Date: 20090811
Docket: A-124-08
Citation: 2009 FCA
242
CORAM: NADON J.A.
BLAIS J.A.
PELLETIER J.A.
BETWEEN:
HER
MAJESTY THE QUEEN
Appellant
and
ROBERT ARSENAULT, JOSEPH AYLWARD, WAYNE AYLWARD,
JAMES
BUOTE, RICHARD BLANCHARD, EXECUTOR OF THE
ESTATE OF
MICHAEL DEAGLE, BERNARD DIXON, CLIFFORD
DOUCETTE,
KENNETH FRASER, TERRANCE GALLANT, DEVIN
GAUDET, PETER
GAUDET, RODNEY GAUDET, TAYLOR GAUDET,
CASEY GAVIN, JAMIE
GAVIN, SIDNEY GAVIN, DONALD HARPER,
CARTER HUTT, TERRY
LLEWELLYN, IVAN MACDONALD, LANCE MACDONALD,
WAYNE
MACINTYRE, DAVID MCISAAC, GORDON MACLEOD,
DONALD
MAYHEW,
AUSTIN O’MEARA AND BOYD VUOZZO
Respondents
Heard at Charlottetown, Prince Edward Island, on June 10,
2009.
Judgment delivered at Ottawa,
Ontario, on August
11, 2009.
REASONS FOR JUDGMENT BY: PELLETIER
J.A.
CONCURRED
IN BY: NADON
J.A.
BLAIS
J.A.
Date: 20090811
Docket: A-124-08
Citation: 2009 FCA 242
CORAM: NADON
J.A.
BLAIS J.A.
PELLETIER
J.A.
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
and
ROBERT ARSENAULT, JOSEPH AYLWARD, WAYNE AYLWARD,
JAMES
BUOTE, RICHARD BLANCHARD, EXECUTOR OF THE
ESTATE OF
MICHAEL DEAGLE, BERNARD DIXON, CLIFFORD
DOUCETTE,
KENNETH FRASER, TERRANCE GALLANT, DEVIN
GAUDET, PETER
GAUDET, RODNEY GAUDET, TAYLOR GAUDET,
CASEY GAVIN, JAMIE
GAVIN, SIDNEY GAVIN, DONALD HARPER,
CARTER HUTT, TERRY
LLEWELLYN, IVAN MACDONALD, LANCE
MACDONALD, WAYNE
MACINTYRE, DAVID MCISAAC, GORDON MACLEOD,
DONALD
MAYHEW,
AUSTIN O’MEARA AND BOYD VUOZZO
Respondents
REASONS FOR JUDGMENT
PELLETIER J.A.
[1]
This is an
appeal from the decision of Mr. Justice Martineau of the Federal Court (the Motions
Judge), reported as Arsenault v. Canada, 2008 FC 299, 330 F.T.R. 8, in
which the Motions Judge set aside a decision of Prothonotary Morneau. The issue
in the appeal is the application of this Court's decision in Grenier v.
Canada, 2005 FCA 348, [2006] 2 F.C.R. 287 (Grenier), to the facts
pleaded in the respondents' statement of claim and, in particular, whether the
claim should be stayed until the respondents have challenged certain decisions
of the Minister of Fisheries and Oceans (the Minister) by way of judicial
review.
[2]
The
respondents are fishermen and residents of Prince Edward Island. Their allegations against
the Minister are concisely set out in the Crown's memorandum of fact and law as
follows:
4. According to the statement of
claim, the Respondents allege that between 1990 and 2002 they entered into a
series of agreements with the Minister (the Individual Quota Agreements) that
provided them each with a certain quota out of the total allowable catch ("TAC")
for Prince
Edward Island
for snow crab fishing.
5. In addition to the
Individual Quota Agreements, the Respondents also claim to have entered into an
agreement with the Minister pursuant to which First Nations would be brought
into the fishery through a voluntary licence buy-back and that no increase in
the number of fishing licenses or in the actual fishing effort would result
from the integration of the aboriginal fishery (the "Marshall Agreement").
6. The Respondents claim
that both the Individual Quota Agreements and the Marshall Agreement contained
implicit promises that the appellant would compensate them for any breach of
the agreements.
7. The Respondents
claim that as a result of various measures taken by the Minister in May 2003,
which were continued or repeated from 2004 to 2006, the agreements were broken.
They claim that the Minister reallocated a portion of the snow crab quota, to
which they were entitled under the Agreements, for other purposes in each of
these years.
[3]
The
respondents do not contest this statement of the facts.
[4]
The
respondents claim that they are entitled to be compensated for the loss of
quota, either as damages for breach of contract, or, if no enforceable contract
is found, as damages for negligent misrepresentation. In addition, the
respondents raise a number of other potential heads of recovery, but insist
that their claim is first and foremost a claim for compensation from the
Minister in accordance with his contractual undertaking to compensate them for
loss of their share of the Total Allowable Catch (TAC).
[5]
The
respondents do not allege that the Minister's reallocation of the TAC was
unauthorized or otherwise unlawful. They agree that the Minister was entitled
to exercise his discretion under the Fisheries Act, R.S.C. 1985, c. F-14,
as he did, but say that if the exercise of that discretion caused them a loss,
then they were entitled to be compensated in accordance with their agreement
with the Minister.
[6]
In the
Crown's view, the respondents' claim is, in essence, an attack upon the
validity of the various decisions that the respondents claim have caused them a
loss. As a result, the Crown brought a motion seeking to have the respondents'
claim struck, or, in the alternative, for an order staying the respondents'
claim until such time as the validity of the ministerial orders had been
determined in an application for judicial review. The Prothonotary ordered that
all those portions of the respondents' pleadings that assert their claim in
contract were to be struck out on the ground that they disclosed no reasonable
cause of action since the Minister could not, by means of contract, fetter his
discretion to award fishing quota. As for the balance of the claims, the
Prothonotary ordered that they be stayed and gave the respondents time to file
a motion seeking an extension of time to commence an application for judicial
review.
[7]
The
Prothonotary's decision was appealed to the Federal Court. The Motions Judge
set aside the Prothonotary's decision striking the portions of the pleadings
asserting a claim in contract, on the basis that this was a complex issue of
fact and law which should not be resolved on a motion to strike. With respect
to the other claims asserted by the respondents, the Motions Judge was not
prepared to find that it was plain and obvious that those claims would fail.
[8]
The Crown
appeals from the Motions Judge's decision on two grounds. The first is that he
erred in applying the "plain and obvious" test articulated in Hunt
v. Carey Canada Inc., [1990] 2 S.C.R. 959, as this test is not appropriate
when the issue is whether to strike a claim for want of jurisdiction. The
second is that, notwithstanding the respondents' protestations to the contrary,
their claim is a collateral attack on the Minister's licensing decisions whose
legality must first be established by means of an application for judicial
review.
[9]
The
Crown's argument with respect to the "plain and obvious" test is
simply that the Court either has jurisdiction or it does not, therefore the
Court must make a positive finding on that issue rather than relying on the
"plain and obvious" test. The Crown says that in order to do so, the
Court is entitled to look past the causes of action pleaded by the respondents
and to determine the "essence" or the "substance" of the
respondents' claim. In point of fact, the two arguments advanced by the Crown
are but two aspects of the same argument, namely that when one looks past the
words of the respondents' claims to their true nature, the respondents are mounting
a collateral attack on the Minister's decisions, as a result of which the Court
is in a position to make a positive finding on the jurisdictional issue.
[10]
In
my view, for the purposes of Rule 221(1) of the Federal Courts Rules,
SOR/98-106, the moving party must take the opposing party's pleadings as they
find them, and cannot resort to reading into a claim something which is not
there. The Crown cannot, by its construction of the respondents' claim, make it
say something which it does not say.
[11]
The
Crown's preoccupation with jurisdiction, at this preliminary stage, is, it
seems to me, misplaced. This Court's decision in Grenier makes it clear
that a party cannot attack the legality of an administrative decision except by
means of an application for judicial review. A party derives no advantage by
commencing an action based on the illegality of an administrative decision
without first having had the decision declared illegal because, eventually, Grenier
will have to be dealt with. No one has an interest in spending thousands of
dollars on an action which cannot succeed. If the pleadings do not raise
illegality, the Court should not strive to find it for the purposes of forcing
litigants into a judicial review application which is inconsistent with the position
they have taken in their action.
[12]
Since
the respondents accept that the Minister's decisions were validly made pursuant
to the Fisheries Act, the action should be allowed to proceed on that
basis. Should it become apparent later that the respondents must rely upon the
illegality of the Minister's decisions in order to succeed, the issue of the
application of Grenier can be dealt with at that time.
[13]
I
would dismiss the appeal with costs.
"J.D.
Denis Pelletier"
“I agree
M.
Nadon J.A.”
“I agree
Pierre
Blais J.A.”
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