Docket: A-304-15
Citation: 2016 FCA 288
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CORAM:
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PELLETIER J.A.
STRATAS J.A.
WEBB J.A.
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BETWEEN:
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BRIAN GIROUX,
WILLIAM HATT, WINFRED RISSER, JACK B. ALLEN, TOGETHER AS THE WEST 65 30
SCALLOP QUOTA GROUP ASSOCIATION
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Appellants
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and
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THE ATTORNEY
GENERAL OF CANADA
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Respondent
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REASONS FOR
JUDGMENT
PELLETIER J.A.
[1]
The appellants in this matter are Messrs. Brian
Giroux, William Hatt, Winfred Risser, and Jack B. Allen who, together, form the
West 65 30 Scallop Quota Group Association (the West 65 30 Scallop Fishers).
They traditionally fish for scallop in Scallop Fishing Area (SFA) 29 except for
the western portion of that area (West 29) which was closed to scallop fishing.
Over time, West 29 was opened to scallop fishing. Initially the scallop fishers
from SFA 28, which includes the Bay of Fundy (the Full Bay Fishers), were
authorized to fish for scallops intermittently in West 29. Subsequently, the
West 65 30 Scallop Fishers were also authorized to fish in these waters. There
is rivalry between these two groups of fishers, one of the consequences of
which has been the bringing of the application which gives rise to this appeal.
[2]
The West 65 30 Scallop Fishers brought an
application for judicial review of one or more fishing licenses issued by the
Minister of Fisheries and Oceans (the Minister) to one or more of the Full Bay
Fishers, alleging that the Minister had exceeded his jurisdiction by extending,
using licence conditions, the waters in which the Full Bay Fishers could take
scallops. As I understand it, the argument was that, having authorized the Full
Bay Fishers to fish in SFA 28, the Minister could not extend the geographical
scope of the licenses into West 29 by way of conditions attached to the SFA 28
licenses.
[3]
In reasons reported at 2015 FC 683, the Federal
Court dismissed the West 65 30 Scallop Fishers’ application. It found that “the licenses issued to the Full Bay Fleet are for SFA 28 and
SFA 29 West. The licence conditions contained within the licences simply state
the geographic boundaries within each SFA where the Full Bay Fleet may fish”:
see para. 11.
[4]
The West 65 30 Scallop Fishers now appeal to
this Court. Before us, their argument has evolved somewhat. They allege that
the form of licence issued to the Full Bay Fishers (Ex. D to the Affidavit of
Brian Giroux, sworn April 30, 2014) (the Full Bay Licence) is defective in that
it only contains conditions and does not include words which grant permission
to fish at all, let alone in West 29. This argument is based upon a comparison
between the Full Bay licence and the form of licence attached to the Affidavit
of Stefan Leslie, a fisheries official, which contains the following words:
Subject to any variation orders… and subject
to the conditions in this licence condition fishing is only authorized in that
portion of Scallop Fishing Area 29…
[5]
Counsel for the West 65 30 Scallop Fishers
argued that the effect of the absence of these words in the Full Bay Licenses
is akin to the absence of a charging provision in a mortgage. A document which
is called a mortgage and is intended to be a mortgage nonetheless has no effect
as a mortgage because the owner has not charged his interest in the land. In
the case of fishing licences, a document which is called a fishing licence and
is intended to be a fishing licence is ineffective because it does not in
express terms authorize the fishers to do that which is otherwise prohibited,
namely fishing for scallops.
[6]
I am unable to accept this argument. At the very
top of the Full Bay Fishers’ licence, under the heading Registration(s) and/or
Fishing Licence(s), the following words appear:
This document authorizes the registration
card holder and/or licence holder to engage in fishing and related activities
on the Atlantic Coast of Canada subject to the provisions of the Fisheries Act
and Regulations made thereunder.
[7]
Then, opposite the licensee’s number, and the
species for which the licence is granted, there is a heading entitled Areas,
below which are listed the following areas: 28A, 28B, 28C, 28D, 29A, 29B, 29C,
29D and 29E. It is common ground that West 29 is among the listed areas. Under
the heading Fishing Seasons and Areas, at para. 2(B), the following appears:
Subject to 2(A) and 2(C), and Item 17
fishing for sea scallops is authorized only in those portions of Scallop
Fishing Area 29 as defined in the Atlantic Fishery regulations…
[8]
Given these clear terms, I conclude that the
Full Bay licence which was appended to the Affidavit of Mr. Giroux contains all
the words necessary to authorize a fisher to carry on the activity of scallop
fishing in the areas and during the times permitted by the licence or as a
result of any applicable regulation. There is no formal defect which, assuming
for the sake of argument that the mortgage analogy is correct, would render
licences issued in that form invalid.
[9]
For these reasons, I would dismiss this appeal
with costs.
"J.D. Denis Pelletier"
“I agree
David Stratas
J.A.”
“I agree
Wyman W. Webb J.A.”
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