Date: 20060908
Docket: T-1536-05
Citation: 2006 FC 1076
Ottawa, Ontario, September 8, 2006
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
IGNATIUS BENOIT
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR
ORDER AND ORDER
[1] Mr. Ignatius
Benoit, the Applicant, is a fisherman. In 1996, Mr. Benoit was denied CORE
status, that being the highest assessment available to a fisherman and which
status carries with it significant benefits. Since that time, Mr. Benoit has contested
this determination through administrative means. He has now brought this
application for judicial review of the various decisions, made by the
following entities and persons:
- The
CORE Assessment Unit of the Department of Fisheries and Oceans (DFO),
dated August 2, 1996;
- The
Industry/DFO Review Committee, dated October 3, 1996, as confirmed by an
official with DFO in November 1996;
- The
Minister of Fisheries and Oceans (the Minister), Robert Thibault, at
various dates in 2002 and 2003; and
- The
Minister, Geoff Regan, at various dates in 2004 and 2005, and finally
dated August 12, 2005.
[2] In
terms of judicial remedies, Mr. Benoit seeks to quash all of the related
decisions and an order of mandamus to compel the CORE Assessment Unit to
consider the merits of his application on certain terms.
[3] The
parties agree that the Attorney General of Canada is the proper Respondent in
this application. The style of cause will be amended to delete the Minister of
Fisheries and Oceans and the CORE Assessment Unit, Department of Fisheries and
Oceans as Respondents.
Issues
[4] The issues in
this matter are as follows:
1.
What
is the decision under review?
2.
What
are the nature of the decision and the applicable standard of review?
3.
Did
the Minister commit errors that warrant intervention?
Relevant
Statutory and Administrative Scheme
[5] Authority to
issue commercial fishing licences is held by the Minister of Fisheries and
Oceans, pursuant to s. 7(1) of the Fisheries Act, R.S.C. 1985, c. F-14,
which states:
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7. (1) Subject to subsection (2), the
Minister may, in his absolute discretion, wherever the exclusive right of
fishing does not already exist by law, issue or authorize to be issued leases
and licences for fisheries or fishing, wherever situated or carried on.
|
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7. (1) En l’absence d’exclusivité du droit de pêche conférée par la
loi, le ministre peut, à discrétion, octroyer des baux et permis de pêche
ainsi que des licences d’exploitation de pêcheries — ou en permettre l’octroi
—, indépendamment du lieu de l’exploitation ou de l’activité de pêche.
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[6] In 1996, the policy of the Minister was to assess fishermen
to determine whether they qualified for CORE status. To assist in the exercise
of discretion, the CORE Assessment Unit and the Industry/DFO Review Committee
were created to provide non-binding recommendations to the Minister. Once a
decision is made by the Minister, it is noteworthy that there is no statutory
right to a review or appeal of the licensing decision. Thus, a Minister’s
agreement to review or re-open a decision to refuse a licence is a
discretionary decision founded in the same s. 7(1) as the original decision.
Analysis
What
is the decision under review?
[7] The
Applicant’s intention is to seek review of all of the successive decisions relating
to his CORE status, from the negative recommendation by the CORE Assessment
Unit in 1996 to the Minister’s refusal to reopen the file on August 12, 2005.
In total, there are eight Ministerial decisions at issue. That is, between
November 2001 and August 12, 2005, Mr. Benoit made at least eight requests for
a reconsideration; the Minister refused Mr. Benoit’s request in seven (possibly
eight) separate written decisions.
[8] There are a
number of problems with this broad approach. First, decisions of the CORE
Assessment Unit and the Review Committee are beyond the scope of this review.
These bodies make recommendations to the Minister’s delegates; they do not make
decisions. This judicial review may only relate to decisions of the Minister or
his delegates to refuse to issue the CORE licence (Jada Fishing Co. v.
Canada (Minister of Fisheries and Oceans) [2002] F.C.J. No. 436
(QL), 2002 FCA 103 at para. 13).
[9] Secondly, s.
18.1(2) of the Federal Courts Act, R.S.C. 1985, c. F-7 provides that
applications for judicial review must be brought within 30 days of the decision
complained of. Except for Minister Regan’s final decision, expressed in his
letter of August 12, 2005, all earlier decisions exceed this 30 day time-limit.
Mr. Benoit could have brought applications of the earlier decisions. Having
failed to exercise his rights to seek judicial review of those earlier
decisions, s. 18.1 (2) of the Federal Courts Act – as well as the
interests of justice in finality of decisions – precludes Mr. Benoit from review
of earlier decisions.
[10] Finally, an
application for judicial review is available against a single decision. An
application must be filed for each decision for which review is sought (Rule
302, Federal Courts Rules, 1998, SOR/98-106; Human Rights Institute
of Canada v. Canada (Minister of Public Works & Government Services),
[2000] 1 F.C. 475 (T.D.)).
[11] For these
reasons, the only decision that will be considered is the decision of the
Minister dated August 12, 2005. I begin by reviewing that decision.
Minister’s
Decision of August 12, 2005
[12] The decision
under review was made in response to a request dated June 30, 2005, from
counsel for Mr. Benoit. In the request for a ministerial review, counsel for
Mr. Benoit identified a number of grounds upon which the request was based:
- Inconsistency
in procedures by the DFO/Industry Review Committee during its 1996
hearing;
- Abuse of
process by the Review Committee in 1996, in its refusal to review certain
material or hear Mr. Benoit on certain information;
- New
information, “not previously provided to the Minister’s office … to prove
that the Applicant operated as an Enterprise Head during his pre-injury
years”; and
- Exceptional
circumstances including Mr. Benoit’s lack of education, which attempt
to explain his failure to provide the relevant information and to
understand his rights of appeal.
[13] The
Minister’s response, in his letter of August 12, 2005, is as follows:
Thank you for your letter of June 30,
2005, regarding Mr. Ignatius Benoit’s designation under CORE Licensing Policy.
As mentioned in my previous letters and
in letters from my predecessors, Mr. Benoit’s case has been thoroughly reviewed
on a number of occasions and the decision made in his case will stand.
Since 1996, licence-holders have been
provided with sufficient opportunity to have their cases reviewed. However, I
am no longer prepared to have officials review cases that have been provided
with a clear decision after thorough review. Regretfully, I cannot be of
further assistance to Mr. Benoit.
What
are the nature of the decision and the applicable standard of review?
[14] The decision
to deny CORE status to Mr. Benoit made in November 1996 was, subject to
possible judicial review, intended to be final and binding. There is no
statutory provision for review of the Minister’s decisions and certainly no
legislated duty on the Minister to entertain endless requests for
reconsideration of the same decision. It appears from a review of the
correspondence that the Minister, in some earlier decisions, had advised Mr.
Benoit that he would reconsider the decision under certain circumstances, such
as new information brought forward by Mr. Benoit (see, for example, the
Minister’s letters dated June 3, 2002 and November 7, 2003). In each case, Mr.
Benoit responded to the invitation with a request for reconsideration and, in
each case, the request was denied. This invitation to submit further
information was not contained in the Minister’s decisions of April 29, 2004 or
July 6, 2005.
[15] Given that:
(a) there is no statutory duty on the Minister to conduct a review; (b) the
Minister had not, in correspondence in 2004 and 2005, invited Mr. Benoit to
submit any further request; and (c) Mr. Benoit had already had numerous
reviews, I am not entirely certain that there was any obligation whatsoever on
the Minister at this stage to provided a response to Mr. Benoit’s eighth
request for reconsideration. However, if there was, it would be one that
carried with it requirements for minimal procedural fairness (Baker v.
Canada (Minister of Citizenship and Immigration) [1999] 2 S.C.R.
817). I would assume that the obligation, if any, on the Minister would be to
review the June 30, 2005 submissions in good faith and without being arbitrary
or taking irrelevant considerations into account.
[16] The
discretionary nature of licence conferral by the Minister is firmly established.
Justice Major described this nature at paras. 36-37 of Comeau’s Sea
Foods Ltd. v. Canada (Minister of Fisheries and Oceans), [1997]
1 S.C.R. 12:
It is my opinion that the Minister's discretion under s. 7 to
authorize the issuance of licences, like the Minister's discretion to issue
licences, is restricted only by the requirement of natural justice, no
regulations currently being applicable. The Minister is bound to base his or
her decision on relevant considerations, avoid arbitrariness and act in good
faith [emphasis added]. The result is an administrative scheme based
primarily on the discretion of the Minister: see Thomson v. Minister
of Fisheries and Oceans, F.C.T.D., No. T-113-84, February 29, 1984.
This interpretation of the breadth of the Minister's discretion is
consonant with the overall policy of the Fisheries Act. Canada's
fisheries are a "common property resource", belonging to all the
people of Canada. Under the Fisheries Act, it is the Minister's
duty to manage, conserve and develop the fishery on behalf of Canadians in the
public interest (s. 43). Licensing is a tool in the arsenal of powers available
to the Minister under the Fisheries Act to manage fisheries. It
restricts the entry into the commercial fishery, it limits the numbers of
fishermen, vessels, gear and other aspects of commercial fishery.
[17] This Court has consistently adopted a standard of patent
unreasonableness for decisions of the Minister or his officials to deny,
suspend, or revoke licences, in accordance with the pragmatic and functional
approach (see, for example, Tucker v. Canada (Minister
of Fisheries and Oceans), [2000] F.C.J. No. 1868 (F.C.T.D.), aff’d [2001]
F.C.J. No. 1862 (F.C.A.) at
paras. 13-16; approved in Fennelly v. Canada (Attorney General),
[2005] F.C.J. No. 1573, 2005 FC 1291 at para. 21; and Goodwin v. Canada (Minister of
Fisheries and Oceans), [2005] F.C.J. No. 1438, 2005 FC 1185 at para. 25).
[18] If a decision
to deny, suspend or revoke a licence is subject to the highest standard of
judicial review, it follows that a decision as to whether a decision should be
reviewed is subject to no lower standard. Both decisions are discretionary and,
in my view, fall within the “administrative scheme” referred to by the Supreme
Court in Comeau’s, above.
[19] On this
highest standard, “[t]he Minister is bound to base his or her decision on
relevant considerations, avoid arbitrariness and act in good faith” (Comeau’s,
above at para. 36; followed by Justice Elizabeth Heneghan in Keating v.
Canada (Minister of Fisheries and Oceans), [2002] F.C.J. No. 1602,
2002 FCT 1174 at paras. 64-65).
Did the
Minister Err?
[20] Mr. Benoit
acknowledges that he is attempting to overturn the recommendation of the Review
Committee and the resulting decision of the Minister to deny CORE status to
him. A review of all the subsequent submissions to the Minister, including
those at issue in this application, demonstrates this fact. Mr. Benoit has
repeatedly disputed the process leading to his status and attempted to address
the process and conclusions of the Committee. In this hearing, Mr. Benoit
points to a series of alleged procedural and factual errors made by the
Committee, including:
- Breach
of the Doctrine of Legitimate Expectations;
- Reasonable
Apprehension of Bias on the part of the Committee members;
- Failure
to allow Mr. Benoit to put forward documents addressing some of the
issues;
- Failure
to inform Mr. Benoit of the information in his file.
[21] The alleged
errors are almost impossible to assess at this time. These arguments highlight
the public policy reasons for limiting the time within which an application for
judicial review may be brought. It is simply not fair to the Respondent to
bring up the concerns that should have and could have been made following the
1996 decision of the Minister.
[22] According to
Mr. Benoit, he has only known since 2003 that the Review Committee’s
decision was based on a misunderstanding of his pre-1983 fishing activities. He
also argues that many of the alleged errors on the part of the Committee have
only been exposed through this judicial review. For example, he points out that
the information before the Committee on Mr. Benoit’s fishing experiences, as
contained in the DFO files, was not complete. However, had Mr. Benoit commenced
a judicial review of the initial decision in 1996 or the earlier Minister’s
refusals to reconsider, the alleged errors would have become apparent. A review
of the Minister’s decision that relied on that recommendation would likely have
brought to light all of the evidence before both the Committee and the
Minister. Further, a timely judicial review that raised concerns of procedural
fairness, legitimate expectations and reasonable apprehension of bias could
have proceeded with a full and contemporaneous record.
[23] Mr. Benoit
submits that he was not aware that he could appeal the Minister’s decision.
This is not an acceptable excuse. Given the importance of the CORE status to
his livelihood, one would have expected Mr. Benoit to seek assistance in
pursuing his claim.
[24] I have
similar concerns with respect to the many Ministerial decisions that occurred
between July 29, 2002 and July 6, 2005. In each case, the request for review
was made by counsel on Mr. Benoit’s behalf. As evidenced by the language of the
various requests, Mr. Benoit (or, at least, his counsel) had full knowledge that
recourse to this Court was available. In spite of this, no earlier application
to this Court was made.
[25] In the
absence of successful judicial review of the 1996 decision or of the many
subsequent decisions, it was open to the Minister, when considering his final
response, to assume that there had been no errors in those earlier decisions.
Thus, it was not unreasonable for the Minister to reject the submissions in the
June 30, 2005 request that related to the following:
- Inconsistency
in procedures by the DFO/Industry Review Committee during its 1996 hearing;
- Abuse of
process by the Review Committee in 1996, in its refusal to review certain
material or hear Mr. Benoit on certain information; and
- Exceptional
circumstances including Mr. Benoit’s lack of education, which attempt
to explain his failure to provide the relevant information and to
understand his rights of appeal.
[26] This leaves
the new evidence submitted with the June 30, 2005 request for reconsideration.
Assuming, without deciding, that there was a duty on the Minister to consider
the further evidence submitted, the Minister’s task was to consider whether new
evidence, that was not or could not have been available to the earlier decision
makers, had been presented and whether such evidence would lead to a different
result than was reached in 1996.
[27] In the latest
submissions to the Minister, Mr. Benoit provided copies of affidavits of other
fishermen supporting his arguments related to his pre-1983 fishing status. Mr.
Benoit argues that the Minister ignored this relevant information. I do not
agree.
[28] I first note
that there is no evidence that the Minister failed to consider this evidence;
absent some evidence to the contrary, the Minister is presumed to have
considered the submissions made to him in the June 30, 2005 request for review.
Further, I can reasonably conclude that the Minister’s failure to refer
specifically to the affidavits was due to the fact that he concluded that: (a)
they did not provide any persuasive support to Mr. Benoit’ claim; and (b) they
did not constitute “new evidence”.
[29] In my view,
the affidavits provide little support to Mr. Benoit. The first problem is that
the affidavits are hearsay only in that the affiants are providing evidence of
their knowledge of Mr. Benoit’s fishing practices pre-1983. Secondly, the
affiants are merely expressing an opinion that Mr. Benoit had been an
“Enterprise Head” prior to 1983; this is precisely the decision that was to be
made by the officials at DFO, the Review Committee and the Minister after
review of all the evidence. Finally, there is no reason why this evidence could
not have been presented to the Review Committee at the time of its hearing into
this matter. The Minister’s rejection of the affidavits was not unreasonable.
[30] A further
argument made by Mr. Benoit is that the Minister relied on information prepared
for him by an official of DFO, which information was not made available to Mr.
Benoit. In Mr. Benoit’s view, the information provided to the Minister
contained numerous errors which have only come to light in the context of this
judicial review. Mr. Benoit submits that the failure to provide Mr. Benoit with
this information precluded Mr. Benoit from responding to the errors. This, he
argues, constitutes a breach of natural justice; he should have been allowed to
know the case against him.
[31] The
information that allegedly contains errors is part of Mr. Benoit’s ongoing file
with DFO. Mr. Benoit is not asserting (nor is there any evidence) that
officials at DFO prepared some “secret” report or provided other information to
the Minister that went beyond that in his file. Mr. Benoit could, at any time,
have requested to review his file. He cannot now rely on his failure to do so
as a reason for finding that the rules of natural justice had been breached.
Conclusion
[32] In
conclusion, I can find no error in the Minister’s decision of August 12, 2005,
in which he refused to review Mr. Benoit’s designation under the CORE Licensing
Policy. The Minister based his decision on relevant considerations, was not
arbitrary and acted in good faith. This application for judicial review will be
dismissed.
[33] As requested
in the written submissions and discussed at the oral hearing, the Minister will
be awarded costs at the usual scale.
ORDER
THIS COURT ORDERS that:
1. The
style of cause is amended to delete the Minister of Fisheries and Oceans and
the CORE Assessment Unit, Department of Fisheries and Oceans as Respondents;
and
- The
Application for judicial review is dismissed, with costs to the
Respondent.
“Judith A. Snider”
________________________
Judge
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