Date: 20011207
Docket: A-798-00
Neutral citation: 2001 FCA 384
CORAM: STRAYER, J.A.
SHARLOW, J.A.
MALONE, J.A.
BETWEEN:
OSWAN TUCKER AND TUCKER & SON LTD.
Appellant
and
HER MAJESTY THE QUEEN
as represented by the Minister of Fisheries and Oceans
Respondent
Heard at Fredericton, New Brunswick, on December 7, 2001.
Judgment delivered at Fredericton, New Brunswick, on December 7, 2001.
REASONS FOR JUDGMENT BY: Malone, J.A.
Date: 20011207
Docket: A-798-00
Neutral citation: 2001 FCA 384
CORAM: STRAYER, J.A.
SHARLOW, J.A.
MALONE, J.A.
BETWEEN:
OSWAN TUCKER AND TUCKER & SON LTD.
Appellant
and
HER MAJESTY THE QUEEN
as represented by the Minister of Fisheries and Oceans
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Fredericton, New Brunswick
on December 7, 2001.)
MALONE J.A.
[1] We are all of the opinion that this appeal should be dismissed.
[2] In this case, the Minister exercised his discretion under section 7 of the Fisheries Act to compel the appellant, Mr. Tucker, to utilize either his inshore licence or his offshore licence but not both at the same time. Following Carpenter Fishing Corporation v. The Queen, [1998] 2 F.C. 548 (FCA) and [1982] 2 S.C.R. 2">Maple Lodge Farms v. Canada, [1982] 2 S.C.R. 2 at 6-7, we acknowledge that the issue as to whether the means chosen by the Minister creates either good or bad policy is not to be decided by the Court. Rather, the Court should only concern itself with ensuring that the decision is made in good faith, falls within the broad purposes of the Act and is not patently unreasonable, which we take to mean clearly irrational. In the present case, we discern neither bad faith nor an improper purpose that would take the decision outside the scope of the Minister's statutory discretion. The record discloses that the Ministerial requirement that Mr. Tucker use only one, but not both of his licences, was made with the purpose of managing and conserving the fishery. That decision is within the scope of the Minister's section 7 discretion and is not patently unreasonable. It cannot therefore be the basis for an action in damages.
[3] In our analysis, Rothstein J. came to the only rational conclusion available on the evidence. The appeal will be dismissed with costs.
"B. Malone"
J.A.
Fredericton, New Brunswick
December 7, 2001
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-798-00
STYLE OF CAUSE: OSWAN TUCKER AND TUCKER & SON LTD.
v. HER MAJESTY THE QUEEN
PLACE OF HEARING: Fredericton, New Brunswick
DATE OF HEARING: December 7, 2001
REASONS FOR JUDGMENT BY: Malone J.A..
DATED: December 7, 2001
APPEARANCES:
Keith S. Morgan. FOR THE APPELLANT
Ginette Mazerolle FOR THE RESPONDENT
SOLICITORS OF RECORD:
Browne Fitzgerald Morgan FOR THE APPELLANT
Churchill Park Law Offices
P. O. Box 23135
Terrace on the Square
St. John's, Newfoundland
A1B 4J9
Department of Justice FOR THE RESPONDENT
Halifax Regional Office
Suite 1400, Duke Tower
5251 Duke Street
Halifax, Nova Scotia
B3J 1P3
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