with the grounds for it, may be included.
[Emphasis added]
[79]
Here, the respondent argues paragraphs 21, 53,
56, 57, 59, 60, 78, 79, 82, 83 and 85 of the applicant’s affidavit, sworn on
February 11, 2014 in this matter, violates this rule because these paragraphs contain
instances of hearsay, speculation, opinion, argument or legal conclusion. I
agree in part.
[80]
Paragraph 21 contains an opinion of the
applicant regarding the cause of the breach of the trust agreement. Therefore,
it should be struck.
[81]
Paragraph 53 contains speculation regarding
whether or not the applicant was evaluated against the eligibility criteria of
receiving Mr. Jones’ licence. Therefore, it should be struck.
[82]
Paragraph 56 contains hearsay regarding what Mr.
Jenkins said at the hearing in front of the AFLAB. Therefore, it should be
struck.
[83]
Paragraph 57 again contains hearsay regarding
what was said in front of the AFLAB. Therefore, it should be struck.
[84]
Paragraph 59 contains an interpretation of the
AFLAB interpretation. Therefore, it should be struck.
[85]
Paragraph 60 contains hearsay regarding the
AFLAB hearing. Therefore, it should be struck.
[86]
Paragraph 78 contains an opinion regarding the
decision by the Ministry to deny the reissuance of the licence. Therefore, it
should be struck.
[87]
Paragraph 79 contains a legal conclusion.
Therefore, it should be struck.
[88]
Paragraph 82 contains an opinion. Therefore, it
should be struck.
[89]
Paragraph 83 contains arguments regarding the
refusal to reissue the licence. Therefore, it should be struck.
[90]
Lastly, I do not find paragraph 85 violates Federal
Courts Rules 81(1). It is therefore appropriate for the affidavit.
[91]
Based on the aforementioned rationale, I would
strike out paragraphs 21, 53, 56, 57, 59, 60, 78, 79, 82 and 83 of the
applicant’s affidavit.
C.
Issue 3 - What is the standard of review?
[92]
Where previous jurisprudence has determined the
standard of review applicable to a particular issue before the court, the
reviewing court may adopt that standard (Dunsmuir v New Brunswick, 2008
SCC 9 at paragraphs 57, [2008] 1 S.C.R. 190 [Dunsmuir]).
[93]
In Malcolm, the Federal Court of Appeal
ruled the standard of review of a discretionary decision of the Minister of
Fisheries and Oceans is reasonableness (at paragraphs 33 to 35). The standard
of reasonableness in such cases requires me to examine the following:
35 A discretionary policy decision
that is made in bad faith or for considerations that are irrelevant or
extraneous to the legislative purpose is unreasonable by that very fact. Such a
decision can also be unreasonable if it is found to be irrational,
incomprehensible or otherwise the result of an abuse of discretion. The
ultimate question in judicially reviewing the Minister’s decision in this case
is to determine whether the decision falls within a range of reasonable
outcomes having regard for both the context in which the decision was made and
the fact that the decision itself involves policy matters in which a reviewing
court should not interfere by substituting its own opinion to that of the
Minister’s. It is with these considerations in mind that the reasonableness of
the Minister’s decision should be determined.
[94]
As for the standard of review in matters of
procedural fairness, natural justice or legitimate expectations, it is
correctness (Baker).
D.
Issue 4 - Did Minister Ashfield or Minister Shea
breach procedural fairness?
[95]
On one side, the applicant argues there was a
breach of procedural fairness because he was not given an opportunity to
respond to the issue of the alleged inconsistency in his testimony. He also
argues there was legitimate expectation in light of Minister Shea’s promise to
adopt the AFLAB’s recommendation. Further, he argues the Ministers in making
their decisions, unfairly expanded the scope of information considered to
include the New Brunswick Court rulings. On the other side, the respondent
argues the relief sought by the applicant is not a procedural matter; rather, it
is a substantive remedy.
[96]
In my view, the key determination was whether or
not the Minister had a duty to provide an opportunity to the applicant to
address the alleged inconsistency. Although this inconsistency was not the sole
reason why Minister Ashfield denied the reissuance and why Minister Shea confirmed
this refusal, the applicant’s procedural rights should not be confused with the
reasonableness of the decision.
[97]
In Baker, the Supreme Court of Canada
identified five factors affecting the content of the duty of fairness (at
paragraphs 21 to 27). I find the third factor and fourth factor are of
particular importance in this case: the importance of the decision to the
individual or individuals affected, and the legitimate expectations of the person
challenging the decision.
[98]
In the present case, the applicant spent
extensive financial resources in order to try to get the licence reissued to
him. He moved his residence in order to fulfill the allegedly mistaken
residency requirement. Therefore, it can be said that the decision carries
great financial weight to the applicant.
[99]
As for legitimate expectations, I agree with the
respondent that the doctrine of legitimate expectations forms part of the
doctrine of procedural fairness of natural justice; however, legitimate
expectations cannot serve to create or enforce substantive rights (Agraira
at paragraph 97). Here, the applicant alleges that Minister Shea promised to
follow the recommendation from the AFLAB. Although the applicant has an
expectation of approval for reissuance of the licence by the Minister, this
does not create a substantive right to the reissuance.
[100] Nonetheless, I agree with the applicant that he was entitled to
procedural safeguards, such as the opportunity to be heard and reasons for the
decision.
[101] In this case, the applicant did not get an opportunity to respond to
the alleged inconsistency. He was not informed that Minister Ashfield and
Minister Shea used information from Doucette v Jones in their decisions
when the decisions were being made; thereby, he did not get an opportunity to
address the alleged inconsistency. In my view, this was a breach of procedural
fairness. However, I find this breach was immaterial.
[102] The respondent submits even if this Court finds the applicant was
denied the right to address the issue of his contradictory testimony, the error
is immaterial as the outcome would not have changed based on Fisheries Policy.
It argues the applicant at no time had a right to the licence and at no time
did Mr. Jones or his Estate request the reissuance of the licence to the
applicant while they were both eligible to effectuate such a reissuance. I
agree.
[103] Here, the issue of inconsistency, addressed or not, does not
overcome or replace the fact that the licence holder did not request the
reissuance pursuant to section 7 of the Fisheries Act.
[104] Also, the applicant complains Minister Shea should have given more
reasons for her refusal to reconsider in light of her promise. I disagree.
Minister Shea’s reason, although brief, did sufficiently explain why she
refused to reconsider. I am satisfied that this reason also served to explain
why she did not follow her alleged promise; that is, the matter had been
thoroughly addressed by her predecessor.
[105] Therefore, although I find there was a breach of procedural fairness
by not affording an opportunity for the applicant to respond to the alleged
inconsistency, this error did not affect the Ministers’ decisions.
E.
Issue 5 - Was the decision subject to judicial
review reasonable?
[106] I will first refer to Minister Ashfield’s decision and then Minister
Shea’s decision to not reconsider, which is the decision being judicially
reviewed.
(1)
Minister Ashfield’s Decision
[107]
The discretion of the Minister to issue fishing licences
is outlined at section 7 of the Fisheries Act. It must be exercised: i)
in accordance with the requirements of natural justice; ii) based on relevant
consideration; iii) without arbitrariness; iv) in good faith; v) in accordance
with applicable statute or regulations; and vi) in accordance with the
provisions of the Charter (Comeau at paragraphs 30, 31, 36, 37
and 51).
[108] With respect to the reissuance of a fishing licence, the Fisheries
Policy in subsection 16(2) provides the request has to be submitted by the
current licence holder.
(2) Subject to subsection (5), a replacement
licence may be issued upon request by the current licence holder to an
eligible fisher recommended by the current licence holder.
[Emphasis added]
[109] First, the alleged Minister Shea’s promise to follow the
recommendation from the AFLAB does not create a substantive right for a certain
result. In Victoria, the Supreme Court of Canada stated any
representation that serves to limit or direct the exercise of the discretion
that Parliament assigned to the Minister would clearly be inconsistent because
it would fetter the Minister’s authority to manage the fishery (Victoria
at paragraphs 71 to 74; and Andrews at paragraphs 64 to 84). To exercise
the discretion in a particular manner is to effectuate in an improper indirect
fettering of the Minister’s discretion (Andrews at paragraph 84):
Applying these principles to the appeal now
before this Court leads to the conclusion that it is plain and obvious the
appellant fishers’ action cannot succeed. In accordance with the legislation,
the Minister is clothed with discretion to issue crab licences, and to include
a condition regarding quota, for “the proper management and control” of the
fishery or for the “conservation and protection of fish” (see paragraph 66,
above). Crab licences are issued annually resulting in yearly exercise of the
Minister’s discretion. That discretion must be exercised in the public interest
and may not be fettered directly or indirectly. A claim for damages for
failure to exercise the discretion in a particular manner amounts to an
improper indirect fettering of the Minister’s discretion. As a result, the
fact that the Minister made a “commitment” to the appellant fishers some years
earlier cannot ground a claim in damages. The same analysis applies and the
same conclusion follows whether the claim is made in contract or tort. In
either case, the effect is an indirect fettering of the ministerial discretion.
[Emphasis added]
[110] Second, the licence holder, here either Mr. Jones or Mr. Jones’ Estate,
did not make the request for reissuance while the applicant and the licence
holder were both eligible to effectuate such a reissuance. The applicant’s
request did not meet the requirement under subsection 16(2) of the Fisheries
Policy. In refusing this request, Minister Ashfield exercised his discretion in
accordance with the law and did not make the decision in bad faith.
[111] Third, I find there is insufficient evidence to show that DFO misled
the applicant with respect to the residency requirement; and even if it is
established, this judicial review is not an appropriate forum to adjudicate
this issue.
[112] The applicant argues had he received the correct information
regarding the residency requirement, the reissuance request would have been
effected prior to the imposition of the “freeze” on Mr. Jones’ licence.
However, the issue of the trust agreement between the applicant and Mr. Jones
was already litigated in Doucette v Jones; and it is in this former
civil case the effect of DFO’s alleged misinformation would potentially have
affected the direct outcome on the reissuance. There, if the DFO was an added
party to the litigation, instead of it not being bound by trust agreements between
individuals, its position might have been changed in light of this alleged
misinformation as to potentially affect the ultimate outcome on the reissuance.
I cannot guess what the result would have been, had this issue been brought up
or had the DFO been joined as a defendant.
[113] In my view, this judicial review is not an appropriate forum to
consider and assess the effect of the alleged misinformation from the DFO.
[114] Therefore, I am satisfied that Minister Ashfield’s decision was
reasonable.
(2)
Minister Shea’s Decision
[115] As I explained above, although Minister Shea allegedly promised to
follow the recommendation from the AFLAB, this promise has no legal effect
because it indirectly fettered her discretion. The law also does not allow her
to fetter the discretion of her successor, Minister Ashfield.
[116] In Andrews at paragraph 83, the Newfoundland Court of Appeal
stated:
To summarize, the above decisions support
several conclusions. First, where, pursuant to legislation, a minister is
authorized to exercise discretion in the public interest, that discretion may
not be constrained for future use or fettered either directly or indirectly,
unless the legislation otherwise provides. Indirect fettering includes exposing
the minister or government to liability for damages or payment of compensation
for failure to exercise the discretion in a particular way. Despite the
apparent harshness of the result, an agreement, implied undertaking or
representation having the effect of fettering the minister’s authority is
unenforceable and damages are not available. Nonetheless, the minister must act
in good faith, not arbitrarily, and must not base his or her decision on
considerations irrelevant or extraneous to the statutory purpose. Finally,
while damages are not available, a claim for unjust enrichment may be
permitted.
[117] In St Anthony Seafoods Limited Partnership v Newfoundland and
Labrador (Minister of Fisheries and Aquaculture), 2004 NLCA 59, [2004] NJ
No 336 (leave to appeal to Supreme Court of Canada denied), the Newfoundland
and Labrador Court of Appeal stated at paragraph 81:
I therefore conclude that the Fish
Inspection Act clearly states, as a matter of public policy, that the
Minister has a broad discretion in respect of processing licenses which is to
be exercised from time to time as the Minister determines. That policy would be
undermined if a Minister were estopped from the exercise of that discretion by
representations of his or her predecessors as the ability of the Minister to
respond to current socio-economic concerns in the fishing industry could be
severely circumscribed.
[118] Although this decision is related to the Fish Inspection Act,
the same can be said of section 7 of the Fisheries Act. In Comeau,
the Supreme Court concluded that section 7 of the Act gave the Minister an
absolute discretion either to issue or authorize to be issued fishing licences.
[119] Based on the above, Minister Shea could not fetter her discretion or
the discretion of Minister Ashfield.
[120] Consequently, the application for judicial review must be dismissed.
[121] Because of my conclusions, I need not deal with Issue 6 regarding
relief.
[122] The respondent has requested costs of the application. Because of
the difficulties encountered by Mr. Doucette in this matter and the factual
history of the case, I am not prepared to make an award of costs.
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