Date: 20091020
Docket: A-289-08
Citation: 2009 FCA 299
CORAM: NADON
J.A.
PELLETIER J.A.
TRUDEL J.A.
BETWEEN:
ATTORNEY
GENERAL OF CANADA
Appellant
and
Jean-Gilles Chiasson, Marc
Couture, Pêcheries Jean-Yan II Inc., Aurélien Haché,
Robert F. Haché, Estate of Richard
Allain, Roland Anglehart Jr.,
Bernard Arseneault, Héliodore Aucoin,
Albert Benoît, Robert Boucher, Élide Bulger,
Gérard Cassivi, Ludger Chiasson, Martin
M. Chiasson, Lucien Chiasson,
Jacques Collin, Robert Collin, Roméo G.
Cormier, 2973‑0813 Quebec Inc.,
Les Crustacées de Gaspé Ltée, 2973‑1288
Quebec Inc., 3087‑5199 Quebec Inc.,
Lino Desbois, Donald Duguay, Denis
Duguay, Carol Duguay, Marius Duguay,
Charles-Aimé Duguay, Randy Deveau,
Cyrenus Dugas, Edgar Ferron, Livain Foulem,
Simon J. Gionet, Jocelyn Gionet, Claude
Gionest, Aurèle Godin, Gregg Hinkley,
Jean-Pierre Huard, Donald R. Haché, Guy
Haché, Jacques E. Haché,
Jean-Pierre Haché, Jacques A. Haché,
Jason-Sylvain Haché, Estate of
Sylva Haché, Gaétan Haché, Rhéal Haché,
Alban Hautcoeur, Fernand Hautcoeur,
Jean-Claude Hautcoeur, Vincent Jones,
Réjean LeBlanc, Christian Lelièvre,
Elphège Lelièvre, Jean-Elie Lelièvre,
Jules Lelièvre, Dassise Mallet, Delphis Mallet,
Francis Mallet, Odile Mallet, Jean-Marc
Marcoux, André Mazerolle, Eddy Mazerolle,
Gilles A. Noël, Lévis Noël, Serge Noël,
Onésime Noël, Nicolas Noël, Martin Noël,
Raymond Noël, Francis Parisé, Domitien
Paulin, Sylvain Paulin, Claude Poirier,
Les Pêcheries Serge-Luc Inc., Pêcheries
Ray-L. Inc., Pêcheries FACEP Inc.,
Les Pêcheries Denise Quinn Syvrais Inc.,
Pêcheries François Inc., Pêcheries J.V.L. Ltée.,
Pêcheries Jimmy L. Ltée., Bell Bay
Products Ltd., Roger Pinel,
Estate of Jean-Pierre Robichaud, Adrien
Roussel, Jean-Camille Roussel,
Mathias Roussel, Steven Roussy, Mario
Savoie, Jean-Marc Sweeney, Michel Turbide,
Réal Turbide, Donat Vienneau, Fernand
Vienneau, Livain Vienneau, Rhéal Vienneau
Respondents
Heard at Halifax, Nova Scotia, on May 25, 2009.
Judgment delivered at Ottawa, Ontario, on October 20, 2009.
REASONS FOR JUDGMENT BY: NADON
J.A.
CONCURRED
IN BY: PELLETIER
J.A.
TRUDEL
J.A.
Date: 20091020
Docket: A-289-08
Citation: 2009 FCA 299
CORAM: NADON
J.A.
PELLETIER
J.A.
TRUDEL
J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Appellant
and
Jean-Gilles Chiasson, Marc Couture,
Pêcheries Jean-Yan II Inc., Aurélien Haché,
Robert F. Haché, Estate of Richard
Allain, Roland Anglehart Jr.,
Bernard Arseneault, Héliodore Aucoin,
Albert Benoît, Robert Boucher, Élide Bulger,
Gérard Cassivi, Ludger Chiasson, Martin
M. Chiasson, Lucien Chiasson,
Jacques Collin, Robert Collin, Roméo G.
Cormier, 2973‑0813 Quebec Inc.,
Les Crustacées de Gaspé Ltée, 2973‑1288
Quebec Inc., 3087‑5199 Quebec Inc.,
Lino Desbois, Donald Duguay, Denis
Duguay, Carol Duguay, Marius Duguay,
Charles-Aimé Duguay, Randy Deveau,
Cyrenus Dugas, Edgar Ferron, Livain Foulem,
Simon J. Gionet, Jocelyn Gionet, Claude
Gionest, Aurèle Godin, Gregg Hinkley,
Jean-Pierre Huard, Donald R. Haché, Guy
Haché, Jacques E. Haché,
Jean-Pierre Haché, Jacques A. Haché, Jason-Sylvain
Haché, Estate of
Sylva Haché, Gaétan Haché, Rhéal Haché,
Alban Hautcoeur, Fernand Hautcoeur,
Jean-Claude Hautcoeur, Vincent Jones,
Réjean LeBlanc, Christian Lelièvre,
Elphège Lelièvre, Jean-Elie Lelièvre,
Jules Lelièvre, Dassise Mallet, Delphis Mallet,
Francis Mallet, Odile Mallet, Jean-Marc
Marcoux, André Mazerolle, Eddy Mazerolle,
Gilles A. Noël, Lévis Noël, Serge Noël,
Onésime Noël, Nicolas Noël, Martin Noël,
Raymond Noël, Francis Parisé, Domitien
Paulin, Sylvain Paulin, Claude Poirier,
Les Pêcheries Serge-Luc Inc., Pêcheries
Ray-L. Inc., Pêcheries FACEP Inc.,
Les Pêcheries Denise Quinn Syvrais Inc.,
Pêcheries François Inc., Pêcheries J.V.L. Ltée.,
Pêcheries Jimmy L. Ltée., Bell Bay
Products Ltd., Roger Pinel,
Estate of Jean-Pierre Robichaud, Adrien
Roussel, Jean-Camille Roussel,
Mathias Roussel, Steven Roussy, Mario
Savoie, Jean-Marc Sweeney, Michel Turbide,
Réal Turbide, Donat Vienneau, Fernand
Vienneau, Livain Vienneau, Rhéal Vienneau
Respondents
REASONS FOR JUDGMENT
NADON J.A.
[1]
This
is an appeal from a decision by Justice Harrington of the Federal Court dated
May 16, 2008, 2008 FC 616, who allowed, in part, the respondents’
application for judicial review. More specifically, the judge declared that the
Minister of Fisheries and Oceans (the “Minister”) had (a) in 2006, illegally
used or sold a fishing licence for 1000 metric tons of snow crab to
finance departmental research activities; and (b) was illegally holding the proceeds
of the 2006 sale of 1000 metric tons of snow crab.
[2]
The
appeal of the Attorney General of Canada (the “Attorney General” or the “appellant”)
concerns only the second declaration made by Justice Harrington. According to
the Attorney General, Justice Harrington erred in law in making this
declaration.
[3]
The
following summary of facts will assist in understanding the issue before us.
[4]
On
March 30, 2006, the Minister approved the 2006 Snow Crab Management Plan (“Management
Plan”) for certain crab fishing areas in the in the southern Gulf of St.
Lawrence, according to which, among other things, the total allowable catch (“TAC”) of snow
crab was set at 25 869 metric tons if certain enhanced management
activities (“management activities”) were put in place. If these activities did
not proceed, the TAC would be set at 20 862 metric tons.
[5]
On
the same day that he approved the details of the Management Plan, the Minister,
through a public news release, announced the details of the 2006 Management
Plan. This plan, as announced in the news release, was as follows:
March 30, 2006
Moncton - The
Honourable Loyola Hearn, Minister of Fisheries and Oceans (DFO), today
announced the 2006 Snow Crab Management Plan for Snow Crab Fishing Areas (CFAs)
12, 18, 25, and 26, in the southern Gulf of St. Lawrence.
The total
allowable catch (TAC) will be set at 25,869 tonnes (t) if enhanced management
activities are in place. “I am aware that industry was looking for a
higher level of TAC. However, I believe it is important to apply a
prudent approach, as the biomass is currently decreasing and a more cautious
approach is likely in 2007,” stated the Minister.
The
Department is presently reviewing proposals received for enhanced management
activities. If these activities do not proceed, the TAC will be set at 20,862 t. The
Department’s review will be completed in the coming days and further
information will be provided to industry.
Further to
the provision of new “permanent” access to this fishery and the stabilisation
of the levels until 2009, the available TAC is allocated
as follows: First Nations receive 15.816%; the traditional fleets receive
65.182%; CFA18 fishers receive 4.002% and new access receives 15%. The
distribution of the TAC takes into account a permanent solution to the quota
shortfall required for First Nations and financial assistance of $37.4M to the
traditional fleets. When added to the voluntary licence retirement programs,
traditional fishers have received payments of over $55 million for quota
provided to First Nations under the Marshall Response Initiative.
The
management measures from 2005 will be rolled over in 2006. They include
dockside monitoring, 30% at-sea observer coverage, Vessel Monitoring System
(VMS), and the Irving Whale exclusion zone. The implementation of the
comprehensive soft shell crab protocol will be in place if enhanced management
activities proceed. The requests from industry for changes to the management
measures will be discussed in the context of a future multi-year plan.
The
Department will turn its attention to consultations with stakeholders, after
the fishery, on the development of a long-term management strategy with a
preference for establishing a co-management approach with all of the key
harvester groups. Discussions could include such issues as the conduct of joint
scientific research, the concept of TAC decision rules,
development of a strategy for managing the fishery which takes into account
fishing effort in the context of a decreasing biomass and funding for enhanced
management of the fishery.
The opening
date will be set by DFO taking into consideration operational requirements and
a recommendation from the industry-led Ice Committee. The last day of fishing
will be July 15, 2006.
[Emphasis
added]
[6]
Because
of the signing on April 5, 2006, of a “Joint Project Agreement” (the “JPA”
or the “Agreement”) between the Minister and the Association des Pêcheurs de
Poissons de Fond Acadiens (the “APPFA”), the Management Plan condition that a
management activity be put in place in order to set the TAC at 25 869
tons was met. Under the Agreement, the purpose of which was to enhance the
management of the snow crab fishery, the APPFA had to implement various
projects and pay the Minister $1 500 000, which he was to spend on activities
provided for by the Agreement, namely, the controlling and monitoring of soft
shell crab, a scientific trawl survey, scientific analysis and increased
monitoring of the catch. In exchange for the payment made by the APPFA, the
APPFA was to be issued a fishing licence with an allocation of 1000 metric tons
of snow crab.
[7]
On
June 23, 2006, after the APPFA had paid the money to the Minister, this Court
disallowed a similar arrangement for the 2003 fishing season. In Larocque v.
Canada (Minister of Fisheries and Oceans), 2006 FCA 237, Justice Décary cited
the Supreme Court of Canada’s words at paragraph 37 of its reasons in Comeau’s
Sea Foods Ltd. v. Canada (Minister of Fisheries and Oceans), [1997] 1
S.C.R. 12, when he stated at paragraph 13 that “Canada’s fisheries are a ‘common
property resource’, belonging to all the people of Canada” and that “it is the
Minister’s duty to manage, conserve and develop the fishery on behalf of
Canadians in the public interest”. In addition, Justice Décary wrote the
following at paragraph 13 of his reasons:
[13] . . . They [Canada’s
fisheries] do not belong to the Minister, any more than does their sale price.
Also, when the Minister decided to pay a contracting party with the proceeds of
sale of the snow crab, he was paying with assets that did not belong to him.
Paying with the assets of a third party is, to say the very least, an
extraordinary act that the Administration could not perform unless so
authorized by an act or by duly enacted regulations. Such an act, on its very
face, is like an expropriation of fishery resources or a tax on them for the
purposes of funding the Crown’s undertakings.
[8]
This led Justice Décary to conclude as follows at
paragraphs 26 and 27 of his reasons:
[26] In
short, I determined that the Minister financed his scientific research program
without first appropriating the funds necessary and by misappropriating, for
all intents and purposes, resources that do not belong to him. He confused
public funds and the public domain. Without appropriating public funds he
appropriated public domain. This cannot be.
[27] I
would allow the appeal, I would set aside the judgment by the Federal Court, I
would allow the application for a declaratory order and I would declare that
the Minister of Fisheries and Oceans did not have the power to finance his
Department’s scientific research by issuing licences to fish and sell snow
crab. I would award costs to the appellant in this Court and in Federal Court.
[9]
When
this Court’s decision in Larocque, above, was made on June 23, 2006, the
Minister had spent $477 326 of the $1 500 000 received from the APPFA,
with a remaining balance of $1 022 674. The Department completed the
remaining activities under the Agreement by funding them from the departmental
operating budget.
[10]
Following
Larocque, above, the applicants contacted the Department, arguing that
the amount received from the APPFA in exchange for an allocation of 1000 metric
tons of snow crab did not belong to him, and that it consequently should be
distributed among the licence-holders for the 2006 fishing season, given the reduction
in their share of the TAC.
[11]
The
respondents filed an application for judicial review in the Federal Court, seeking
(a) declarations that the Minister illegally used or sold 1000 metric tons of
snow crab to finance departmental research activities and that he was illegally
holding the proceeds of the sale of snow crab; (b) a writ of mandamus
forcing the Minister to return the illegally held money to the applicants in
proportion to the percentage of the TAC allocated to each
applicant according to the distribution formula set out in the Management Plan
announced on March 30, 2006; and (c) if necessary, an order for an extension of
time.
[12]
On
May 16,
2008,
Justice Harrington allowed their application for judicial review in part.
Decision of the
Federal Court
[13]
First,
Justice Harrington granted the respondent an extension of time for filing their
application for judicial review. Second, noting that, in light of Larocque,
above, the Minister rightly admitted that his 2006 decision to sell a fishing
licence for 1000 metric tons of snow crab was illegal, the judge made two
declarations sought by the respondent, namely, that the Minister had illegally
used or sold a fishing licence for 1000 metric tons of snow crab to finance
departmental research activities (the “first declaration”), and that the
Minister was illegally holding the proceeds of the 2006 sale of 1000 metric
tons of snow crab (the “second declaration”). At paragraphs 31 and 32 of
his reasons, the judge wrote as follows:
[31]
In this case, I am prepared to declare that the Minister illegally used or sold
1000 metric tons of snow crab to finance departmental research activities and
is illegally holding the proceeds of the 2006 sale.
[32]
The significance of such a declaration, stating that the Minister acted in
excess of his authority, should not be underestimated. We can safely assume
that once a statute, regulation or particular course of conduct has been
declared ultra vires, the Minister will respect the state of law and
that further proceedings such as applications for judicial review will not be
necessary.
[14]
Lastly,
the judge refused to issue the writ of mandamus sought by the
respondents, arguing as follows at paragraph 30 of his reasons:
It follows
that the writ of mandamus is not applicable in this case. In any case, I
am not satisfied that the criteria for ordering a writ of mandamus have
been met (Apotex Inc. v. Canada (Attorney General), [1994] 1 FC 742,
[1993] F.C.J. No. 1098 at paragraph 42; aff’d [1994] 3 S.C.R. 1100). One of the
criteria is that the applicant [sic] have no other recourse. In my
opinion, such recourse exists, namely, a tort action seeking damages; indeed,
many of the applicants have commenced such an action (Anglehart,
T-2171-07).
Parties’
submissions
Appellant’s submissions
[15]
The
appellant is only contesting Justice Harrington’s second declaration, namely
that the Minister was illegally holding the proceeds of the sale of 1000 metric
tons of snow crab. The appellant argues that the judge exceeded his jurisdiction
in making this declaration.
[16]
The
appellant concedes that the Minister acted beyond his powers by authorizing the
use of snow crab resources to fund his department’s additional research and
management activities. However, it submits that it never conceded that the
agreement the Minister had concluded with the APPFA was invalid. In the
appellant’s opinion, the judge erred in holding that the invalidity of the Minister’s
decision to use these resources to finance his activities meant that the Agreement
was automatically invalid.
[17]
The
appellant submits that the rights resulting from a contract must be
demonstrated in a proceeding under section 17 of the Federal Courts Act
and not as part of a judicial review instituted under section 18.1. The
appellant also argues that the respondents are not parties to the agreement
between the APPFA and the Minister.
[18]
Moreover,
the appellant argues that the Minister cannot illegally hold the money received
from the APPFA if he has spent that money as part of his contractual
obligations. The appellant is therefore asking this Court to set aside the
judge’s declaration that the Minister was illegally holding the proceeds of the
2006 sale of 1000 metric tons of snow crab, and to order the respondents
to pay costs, at trial and on appeal.
[19]
The
respondents argue that the appellant’s interpretation of the judgement is
wrong, since Justice Harrington held that he could not rule on the issue as to
who was entitled to the money received by the Minister. Contrary to the
appellant’s arguments, the respondents submit that the judgement does not rule
on the rights of the parties to a contract, that is, the rights arising from
the agreement concluded between the Minister and the APPFA. According to the
respondents, whether or not there was a contract does not change the nature of
the debate: the money received by the Minister was collected as payment for the
illegal sale of fishery resources, and the Minister did not have the legal
authority to collect such a sum.
[20]
Moreover,
the respondents argue that the judge’s declaration was consistent with this
Court’s decision in Larocque, above.
Issue
[21]
The
sole issue to be determined is whether Justice Harrington erred in declaring
that the Minister was illegally holding the proceeds of the 2006 sale of 1000 metric tons of snow crab. More specifically, could the judge
determine the Minister’s rights arising from the agreement entered into with
the APPFA?
Analysis
Standard of review
[22]
Relying
on the decision of the Supreme Court of Canada in Housen v. Nikolaisen, [2002] 2 S.C.R. 235, the appellant submits
that the appropriate standard of review in this case is correctness, since the
judge’s decision to declare that the Minister was illegally holding a sum of
money is a question of mixed fact and law, which
requires the application of the law to all the facts. The appellant argues that
the standard of correctness applies here because the error was made in the
application of the law to a correctly decided set of facts and the question of
law is easily extricated.
[23]
The
respondents have not submitted any arguments on the applicable standard of
review.
[24]
In
my opinion, the issue is a pure question of law: despite this Court’s decision
in Larocque, above, according to which the Minister could not finance
his Department’s scientific research by issuing a licence to fish and sell snow
crab, could the judge determine whether the Minister was illegally holding the
sum of $1 500 000, which the APPFA had paid him under the agreement?
[25]
The
following excerpts from the reasons for the decision by Justice Harrington
explain why he declared that the Minister was illegally holding
1000 metric tons of snow crab.
[21]
As the illegality of the Minister’s action is no longer an issue, a decision
must be made regarding what is to be done with the amount of $1,500,000. There
are three possibilities: a) that the money remain in the hands of the
Department; b) that all or part of the money be returned to the APPFA; or c)
that the money be distributed proportionally among those who had their
allocations reduced to enable the Minister to issue a fishing licence to the
APPFA for 1000 metric tons of snow crab.
[22]
I am of the view that the applicants who are part of the traditional midshore
fleet (Quebec and New Brunswick) have successfully made their case. The
Minister publicly announced that they would receive 65.182% of the TAC, which they
received. However, the TAC was reduced by about 4% to accommodate the
contract signed with the APPFA.
. . .
[24]
. . . In this case, the applicants did not pay directly, but it is
arguable that they paid indirectly through the reduction of their allocations.
[25]
An examination of the applicants’ record was necessary because it is one of the
criteria to be considered in determining whether the Court should grant the
extension. However, it would be inappropriate for me to make any comment beyond
my finding that they have made their case, since I would be getting into the
area of damages, and this Court lacks jurisdiction to order such a remedy in
the context of an application for judicial review.
[26]
The Minister did not specifically argue that the Crown should retain the fees
charged for the fishing licence. However, the logical conclusion of the
argument that the applicants had not applied within the time limit is that the
amount must remain in the hands of the Crown. Based on Larocque, supra,
I do not hesitate to find that the Crown has no right to an amount belonging to
a third party. It is analogous to the concept of escheat.
[27]
Nor did the Minister argue that the amount should be returned to the APPFA. He
expressed concern about the possibility that the APPFA might begin legal
proceedings. The APPFA was not a party in these proceedings, so it would be
inappropriate to comment on any rights it may have. However, it should be noted
that the Minster may “refer any question or issue of law, of jurisdiction or of
practice and procedure to the Federal Court” under section 18.3 of the Federal
Courts Act and rules 320 and following of the Federal Courts Rules
regarding references from a federal board, commission or other tribunal.
[Emphasis added]
[26]
The first observation that must be made about the judge’s comments
is that,
as appears from the excerpts above, the judge was of
the opinion that the share of the TAC
that the respondents were to receive for the 2006 season was reduced by about
4% because of the agreement signed between the Minister and the APPFA.
[27]
Based on the evidence, there can be no doubt that the judge erred
in this regard. One has only to recall that the
TAC had to be set at 20 862 metric tons unless there were management
activities, in which case the TAC was to be
set at 25 869 tons. Consequently, had it not been for
the agreement with the APPFA, the respondents’ 65.182% share of the TAC would
have resulted in one or more fishing licences for 13 598.3 metric tons. Moreover, because of the agreement with the APPFA, the
respondents’ 65.182% share of the TAC
was calculated on a TAC of 25 869 tons less the 1000 tons allocated to the
APPFA.
As the Attorney General points out at paragraph 11 of
his factum, [translation] “Ironically,
the respondents thus benefited from the 1000 ton licence being issued to the
APPFA, since they were able to catch more crab and, as a result, make more
money”.
[28]
In any event, it is important to emphasize that the respondents
were not entitled to a specific percentage of the TAC. It is now well accepted that the Minister has absolute
discretion regarding the issuance of fishing licences (see Comeau’s
Sea Foods Ltd. v. Canada
(Minister of Fisheries and Oceans), [1997] 1 S.C.R. 12,
paragraphs 36, 37, 40 and 49).
[29]
Another observation about Justice Harrington’s comments concerns
our decision in Larocque, above. At paragraph 26 of his reasons, Justice Harrington writes, relying on
this decision, “that the Crown has no right to an amount belonging to a third
party”. I understand from Justice Harrington’s
remarks that he was of the opinion that the Minister could not validly claim
the payment of the sum of $1 500 000 because “a third party” was entitled to
receive this amount. In other words, according
to the judge, because the Minister did not have the power to use fishery
resources to finance some of his department’s management and research
activities, it follows that the Minister was illegally holding the sum of $1
500 000 received from the APPFA since he was not entitled to claim it.
[30]
In my view, there is no doubt that our decision in Larocque,
above, in no way supports Justice Harrington’s second declaration. The only conclusion reached by this Court in Larocque,
above, is that the Minister cannot finance his Department’s research programs
by issuing fishing licences and selling fishery resources. With respect, I see nothing in Larocque, above, that
could allow the judge to declare that the Minister was illegally holding the
sums he received from the APPFA.
[31]
I am of the opinion that Justice Harrington’s second declaration
is not one that he could make on an application for judicial review filed under
section 18.1 of the Federal Courts Act (the “Act”). In fact, the second declaration concerns the Minister’s
contractual rights arising from the agreement with the APPFA. A close reading of paragraphs 21 and 26 of the judge’s
reasons satisfies me that when he made his second declaration, the judge was
mindful of not only the Minister’s contractual rights, but also those of the
APPFA and any that the respondents might have, considering that the TAC of 25
869 tons (from which their percentage was to be calculated) was reduced by 4%
because of a permit for 1000 tons issued to the APPFA.
[32]
Even though the judge ultimately avoided commenting on the rights
of the APPFA and the respondents regarding the sum paid to the Minister by the
APPFA, he undoubtedly ruled on the Minister’s rights. According to the judge, the Minister was illegally holding the sum received
from the APPFA, and, consequently, this sum had to be returned to the APPFA or
the respondents.
[33]
As I have just said, it is clear that the judge took for granted
that the Minister was illegally holding the sum received from the APPFA because
he could not fund his department’s scientific research from the sale of snow
crab. This explains why, at paragraph 26 of his
reasons, the judge stated that his conclusion relied on this Court’s decision
in Larocque,
above.
[34]
At paragraph 27 of his reasons, the judge states that given the
fact that the APPFA was not a party in the case before him, he could not
comment on its rights, which are necessarily contractual in my opinion,
resulting from the agreement with the Minister.
[35]
Concerning the respondents’ rights, the judge writes at paragraph
22 of his reasons that the respondents “have successfully made their case”
because of the reduced quantity of snow crab allocated to them. At paragraph 25 of his reasons, the judge reiterates his
view that the respondents “have made their case”, adding, however, that he
cannot go beyond this observation since the remedy available to the respondents
is an action in damages over which he lacks jurisdiction in the context of the
proceedings before him.
[36]
Yet the judge commented without hesitation on the Minister’s
rights to keep the sums received from the APPFA. At paragraph 26 of his
reasons, he stated that “the Crown has no right to an amount belonging to a
third party”.
In other words, since the Minister received $1 500
000 from the APPFA because of an agreement the purpose of which was to finance
his department’s scientific research programs, a process found to be invalid by
this Court in Larocque, above, it follows, according to the judge, that
the Minister was not entitled to keep that money.
[37]
With respect, the judge could not reach such a conclusion in the
context of an application for judicial review filed under section 18.1 of the
Act.
In doing so, the judge determined the Minister’s
contractual rights arising from the agreement with the APPFA. In my view, the judge erred in law in making his second
declaration.
[38]
Section 17 of the Act gives the Federal Court concurrent
jurisdiction in any action against the Crown concerning any “contract entered into
by or on behalf of the Crown”. Consequently, if the
respondents wish to claim all or part of the amount paid to the Minister by the
APPFA, they must institute proceedings against the Crown under section 17 of
the Act. In such proceedings, the Court will
have to consider the rights of the Minister, the APPFA, the respondents and any
other person who believes that he or she is entitled to receive, in whole or in
part, the sum paid to the Minister by the APPFA. In addition, the
Court will have to analyse the validity of the contract between the Minister
and the APPFA and the effect of this contract on third parties alleged to be
adversely affected by the transaction.
Disposition
[39]
Consequently,
I would allow the appeal, set aside Justice Harrington’s second
declaration that the Minister was illegally holding the proceeds of the 2006 sale
of 1000 metric tons of snow crab, and order the respondents to pay costs,
at trial and on appeal.
“M. Nadon”
“I agree.
J.D. Denis Pelletier J.A.”
I agree.
Johanne Trudel J.A.”
Certified true
translation
Johanna Kratz
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