Date: 20060217
Docket:
T-775-05
Citation:
2006 FC 222
Ottawa, Ontario, the 17th day
of February 2006
PRESENT: The Honourable Mr.
Justice Harrington
BETWEEN:
ASSOCIATION
DES CRABIERS ACADIENS,
duly
incorporated under the laws
of
the province of New Brunswick,
ASSOCIATION
DES CRABIERS DE LA BAIE,
an
association duly registered under the laws
of
the province of Quebec
and
ASSOCIATION
DES CRABIERS GASPÉSIENS,
an
association duly registered under the laws
of
the province of Quebec
Applicants
-
and -
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
1. INTRODUCTION
[1]
This
motion is made in connection with an application for judicial review. The
motion is seeking an order directing the defendant (respondent) to provide the
plaintiffs (applicants) with additional documents. Pursuant to Rule 317, the
applicants are seeking the filing of two documents and any changes to the said
documents in the possession of the federal entity which took the impugned
decision. The respondent maintained that the documents are not relevant since
they were not before the decision-maker. Further, he noted that these documents
were created only after the decision was rendered.
[2]
The
applicants are seeking judicial review of the decision by the Minister of
Fisheries and Oceans made on or about April 4, 2005 to issue a snow crab
fishing permit authorizing the taking of a quota of 480 metric tons of snow
crabs to the Association des pêcheurs de poissons de fond acadiens (APPFA) in
exchange for a payment to the Department of Fisheries and Oceans (DFO) of
$1,900,000 to enable the DFO to finance its activities.
[3]
The
decision, at least as communicated to the applicants by fax on April 4, 2005,
reads as follows:
[translation]
Further to call for tenders on project
F4697-040016, the bid received from the Association des Pêcheurs de Poissons de
Fond Acadiens has been accepted by the Department.
[4]
As to the
application for judicial review, the applicants (that is, the plaintiffs) are
seeking a declaration that the Minister did not have jurisdiction and/or
exceeded his jurisdiction when he made the decision to issue a snow crab
fishing permit to the APPFA in exchange for the sum of $1,900,000 to be used to
finance the DFO’s activities; a declaration that the snow crab fishing permit
issued to the APPFA is invalid since the Minister did not have the power to
issue a fishing permit in exchange for the sum of $1,900,000 to finance the
DFO’s activities; a declaration that the Minister did not have the power to
delegate and/or exceeded his power to delegate his discretionary authority to
issue fishing permits and his duty to manage fisheries efficiently to the
APPFA; and an order quashing the Minister’s decision of April 4, 2005 to issue
a snow crab fishing permit to the APPFA authorizing the taking of 480 mt.
[5]
As to the
motion at bar, the applicants are seeking an order from this Court that the
following documents be filed: a copy of the draft agreement concluded with
APPFA in 2005 regarding the issuing of a fishing permit and the taking of 480
metric tons of snow crabs; a copy of the fishing permit issued to the APPFA for
the 480 metric tons; and a copy of any changes to the aforesaid documents.
[6]
This case
began when the [translation]
“project call for tenders”, the closing date of which was March 23, 2005, was
sent to the DFO, Finance and Material Management, in Moncton. Its primary
purpose was, inter alia:
[translation]
. . . the purpose of improving fishing
management in these zones and financing the additional activities of the
Department. A quota not exceeding 480 metric tons of snow crabs was identified
for the DFO’s additional activities to improve the overall management of
fishing in these zones. The promoter’s financial obligations amount to $1,900,000.
[7]
The call
for tenders was issued by Carole LeBlanc, contracting and procurement officer.
[8]
The fax of
April 4, 2005 indicating that the APPFA bid [translation]
“has been accepted by the Department” was sent out by Monique Baker, Senior
Advisor, Shellfish, with the DFO for the Gulf region.
[9]
Ms.
Leblanc and Ms. Baker both signed affidavits regarding this case. Ms. Baker
stated that the documents sought by the applicants existed, but the draft
agreement with the APPFA was concluded on April 12, 2005 and the fishing permit
issued on April 29, 2005.
[10]
Ms.
LeBlanc, Ms. Baker and other individuals were members of the review committee.
On March 30, 2005, Ms. LeBlanc sent a letter to J.B. Jones, General
Manager of the Gulf region, recommending that the quota be awarded to the
APPFA. On the same day, Francis R. Breau, Acting Regional General Manager,
signed the approval on behalf of Mr. Jones.
2. ISSUES
A. Are the documents relevant?
B. If the
documents are relevant, must they be filed despite the fact that they did not
exist when the decision was made?
C. If the
documents are relevant, must they be filed despite the fact that they were not
before the decision-maker?
3. ANALYSIS
[11]
The
documents are clearly relevant in view of the decision challenged by this
application for judicial review.
[12]
It does
not much matter that the documents did not exist when the decision was made.
The applicants were informed that the decision received from the APPFA had been
approved by the Minister. As it is not only necessary to have a contract but a
fishing licence for the contract to be enforceable, and in the case at bar the
contract had been awarded, the Minister could not then argue that he could not
provide the documents since the contract was not finalized. “Equity looks on as
done that which ought to be done”.
[13]
As to the
fact that the documents were not before the decision-maker, the filing thereof
cannot be avoided by failing to supply them to the decision-maker. As indicated
in Tremblay v. Canada (Attorney General), 2005 FC 339, [2005] F.C.J. No.
421 (QL), the issue is not only whether the documents were before the
decision-maker but whether they should have been before him.
[14]
Irrespective
of the time of creation of the documents, they are directly related to the
decision nevertheless and in such circumstances cannot be ignored. The
documents in question still flow directly from what was decided, whether on
March 30 or April 4, 2005.
[15]
In
general, an application for judicial review is based on the documentation
before the original decision-maker. However, if it is not possible to decide
the question, there are exceptions, for instance where the tribunal’s authority
is in issue. It will not suffice for the Minister to argue that the documents
could have been obtained by an access to information application. As mentioned
by Phelen J. in Cooke v. Canada (Correctional Service), 2005 FC
712, [2005] F.C.J. No. 886 (QL), at paragraphs 22 and 23 :
¶ 22
I reject any suggestion made by the Respondent that an applicant must use such
indirect means as the Access to Information Act to secure materials in a
tribunal's possession where the tribunal had failed to meet its obligations
under Rule 318(1).
¶ 23
Since the material which is "relevant to an application" is
material which may affect the decision that this Court may make; and, in this
instance the Applicant clearly attacked the adequacy of the investigation, the
material requested by the Applicant under Rule 317 should have been
provided to him. (CBC v. Paul, [2001] F.C.J. No. 542, 2001 FCA 93).
[16]
In
accordance with the analysis in Gitxsan Treaty Society v. Hospital
Employees’ Union (1999), 249 N.R. 37, [2000] 1 FC 135 (C.A.), [1999] F.C.J.
No. 1192 (QL), I am of the view that the documents should be filed.
[17]
The
applicants also sought an order varying an earlier order on deadlines to have a
cross‑examination postponed on account of circumstances beyond the
parties’ control, and a further deadline for filing their record pursuant to
Rule 309. The respondent consented to the extension of time.
ORDER
THIS COURT ORDERS:
1.
The motion
is granted;
2.
The
respondent shall provide the applicants with the following documents:
(a) a copy of the draft agreement
concluded with the APPFA in 2005 regarding the issuance of a fishing permit and
the taking of 480 metric tons of snow crabs;
(b) a copy of the fishing permit
issued to the APPFA regarding the 480 metric tons; and
(c) a copy of any changes to the
aforesaid documents;
3.
The
applicants have until April 24, 2006 to file their record;
4.
The
respondent has until May 30, 2006 to file his record;
5.
The whole
with costs.
“Sean Harrington”
Certified
true translation
François
Brunet, LLB, BCL
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