Dockets: T-872-23
T-891-23
Citation: 2025 FC 566
Ottawa, Ontario, March 28, 2025
PRESENT: The Honourable Mr. Justice Favel
Docket: T-872-23 |
BETWEEN: |
SHELBURNE ELVER LIMITED |
Applicant |
and |
ATTORNEY GENERAL OF CANADA |
Respondent |
Docket: T-891-23 |
AND BETWEEN: |
SOUTH SHORE TRADING CO. LTD. |
Applicant |
and |
ATTORNEY GENERAL OF CANADA |
Respondent |
JUDGMENT AND REASONS
I. Overview
[1] The Applicants, Shelburne Elver Limited [Shelburne] and South Shore Trading Co. Ltd. [SST], seek judicial review of the March 28, 2023 decision [Decision] of the Minister of Fisheries, Oceans and the Canadian Coast Guard [Minister] to reduce the Individual Quota [IQ] for eight of the nine Maritimes Region elver fishery licence holders during the 2023 season. This is the second consecutive IQ reduction decision by the Minister for the eight licence holders without financial compensation, and the second consecutive set of applications for judicial review.
[2] The first IQ reduction occurred for the 2022 elver fishery season in an April 6, 2022 decision [2022 Decision]. The Applicants, together with Wine Harbour Fisheries Limited [Wine Harbour], sought judicial review of the 2022 Decision. On August 29, 2023, Justice Walker, as she then was, dismissed their applications in a decision reported as Shelburne Elver Limited v His Majesty the King (Minister of Fisheries, Oceans, and the Canadian Coast Guard), 2023 FC 1166 [Shelburne 2023]. Justice Walker found the 2022 Decision to be procedurally fair and reasonable. The Applicants appealed this decision to the Federal Court of Appeal.
[3] In the present matter, each Applicant filed separately for judicial review: Shelburne T-872-23; SST T-891-23 and Wine Harbour T-720-23. The applications were held in abeyance pending the outcome of Shelburne 2023. On February 8, 2024, Associate Judge Steele ordered the consolidation of the proceedings. At the time of the consolidation decision, Wine Harbour had discontinued its application.
[4] At the time of the judicial review hearing for the present matter, the Shelburne 2023 appeal had not yet been determined. However, on November 14, 2024, the Federal Court of Appeal dismissed these appeals in a decision reported as Shelburne Elver Limited v. Canada (Fisheries, Oceans and Coast Guard), 2024 FCA 190 [Shelburne FCA 2024].
[5] In the present matter, the Applicants challenge the Decision claiming their rights to procedural fairness were breached and on the basis that the Decision is unreasonable.
[6] I am allowing the present applications for the reasons set out below. I find the Minister breached the Applicants’ rights to procedural fairness in making the Decision. In light of this finding, there is no need to address the preliminary motion summarized below, nor submissions on the reasonableness of the Decision. This Judgment and Reasons will only address the submissions on procedural fairness.
II. Background
[7] Much of the background in the present matter is similar to the background set out in Shelburne 2023, but some of it bears repeating. Shelburne operates as a 17-member cooperative and has held an elver fishery licence every year since 1998. From 2005 to 2021, the Minister allocated an annual IQ of 1,200 kg to Shelburne. SST has been involved in the American eel fishery since 1984 and has held an elver fishery licence every year for many years. From the late 2000s to 2021, the Minister allocated an annual IQ of 1,200 kg to SST (Shelburne 2023 at paras 18-20).
[8] The Maritimes Regional Commercial Elver Fishery [Elver Fishery], managed by the Department of Fisheries and Oceans, Maritimes Region [DFO], is an “enterprise allocation”
model, “limited entry”
fishery in accordance with the Maritimes Region Commercial Fisheries Licensing Policy (last updated on: June 4, 2021).
[9] The Elver Fishery was described by Justice Walker in Shelburne 2023 as follows:
[9] American eel is a single population born in the Caribbean that makes its way annually to Atlantic Canada in the spring/early summer. The Maritimes Region is home to Canada’s only commercial elver fishery.
[10] The commercial elver fishery is a limited entry fishery for conservation reasons based on a “one-out one-in” principle. Unless the Minister exercises her discretion to increase the number of licences, entrance to the fishery is only possible by replacing an existing licence holder. No new elver licences have been issued since 1998 and no person is authorized to fish for elvers without a valid licence.
[10] The Total Allowable Catch [TAC] for the Elver Fishery has remained at 9,960 kg since 2005. The TAC has been allocated between nine commercial elver licence holders. Eight licence holders have held a seasonal IQ of 1,200 kg, and one licence holder, not a party to this proceeding, has held a seasonal IQ of 360 kg, between 2005 and 2021.
[11] One commercial licence with a seasonal IQ of 1,200 kg, held by the We’koqma’q First Nation [WFN], was issued under Aboriginal Communal Fishing Licences Regulations, SOR/93-332. The remaining eight licences were issued under the Maritime Provinces Fishery Regulations, SOR/93-55.
[12] Since 2009, the landed value of elver has fluctuated. However, since 2012 the price per wet kilogram has consistently remained in the $3000/kg - $5000/kg (USD) range, only dropping below this range in 2014, 2015, and 2020. Shelburne notes that the 2021 and 2022 seasons remained at $5000/kg, while the 2023 season saw a decrease to approximately $3,800/kg.
[13] The backdrop of the Decision involves two competing policy goals of the Ministry: 1) reconciliation; and 2) conservation. The goal of reconciliation includes providing access to First Nations to the Elver Fishery through proposals submitted by the First Nations.
[14] The Minister required IQ to facilitate access to First Nations. With conservation goals limiting the TAC to its consistent 9,960 kg, and the entirety of the TAC already allocated between the current licences, the IQ could only come from the commercial licence holders. In February 2021, the Minister launched an expression of interest with all current licence holders, except WFN. The Minister called for proposals under a “willing buyer-willing seller”
[WBWS] model, whereby each Applicant would voluntarily relinquish a portion of their IQ for financial compensation. Each Applicant submitted their own proposal.
[15] The background, which sets the context for the Decision, and which was addressed in the 2022 Decision, is set forth in paragraphs 23 and 24 of Shelburne 2023. Suffice to say, leading to the 2022 Decision there were numerous meetings, exchanges of correspondence and proposals from commercial licence holders, and internal memoranda to the Minister.
[16] For the purposes of this application, the most salient part of the events addressed in Shelburne 2023 is the 2022 Decision, discussed further below.
[17] None of the parties in the current application disagree with the policy goal to urgently prioritize increased First Nations access to the Elver Fishery. Instead, the Applicants contend that the Minister’s IQ reductions without financial compensation were unreasonable, procedurally unfair, and based on an undisclosed TriNav Report, also discussed below.
[18] In terms of the conservation policy goal, there is a considerable amount of debate. As noted in Justice Walker’s decision, the Committee on the Status of Endangered Wildlife in Canada [COSEWIC] designated American eel as “threatened”
in a 2012 report. As of July 2022, Canada was considering whether to list the species under the Species at Risk Act, SC 2002, c 29 [SARA], however, that designation had not been made as of the date of the Decision. Additionally, the DFO has noted significant unauthorized harvesting that impacted conservation efforts. Accordingly, the TAC has remained at 9,960 kg since 2005.
[19] Additionally, Shelburne submitted a Motion to Compel Disclosure on June 26, 2023, effectively seeking production of the TriNav Report. Shelburne notes this motion has not yet received a determination by this Court. This report was also at issue in Shelburne 2023. Justice Walker ultimately declined to grant the motion to compel since the TriNav Report in full was not before the Minister in her decision, rather, a memorandum containing DFO’s summary of the TriNav Report was before the Minister, upon which the Minister was entitled to rely (Shelburne 2023 at paras 85-88).
III. The Decision
[20] The Decision at issue concerns the Minister’s determination to reduce the IQ of all non-Indigenous commercial licence holders by 13.7% without financial compensation for the 2023 season. The Applicants submit that the 2022 Decision specified engagement with licence holders prior to the 2023 season to explore a long-term approach:
Prior to the 2023 season, the Department will engage with licence holders to explore a longer-term approach to support an increase in Indigenous participation in the commercial elver fishery. This may include a second expression of interest process to obtain proposals from licence holders for a reduction in participation, or exit from the fishery. The Department is committed to a review of the fishery informed through engagement of existing licence holders and First Nations to support the priority for conservation, the ongoing implementation of Aboriginal and treaty rights and the orderly management of fisheries.
[21] A March 3, 2023 memo from DFO reminded the Minister of this statement prior to the Decision:
“They [incumbent licence holders] also expressed that in 2022, the Department said it would engage with them prior to 2023 but that the Department gave them less than two weeks to respond to the proposed approach to the 2023 fishery.”
…
“Although departmental officials may have said they would engage with licence holders well in advance of the 2023 fishing season, and although statements may have been made regarding a “willing-buyer/willing-seller” approach, such statements cannot be permitted to fetter you in your discharge of your statutory functions. The issuance of licences is at your discretion. Although generally licence holders receive a renewal of the licence from year to year, licence holders are not legally entitled to a renewal. Likewise, although licence holders generally receive the same quota from year to year, licence holders are not legally entitled to receive any quota, or any particular amount. Licence holders are not legally entitled to financial compensation for quota reductions.”
[22] The following is a summary of steps taken after the 2022 Decision:
· November 28, 2022 – DFO wrote a memorandum to the Minister seeking approval of the TAC, scope of engagement, and consultations related to the 2023 Elver Fishery;
· January 18, 2023 – DFO wrote a memorandum to the Minister to articulate directions shared at a January 13, 2023 meeting with department officials;
· January 20, 2023 – The Minister concurred with the January 18, 2023 memo, set the TAC at 9,960 kg, and directed monitoring of the Elver Fishery;
· January 26, 2023 – DFO met with licence holders to advise them of the proposed interim approach for the 2023 Elver Fishery season;
· January 27-February 2, 2023 – DFO sent letters to new entrant First Nations and WFN seeking input in the 1200 kg of the 9,960 kg TAC being reallocated to them; DFO also sent letters to potential entrant First Nations who had previously expressed interest, informing them of DFO’s approach and plans for fishery review;
· January 30, 2023 – DFO sent letters to commercial licence holders regarding the proposed approach of quota allocations for the 2023 season;
· February 8, 2023 – DFO received written feedback from the commercial licence holders;
· March 3, 2023 – DFO wrote a memo to the Minister seeking a decision on quota allocations for the 2023 seasons;
· March 17, 2023 – The Minister concurred with DFO recommendations;
· March 22, 2023 – DFO sent emails to commercial licence holders advising TAC for 2023 was set at 9,960 kg and that the quota would be 13.7% less as compared to the 2021 season without financial compensation;
· March 28, 2023 – DFO issued letters confirming the information from the email of March 22, 2023;
[23] The Decision references a meeting on January 26, 2023, a letter from DFO on January 30, 2023, and the Applicants’ February 8, 2023 responses. The Decision also reads (in part):
The Minister has decided for the 2023 season to allocate existing commercial licence holders (not including We’koqma’q First Nation) 13.7 per cent less quota this year as compared to individual allocations issued in 2021, as an interim measure to support an increase in First Nations participation for the 2023 fishing season. For the 2023 season, this decision is not coupled with the provision of any financial arrangement for licence holders. This years’ individual quota allocation is reflected in 2023 conditions of licence (2023 quota allocation of 1035.6 kg) with no other adjustments to access being made, such as changes or reduction of the river fishing locations for the 2023 season. This approach is consistent with the interim management measures taken in the 2022 season.
For 2023, the Minister has set the overall total allowable catch (TAC) for elver at 9,960 kg, which is the same as the 2022 season.
…
As part of the interim approach, DFO is authorizing six Wolastoqey communities and four Kespukwitk communities to fish elver in 2023.
…
Over the course of 2023, and consistent with the Government of Canada’s reconciliation agenda to increase First Nation participation in fisheries, DFO will conduct a review of the elver fishery with a primary objective being the sharing of benefits through enhanced Indigenous participation in the fishery over the longer term. DFO has initiated planning for this review, which will take into account the views of current commercial licence holders.
IV. Issues and Standard of Review
[24] The issues raised by the parties’ submissions were: 1) whether the Decision was reasonable; and 2) whether the Applicants’ rights to procedural fairness were breached. As discussed above, only the issue of procedural fairness will be addressed as it is determinative.
[25] For the issue of procedural fairness, no deference is owed to the Minister (Shelburne FCA 2024 at para 5). Accordingly, the correctness standard applies (Mission Institution v Khela, 2014 SCC 24 at para 79).
V. Preliminary Matter – Disclosure of TriNav Report
[26] As Shelburne noted, the motion to compel disclosure had not been addressed prior to the hearing of this application. The TriNav Report, of importance to the Minister’s decision not to proceed with the WBWS model, was absent from the Certified Tribunal Record. As I have found the Decision breached the Applicants’ rights to procedural fairness, there is no need to address this issue.
VI. Analysis
A. Was the Decision procedurally unfair?
[27] All parties cite the non-exhaustive procedural fairness factors stated in Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paras 21-28, 1999 CanLII 699 (SCC) [“
Baker”
]:
1)the nature of the decision being made and the process followed in making it;
2)the nature of the statutory scheme and the terms of the statute pursuant to which the body operates;
3)the importance of the decision to the individual or individuals affected;
4)the legitimate expectations of the person challenging the decision;
5)The choices of procedure made by the agency itself.
[28] In their initial submissions, the parties made arguments on whether the Decision was an administrative decision or policy decision. These arguments were abandoned in light of Justice Walker’s finding in Shelburne 2023, determining the Decision was administrative in nature (at para 43). This point was unchallenged on appeal (Shelburne FCA 2024). At the hearing, the parties conceded the administrative nature of the Decision and no longer pursued their arguments on this point.
(1) Applicants’ Positions
(a) Shelburne
[29] Shelburne is entitled to a high degree of procedural fairness and relies on Baker factors three to five, namely: 3) importance of the Decision to Shelburne; 4) legitimate expectations; and 5) the choice of procedure. Shelburne’s submissions are summarized as follows:
Importance of the Decision
Direct impact to revenue, livelihood of members and employees;
38 individual employees that will be impacted by revenue reduction;
NovaEel Inc aquatic start-up company, ‘interim approach’ leads to industry unpredictability impacting their ability to gain investors; and,
Delay to Shelburne’s own projects from the financial impact.
Legitimate Expectations
Representations of second round engagement expression of interest through voluntary relinquishment, and more globally through a WBWS model;
Reliance on routine IQ issuance of 1,200kg from 2005-2021;
Significant procedural promises of at least considering a WBWS process; and,
2022 decision classification as an ‘interim approach’.
Choice of Procedure
No meaningful opportunity to respond;
Minister deviated from approach;
Shifts in process from April 6, 2022 - engagement of longer-term solutions in advance of 2023 became a hastily repeated “interim”
approach; and,
Significantly short timeline to respond amounting to tokenism.
[30] In Shelburne 2023 at paragraph 49, Justice Walker found no doubt of the “significant importance”
of the Decision to Shelburne (unchallenged on appeal in Shelburne FCA 2024). The significance of the Decision in the case at bar holds a similar continued significance to the Applicants.
[31] Baker at paragraph 26, describes the doctrine of legitimate expectation, an extension of procedural fairness, as follows:
… As applied in Canada, if a legitimate expectation is found to exist, this will affect the content of the duty of fairness owed to the individual or individuals affected by the decision. If the claimant has a legitimate expectation that a certain procedure will be followed, this procedure will be required by the duty of fairness … Similarly, if a claimant has a legitimate expectation that a certain result will be reached in his or her case, fairness may require more extensive procedural rights than would otherwise be accorded… Nevertheless, the doctrine of legitimate expectations cannot lead to substantive rights outside the procedural domain. This doctrine, as applied in Canada, is based on the principle that the "circumstances" affecting procedural fairness take into account the promises or regular practices of administrative decision-makers, and that it will generally be unfair for them to act in contravention of representations as to procedure, or to backtrack on substantive promises without according significant procedural rights. [citations omitted]
[32] DFO and the Minister engaged in unreasonable delays. The record and testimony of Jacinta Berthier, DFO Maritimes Regional Director, demonstrated that nothing was sent to the Minister by the DFO prior to the November 28, 2022 memo seeking the Minister’s TAC decision and approval on the scope of consultation.
[33] On January 20, 2023, two months prior to the season opening, the Minister provided guidance to DFO, setting the TAC and framing the scope of engagement with licence holders as regarding another “interim approach”
for 2023 in the same fashion as the 2022 season. This repetition is antithetical to an approach characterized as “interim.”
Additionally, the only engagement that occurred with licence holders was the January 26, 2023 meeting and the January 30, 2023 follow-up letter. DFO provided eight calendar days for receipt of the Applicants’ written responses. This timeline was due to DFO once again running out of time. The Applicants were not given a meaningful opportunity to respond to concerns of DFO nor the Minister.
[34] Considering the importance of the Decision to Shelburne, together with the delay in engaging with Shelburne, the Minister’s rushed decision to once again depart from the WBWS model or to even consider if the WBWS model was possible, was procedurally unfair. The assurances made by DFO in the 2022 Decision to “engage with licence holders”
well before the 2023 season to “explore a longer-term approach”
did not occur. As well, the Minister’s March 7, 2023 statements in the Senate debate clearly states that First Nations participation in the fishery will be achieved either through presently available licences or a WBWS approach.
[35] Additionally, the circumstances giving rise to the 2022 Decision, DFO’s preoccupation with competing crises in other fisheries, was not present in the process leading to the Decision. DFO and the Minister simply chose inaction.
[36] The Applicants’ legitimate expectation of meaningful engagement did not occur. Instead of engaging with licence holders in the context of a “longer term approach”
“well in advance”
of the 2023 season, as promised in the 2022 Decision, the “interim”
approach previously used by the DFO in 2022 was replicated for the 2023 season. At best, the Respondent engaged in a tokenistic consultation process.
(b) SST
[37] The Minister and DFO were biased. DFO and the Minister acted in bad faith, motivated by hostility and disregard, based on false assurances, with inadequate consultation.
[38] Baker (at para 46) cites Committee for Justice and Liberty et al. v National Energy Board et al., [1978] 1 S.C.R. 369, 1976 CanLII 2 (SCC), reiterating the test for reasonable apprehension of bias “often endorsed by this court”
:
…the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. . . [T]hat test is “what would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.
[39] Further, where the notes of subordinate officers in the decision-making process constitute the reasons for the decision, and those notes give rise to a reasonable apprehension of bias, the decision itself is tainted (Baker at para 45). In the Decision, the subordinate DFO officers played a leading role in advising the Minister. DFO officials adopted the COSEWIC report despite their awareness of the Applicants’ concerns of bias. The DFO officials’ summaries and advice packages to the Minister adopt the COSEWIC report’s bias and lack of impartiality.
[40] Specifically, the bias contained in the COSEWIC report is evident:
1)An admission by the lead author, in front of witnesses that she would do everything in her power for an up-listing of the species to endangered;
2)The admission remains unrefuted by the Respondent;
3)Comments about “need to rush”
and dismissal of conflicts of interest demonstrate that the author’s lack of impartiality was shared by members of the COSEWIC freshwater committee;
4)COSEWIC’s disregard of its legislative requirement to provide a reason for reconsidering a decision in less than ten years;
5)Lack of ordinary peer review.
[41] The Applicants submit that alleged bias tainted the COSEWIC report findings in several substantial ways:
1)COSEWIC’s illogical/inconsistent Position on Designated Units in both the 2007 COSEWIC finding that eels are a species of Special Concern, and the COSEWIC decision, which “uplisted”
the species to Threatened with no explanation for the change in status;
2)COSEWIC’s refusal to revisit the issue in light of new evidence;
3)COSEWIC engaged in blatant data “cherry picking”
with the direct intention of compelling a desired result;
4)COSEWIC gave no consideration of the vast portion of the American eel range that is unfished and provides new recruits to the entire range every year;
5)COSEWIC’s finding was repudiated by the U.S. Fish and Wildlife Service when it found in 2015 that the American eel was not an endangered species nor likely to become an endangered species within the foreseeable future (Docket No. FWS-HQ-ES-2015-0143);
6)COSEWIC uplisted the species status in five years, without stating its reasons, as required by the SARA.
[42] The bias contained in the COSEWIC report renders it invalid. The Applicants informed DFO about the flaws in the report and its profound impact on the management of the fishery. The COSEWIC report had a material, if not dispositive, impact on the Minister’s decision serving not only as the basis for TAC decisions, but also for lack of compensation for the reduced quota.
[43] The Minister and DFO have no legislative authority nor mandate to base critical quota management decisions on the possibility that the American Eel will be listed under the SARA, supported solely by a dated COSEWIC report. There has never been a recommendation to the Governor in Council to list the American eel as endangered. Only the Governor in Council, on the recommendation of the Minister of the Environment, can list the American eel under the SARA (at s. 27).
[44] Ms. Berthier testified she gave “significant”
weight to the COSEWIC report findings in advising the Minister, and many officials have personally stated to the Applicants that it was the sole basis for the TAC decision. Further, the impact of the biased report on the Minister’s understanding is evident from her public statement on April 14, 2023, that the American eel is an endangered species.
[45] DFO provided several false, misleading, and incomplete statements as advice to the Minister, which amount to arbitrary decisions used to fund the Minister’s agenda of reconciliation by relying on considerations that are irrelevant, capricious, or foreign to the purpose of the statute. As in Anglehart v Canada, 2016 FC 1159, upheld by the FCA on appeal Anglehart v Canada, 2018 FCA 115 at para 73 [Anglehart]:
[73] The Federal Court Judge acknowledged that even though the Minister has full discretion to set the annual TAC, the TAC cannot be set arbitrarily (Comeau’s Sea Foods and Carpenter Fishing). The evidence, including discussions between DFO officials, supports the Federal Court judge’s central findings that the reduction of the TAC was intended to serve “as a bargaining tool to force traditional crabbers to enter into a joint project agreement and to agree to contribute up to $1.7 million to fund DFO’s activities” (reasons of the Federal Court Judge, at paragraph 240). Moreover, the Federal Court Judge specified in her reasons that on this issue, the Minister “was also sufficiently candid so as not to deny this evidence” (reasons of the Federal Court Judge, at paragraph 225). With regard to the considerations of resource protection that apparently guided the Minister’s decision, the evidence indicates that they were limited to “attempts to find an explanation ex post facto” and the Crown presented no evidence that could contradict the finding that the Minister “exercised his discretion by relying on considerations that are irrelevant, capricious or foreign to the purpose of the statute” (reasons of the Federal Court Judge, at paragraph 252; see also paragraphs 243–250).
[46] The failure of DFO and the Minister to base the Decision on current and best available science that the American eel population is increasing, renders the Decision unreasonable and procedurally unfair.
[47] Additional misleading, false, and incomplete statements to the Minister by the DFO officials includes:
The low capital nature of the elver business; and,
The Department’s exponential growth in value over the past decade.
[48] Ms. Berthier made no inquiry about licence holders’ capital investments, nor operations costs, but she relied on her own general assumptions. These are evidenced in the cross-examination of Ms. Berthier. These false assumptions are also evidenced in the personal statements of the Minister in the elver fishery meeting, specifically, “well, if your family has been in this business for thirty years, then, you must have done very well for yourselves[,]”
and the Minister’s statement repeating the obviously false claim that the Elver Fishery had increased five times in the last six years.
[49] A judicial review application may address a course of conduct that is ongoing, without specific reference to a decision made 30 days prior to the occasion of filing (Key First Nation v Lavallee, 2021 FCA 123 [Key]). This applies here.
(2) Respondent’s Position
[50] The content of the duty owed to both Applicants is low, due to Baker factors one, two and four: 1) the nature of the decision being made; 2) the nature of the statutory scheme and the terms of the statute pursuant to which the body operates; and 4) the legitimate expectations of the person challenging the decision.
[51] In relation to factors one and two, the Decision is discretionary, involved consideration of multiple factors, and does not resemble judicial decision making (Baker at para 23). The Minister’s broad discretionary power to manage the fisheries, and the requirement for her to consider and balance a variety of interests, weigh against a finding that greater procedural protections are required.
[52] Additionally, due to the polycentric nature of this Decision, the degree of procedural fairness owing to the Applicants is minimal (Baker at para 23; Foster Farms LLC v Canada (International Trade Diversification), 2020 FC 656 at para 47 [Foster Farms]). Furthermore, commercial interests rest at the low end of the of spectrum in terms of the importance of the Decision (Telus Communications Inc. v Vidéotron Ltée, 2022 FC 726 at para 91; Foster Farms at para 49).
[53] Regarding the legitimate expectations of the Applicants, in Shelburne 2023, Justice Walker found that the 2022 Decision was of significant importance to the Applicants, but the doctrine of legitimate expectations did not assist them in proving the process was unfair. The doctrine of legitimate expectations is an extension of the principle of procedural fairness and does not create substantive rights. It can only arise when a government representative makes “clear, unambiguous and unqualified”
procedural representations (Shelburne 2023 at para 52).
[54] Shelburne’s arguments relating to the doctrine of legitimate expectation are in the same fashion as in Shelburne 2023, that: DFO unfairly abandoned the WBWS model before the 2022 season; Shelburne had a legitimate expectation that the WBWS model would be resurrected for the 2023 season based on the Minister’s statements on March 3, 2021, comments in the Senate on March 7, 2023, and DFO’s representations in the 2022 Decision; and, the Minister classified the 2022 Decision as an interim approach. The Court in Shelburne 2023 (at para 59), rejected these arguments, specifying that neither the Minister nor DFO had made clear, unambiguous and unqualified statements capable of grounding a legitimate expectation.
[55] Essentially, the Applicants’ request for this Court to re-examine the March 3, 2021 Ministerial statement and find differently than what was found in Shelburne 2023 is an affront to this Court’s ruling and is barred by the doctrine of issue estoppel.
[56] Regarding the Ministerial comments before the Senate on March 7, 2023, these comments are not binding at law (Arsenault v Canada (Attorney General), 2009 FCA 300 at paras 33, 38, 41-42, 54 and 57 [Arsenault]; Doucette v Canada, 2015 FC 734). Shelburne misapprehends the Minister’s statements. The Minister stated: that a WBWS approach is a good approach; that she and DFO generally prioritize the WBWS approach; and, that she would pursue the WBWS approach where possible. There were no clear, unambiguous, and unqualified statements indicating the WBWS model would be pursued for the 2023 season.
[57] The March 7, 2023 comments of the Minister post-date the Applicants’ full awareness of the issues at hand for the upcoming fishery season (January 26, 2023 in-person meeting; January 30, 2023 correspondence), and post-date the Applicants’ February 8, 2023 written response to the Minister’s proposed approach for the 2023 season. It is illogical to suggest a 2023 season legitimate expectation could be grounded in a statement made to the Senate March 7, 2023.
[58] SST does not detail how Ms. Bernier’s statements regarding low capital investment proves bad faith on her part personally, or by DFO at large.
[59] While licence holders cannot claim to have a right that quota allocations would not be reduced or that they have a right to be financially compensated for quota reductions, they can claim that they have a legitimate expectation to be notified and make limited representations before a decision is made to reduce quota allocations without financial compensation.
[60] Consistent with the process leading to the 2022 Decision, the Applicants were provided with the opportunity to express its procedural and substantive objections to the January 30, 2023 proposal, and to have its views and evidence considered. The Minister was fully apprised of the Applicants’ positions when she rendered her Decision. The Applicants cannot point to any defect in procedure, other than its view that the procedure was not meaningful from its perspective and did not lead to the substantive outcome desired.
[61] The decision to reduce the IQ of commercial licence holders and distribute this quota to new fishery entrants is based on broad policy considerations. The Minister was not under a legal obligation to consider nor implement a compensation process when she maintained the reduction to the Applicants’ quota, consistent with the 2022 allocations. The Federal Court of Appeal held that the Minister is not obligated to provide financial compensation to fishers when reallocating the TAC or reducing quota (Arsenault at para 57).
[62] Ultimately, in Shelburne 2023 the Court found that the process followed by DFO and the Minister to arrive at the 2022 Decision was fair. The Applicants were afforded the opportunity to express their procedural and substantive objections during the process, and those views were considered by the Minister. The same should be found with respect to the Decision at issue here.
[63] In Anglehart (at para 73), the Federal Court found the Minister essentially traded quota allocation in return for financial contributions from licence holders to DFO scientific research. This was determined to be an arbitrary exercise of discretion, as the willingness of a licence holder to pay money was in no way connected to the purpose of the Fisheries Act. In this judicial review, the Minister decided to allocate IQ to facilitate First Nations access to a fishery, which is clearly connected to one of the many purposes of the Fisheries Act. Accordingly, the Court’s reasoning in Anglehart is of no persuasive value.
[64] SST alleges bias in relation to the COSEWIC report and the impact of the report on the Minister’s inflexibility on the elver TAC. However, the COSEWIC report is not subject to judicial review in this application. Likewise, the TAC amount is also not subject to judicial review on this application. The Applicants impermissibly seeks judicial review of the Decision to challenge scientific analysis conducted 11 years prior. This is an improper use of the Court’s time and resources. As in Shelburne 2023, the Minister was aware of SST’s bias concerns in relation to the COSEWIC report and its arguments relating to alternative TAC measures, all of which were provided in the DFO summaries. Justice Walker remained unpersuaded by these arguments (at para 67).
[65] In Key, the applicants challenged a contentious retainer agreement, a continuing course of conduct, not a discrete decision or order.
[66] In the case at bar, Shelburne seeks to impugn the COSEWIC report along with the Minister’s Decision, without seeking any relief related to the report. The COSEWIC report is not a decision or product of the Minister nor DFO. Even if this report were reviewable, it cannot be pursued through a judicial review naming the Minister as the Respondent. In any event, the COSEWIC report was not raised in the originating Notice of Application, and therefore cannot be raised for the first time in argument.
[67] Shelburne mischaracterizes Ms. Berthier’s testimony relating to the significant reliance on the COSEWIC report. Ms. Berthier testified that the health of the American eel population is a significant factor in the Minister’s decision-making, given that conservation is a significant priority for DFO. The COSEWIC report is only one of several factors in this recommendation.
[68] SST’s submissions on the scientific scholarship and opinions expressed in the COSEWIC report, contrasted with a scientific review of one river in Nova Scotia, and a 2015 decision from the United States Fish and Wildlife Service, invite the Court to usurp the role of the Minister and become an “academy of science”
. The Court’s role is not to arbitrate conflicting scientific predictions, but rather to review the exercise of statutory authority to determine whether it was reasonably discharged (West Vancouver v British Columbia, 2005 FC 593 at para 55). As in Shelburne 2023, these views and objections were before the Minister, were relied upon in her conservation analysis, and do not constitute a reviewable error.
[69] In a recent decision, the Federal Court reiterated that a decision made in bad faith is a decision made for a purpose not authorized by statute, by decision-makers acting dishonestly, maliciously, fraudulently, with mala fides, or manifesting serious misconduct bordering on the corrupt (Munroe v Canada (Attorney General), 2021 FC 727 [Munroe] para 65). SST makes a serious allegation with no supporting evidence to substantiate its claim. The Applicants’ claims are vague, unclear, and not wholly attributable to specific individuals.
[70] All these arguments were previously canvassed in Shelburne 2023, none of which were found to be persuasive, and none of which this Court has any principled basis to depart from.
(3) Conclusion
[71] The Decision was not rendered in a procedurally fair manner. I find that the neither the Minister nor DFO were biased in making the Decision. However, I do find there was breach of procedural fairness in that the Minister and DFO did not adequately consult with the Applicants. I will begin by addressing SST’s allegations of bias and then I will address the Baker factors addressed by the parties.
(a) Bias
[72] In Baker (at para 46), the Supreme Court of Canada described the standard of review for alleged bias in decision making, as quoted above in the paragraph 38.
[73] SST’s submissions essentially argue the COSEWEC report was biased and the Minister, by adopting the biased report, was therefore biased in making the Decision. In this case, and on the record before the Court relating to the Decision, it seems neither appropriate nor prudent to conclude there has been bias on the part of the Minister. The standard for establishing bias is high and the Applicants have not met this burden with sufficient evidence.
[74] I agree with the Respondent, this application for judicial review is not the appropriate forum to challenge the COSEWIC report. The fact that the Applicants disagree with the COSEWIC report is not a sufficient basis to suggest the Minister was biased in making the Decision. For the purpose of clarity, I provide the following analysis of the November 28, 2022 Memorandum to the Minister in which the COSEWIC report is referenced. This brief overview suggests the Minister and DFO had various reports before them, and both appear to have considered these various reports as part of fisheries management for the elver fishery.
[75] The November 28, 2022 Memorandum refers to the COSEWIC report classifying the American eel as “threatened”
and states “this continues to influence management considerations for the elver fishery”
. On its face, this statement does not indicate the COSEWIC report was the only guiding consideration in the Decision, nor that the COSEWIC report heavily influenced management decisions as submitted by the Applicants. Furthermore, the majority of this November 28, 2022 Memorandum addresses First Nations access to the fishery and concerns about unauthorized fishing.
[76] Within the November 28, 2022 Memorandum reference is made to additional sources for consideration, such as the 2013 Recovery Potential Assessment study, demonstrating that guidance was derived from more than the COSEWIC report alone. For example, the 2013 study indicates there are uncertainties about American eel abundances throughout its ranges and provides evidence indicative of an overall declining population trend in Canada. This section of the November 28, 2022 Memorandum states only that this should be considered in fisheries management decisions and that this continues to influence management decisions.
[77] In the “Analysis and Considerations”
portion of the same November 28, 2022 Memorandum, dealing with “sustainability”
, there are reports suggesting an increase in elver returns in the region. The November 28, 2022 Memorandum states that in the absence of new science advice, and in the interest of continuing to apply the precautionary approach to harvesting American eels while under review for possible listing under the SARA, it is appropriate for the TAC to remain at 9,960 kg for the 2023 season. While TAC is not at issue in these applications, nevertheless, these references do not indicate that the COSEWIC report had an overwhelming influence on the Decision as submitted by SST.
[78] Overall, when reviewing the record, I find that there is insufficient evidence to establish bias on the part of the Minister or DFO in assessing any of the reports referred to in the November 28, 2022 Memorandum to the Minister.
(b) Baker Factors
[79] Turning now to the parties’ submissions on the Baker factors I find no dispute that the Decision is of significant importance to the Applicants. The Applicants have had commercial licences for a long period of time and their respective businesses involve participation in the Elver Fishery.
[80] A January 5, 2023 Memorandum to the Minister discusses the economical circumstances of the Elver Fishery and notes that “the 2022 interim arrangement will serve as the basis for the 2023 season to develop a longer-term approach”
. While this recommendation was communicated to the Minister, the Applicants do not appear to have been notified of this potential approach until the initial meeting on January 26, 2023.
[81] Another Memorandum dated March 3, 2023, summarizes the meeting on January 26, 2023, the letter of January 30, 2023 seeking feedback on the proposed interim approach, and the feedback from the Applicants in their letters of February 8, 2023. The March 3, 2023 Memorandum summarizes the concerns of the licence holders, the views of First Nations and concerns over unauthorized fishing. Notably it states:
“They [incumbent licence holders] also expressed that in 2022, the Department said it would engage with them prior to 2023 but that the Department gave them less than two weeks to respond to the proposed approach to the 2023 fishery.”
…
“Although departmental officials may have said they would engage with licence holders well in advance of the 2023 fishing season, and although statements may have been made regarding a “willing-buyer/willing-seller” approach, such statements cannot be permitted to fetter you in your discharge of your statutory functions. The issuance of licences is at your discretion. Although generally licence holders receive a renewal of the licence from year to year, licence holders are not legally entitled to a renewal. Likewise, although licence holders generally receive the same quota from year to year, licence holders are not legally entitled to receive any quota, or any particular amount. Licence holders are not legally entitled to financial compensation for quota reductions.”
[82] This March 3, 2023 Memorandum also references the Minister’s January 20, 2023 mandate to DFO setting the TAC, and directing DFO to engage with licence holders on the potential interim reduction of quota allocations for a second year by 13.7 percent. This potential reduction for a second year also was not communicated to the licence holders.
[83] To determine the legitimate expectations of the Applicants, they have emphasized the following excerpt of the Minister’s 2022 Decision:
Prior to the 2023 season, the Department will engage with licence holders to explore a longer-term approach to support an increase in Indigenous participation in the commercial elver fishery. This may include a second expression of interest process to obtain proposals from licence holders for a reduction in participation, or exit from the fishery. The Department is committed to a review of the fishery informed through engagement of existing licence holders and First Nations to support the priority for conservation, the ongoing implementation of Aboriginal and treaty rights and the orderly management of fisheries. [Emphasis added]
[84] First, in addressing legitimate expectations, I agree that the 2022 Decision did not clearly, unambiguously, and unqualifiedly state that the Minister would proceed with a WBWS model prior to the 2023 fishing season. On its face, the 2022 Decision refers to a longer-term approach which may include a second expression of interest process to obtain proposals from commercial licence holders. In the March 3, 2023 Memorandum, referenced in paragraph 81, above, a statement is included that further illustrates a lack of clarity regarding whether the 2022 Decision to explore a longer-term approach was made in the context of the WBWS model.
[85] As for the Minister’s public statements, they also lack clear, unambiguous, unqualified intention, thus they cannot support a substantive right in a legitimate expectation claim (Shelburne 2023 at paras 50-9). Justice Walker, citing Anglehart, found the Applicants were not entitled to substantive rights respecting IQ allocations, nor to compensation arising solely from a loss of IQ (Shelburne 2023 at para 59). I agree. Those findings are equally applicable in this matter.
[86] As the Respondent points out, legitimate expectation can create procedural rights to make representations or be consulted (Malcolm v Canada (Fisheries and Oceans), 2014 FCA 130 at para 49). I do not consider the Applicants’ submissions as requesting substantive rights. I also consider that this is how the 2023 Decision differs from the 2022 Decision.
[87] As noted above, the DFO made statements regarding engagement for the purpose of longer-term solutions “well in advance”
of the 2023 season. It is true that the first movement on the matter occurred in November 2022, with the first Memorandum to the Minister and the first engagement occurred on January 20, 2023. While delay, in and of itself, is insufficient to establish a breach of procedural fairness (Shelburne 2023 at para 65) I note that that the delay in Shelburne 2023 was attributed to issues in the fishery that DFO and the Minister were required to contend with. Those issues are not present in the events leading to the Decision at issue.
[88] Delay and the timing of the Ministry’s actions were considered “critical”
to the procedural fairness arguments in Shelburne 2023. A crucial point in the timeline occurred on February 24, 2022, where DFO explained that there would not be a second round of consultations and requested the licence holders’ response to the 14% reduction in IQ. Justice Walker found, despite the consultations kicking off prior, that February 24, 2022, was the starting point for the consideration of whether there was a breach of procedural fairness. Justice Walker assessed the participatory rights of the Applicants from that point forward (Shelburne 2023 at para 61).
[89] Following February 24, 2022, Justice Walker considered: the Applicants responded and stated their opposition (March 3, 2022); a meeting was held with the licence holders (March 15, 2022); a further meeting was held with the licence holders (March 23, 2022); proposals were submitted by the licence holders (March 24, 2022); and several internal memoranda cumulatively led to the April 2022 Decision.
[90] There are significant distinctions between the events and actions of DFO and the Minister leading to the 2022 Decision as compared to the Decision at issue here. In this matter, and despite the 2022 Decision, there was no consultation or engagement prior to the first meeting with the commercial licence holders on January 26, 2023. I will assess the participatory rights of the Applicants from this date forward.
[91] Thereafter, “engagement”
with commercial licence holders include a single correspondence dated January 26, 2023 requiring a response by February 8, 2023. There was no other engagement with commercial licence holders despite the Memoranda indicating that certain courses of action were likely to be implemented vis a vis the licence holders. In addition, the licence holders February 8, 2023 response letters do not appear to be properly summarized in DFO’s Memoranda, nor effectively communicated to the Minister.
[92] Preceding any “engagement”
with licence holders, DFO and the Minister had already made the final decision on TAC (not in issue) and had made the decision to frame the “potential”
IQ decision as an interim approach.
[93] Regarding delay, DFO had to write three memos to the Minister requesting approval before they could move ahead with consultation, even though they had already delayed any action whatsoever until November 28, 2022. The Minister did not approve consultation until January 20, 2023.
[94] There was effectively little more than one month between the start of “engagement”
(the January 26, 2023 meeting between DFO officials and the Applicants), and the Minister’s decision, (the letter of March 17, 2023). This is quite distinct from the Shelburne 2023, which classified those discussions as bona fide consultation.
B. What is the Appropriate Remedy?
(1) The Applicants’ Positions
(a) Shelburne - Remedy
[95] Shelburne Elver requests an Order in the nature of certiorari quashing and setting aside the decision to reduce, without financial compensation, the Applicant’s IQ issued to it under its licence by 13.7% in comparison to the IQ allocated in 2005 to 2021. Shelburne also requests an Order in the nature of mandamus requiring the Minister to recommence, and follow through, with the WBWS voluntary relinquishment process.
(b) SST
[96] SST seeks the following Orders:
1)A declaration that the Decision was unreasonable and/or incorrect.
2)An Order for the Department to provide the Minister an objective report addressing the Applicant’s concerns about the 2012 COSEWIC report.
3)An Order that the 2012 COSEWIC report be given no legal effect in the management decision of the DFO until the objective report is complete.
4)An Order that this Court retain jurisdiction of this matter pending the recently announced fishery reviews.
5)An Order that DFO take no retaliatory steps towards the Applicants in response to this litigation.
(2) Respondent’s Position
[97] The Applicants fail to demonstrate how an order in the nature of mandamus could be appropriate or necessary in this proceeding. A writ of mandamus is a discretionary, equitable remedy that operates “to compel the performance of a public legal duty which a public authority refuses or neglects to perform although duly called upon to do so”
(Re Minister of Manpower and Immigration and Tsiafakis, 1977 CanLII 3119, [1977] 2 FC 216 (FCA) at p. 222). There are strict preconditions to obtaining a writ of mandamus, which include: a public legal duty to act that is owed to the applicant; a clear right to the performance of that duty; and no other adequate remedy available to the applicant (Ahousaht First Nation v Canada (Fisheries, Oceans and Coast Guard), 2019 FC 1116 at para 72 [Ahousaht]).
[98] The Court cannot direct the Minister to exercise her discretion under the Fisheries Act in a particular way through an order of mandamus (Ahousaht at para 73-4). It is well-settled law that mandamus is not available where the decision-maker’s discretion is characterized as unqualified, absolute, permissive or unfettered (Apotex Inc. v Canada (Attorney General)(CA), [1994] 1 FC 742 at para 45, 1993 CanLII 3004 (FCA); and St. Brieux (Town) v Canada (Fisheries and Oceans), 2010 FC 427, at paras 57 and 66).
(3) Conclusion
[99] I agree with the Respondent that an Order in the form of mandamus requiring the Minister to recommence the WBWS process is inappropriate. As above the principle of legitimate expectation cannot ground a substantive right to a particular process where that process has not been specifically and exclusively declared.
VII. Conclusion
[100] The Decision was procedurally unfair. The lack of engagement in advance of the 2023 season was procedurally unfair. This lack of engagement did not meet the level of a bona fide attempt to engage. The Minister’s decision to frame engagement as a response to another interim measure, precluding meaningful consultation in either a long-term or short-term solution was not in keeping with the assurances stated in the 2022 Decision.
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