North of Smokey Fishermen's Assn. v. Canada (Attorney General), 2003 FCT 33

Date: 20030115

Docket: T-2172-02

Neutral citation: 2003 FCT 33

BETWEEN:

                                NORTH OF SMOKEY FISHERMEN'S ASSOCIATION,

                                                                                                                                                      Applicant,

                                                                              - and -

                                       THE ATTORNEY GENERAL OF CANADA and

                                      THE MINISTER OF FISHERIES AND OCEANS,

                                                                                                                                               Respondents.

                                                            REASONS FOR ORDER

LAYDEN-STEVENSON J.

[1]                 The applicant, North of Smokey Fishermen's Association (NOSFA), is an incorporated society that represents the interests of its fish harvester members in Nova Scotia. On December 27, 2002, NOSFA commenced an application for judicial review of the decision of the Minister of Fisheries and Oceans to approve a 4Vn winter cod fishery. NOSFA asks that the decision be quashed and that the Minister be prohibited from making a decision to open a 4Vn winter fishery on the basis that such decision exceeds the Minister's authority and/or constitutes an abuse of the Minister's discretion.

[2]                 On January 6, 2003, NOSFA, by notice of motion, applied for an interlocutory injunction "enjoining the Minister of Fisheries and Oceans from approving a 4Vn winter fishery pending the judicial review of the Minister's decision".

[3]                 The facts may be summarily stated. The southern Gulf of Saint Lawrence area is defined as Northwest Atlantic Fisheries Organization (NAFO) division 4T. The area east of Cape Breton is known as NAFO division 4Vn (Sydney Bight area). There are two distinct cod stocks involved in the 4Vn area. There is a resident cod stock that resides there all year. This stock mixes with the migratory 4T Gulf stock during the period from November to April. The cod stock defined as 4TVn refers to the southern Gulf of Saint Lawrence cod stock. The fishery on the 4TVn stock was closed during the moratorium between 1993 and 1999.

[4]                 The Minister announced the Gulf of Saint Lawrence Groundfish Management Plan (the Plan) on June 17, 2002. The Plan set the total allowable catch for the southern Gulf cod stock at 6,000 tonnes. This stock spends part of the year (May to October) in the NAFO 4T area and the remainder of the year in the 4Vn area. The stock is identified in the Plan as the 4TVn (November to April) cod stock. The applicant was advised of the Plan by correspondence from the Regional Director dated December 3, 2002. The fishing season for this stock extends from June 1, 2002 to May 31, 2003. The Plan specifies that at least 83.3% of the total allowable catch must be caught while the stock is in the 4T area. The remaining amount, up to 16.7% (860 tonnes this year) can be taken while the stock is in the 4Vn area, during the overwintering period from November to April. The 4Vn portion of the fishery has been traditionally allocated to the inshore (less than 65 feet) Scotia Fundy fleets and Atlantic wide offshore companies. Activity reported under the approved plan for the 2002-2003 fishery as of January 2, 2003 indicates that 5,127 tonnes of the 6,000 tonnes total allowable catch has been caught in 4T, primarily by inshore fleets. Some of the catch was made by Scotia Fundy fleets that opted to fish their 4Vn share of the quota in 4T. As a result, 452 tonnes of quota remain to be fished in the 4Vn area this winter.

[5]                 In 1993, the Fisheries Resource Conservation Council (FRCC) was created to form a partnership between scientific and academic expertise and all sectors of the fishing industry. The FRCC makes public recommendations on matters such as allowable catch rates and conservation measures. When the fishery re-opened in 1999, on the recommendation of the FRCC, no fishing was authorized in the 4Vn area during the winter period because of concerns over the resident 4Vn cod stock. The FRCC advised that "fishing on the 4TVn cod during its over-wintering in 4Vn (November - April) should only take place to the extent that there is high confidence that catch for 4Vn (resident) cod be minimal".

[6]                 In response to the concerns of the FRCC, the Department of Fisheries and Oceans (DFO), in conjunction with the offshore fishing sector, conducted an acoustic survey/study in 2000 to examine the movement and mixing of the resident 4Vn cod. The results of this undertaking, which were available early in 2002, concluded that controlled fishing during the winter period would have a minimal impact on the resident stock. Consultations on the study were held with local fishers, including the applicant, during 2002. During and subsequent to those consultations, NOSFA expressed its concerns and uncertainties regarding the integrity of the acoustic survey and recommended to the Minister that the winter fishery in 4Vn remain closed.

[7]                 The Minister approved a 2003 winter opening in the 4Vn area for the balance of the 4TVn quotas assigned (452 tonnes) subject to conservation harvesting plans with stringent monitoring controls. The conservation harvesting plans establish fishing area restrictions and require mandatory dockside monitoring as well as third-party observer coverage at sea at all times. The 4Vn is open to direct for cod from December 15, 2002 to March 31, 2003. The 2003 scientific reviews of the status of the cod stocks in the Gulf (containing data on the minimal biomass level of the resident stocks in 4Vn) are due to be released by the end of March, 2003.

[8]                 The issue, as defined by NOSFA, is whether the Minister's decision to approve a 4Vn winter cod fishery should be reversed. The respondent characterizes the relief as a mandatory injunction. For the reasons that follow, I have concluded that the motion must be dismissed.

[9]                 The applicant's first hurdle, whether the request be for an interlocutory injunction or an interlocutory mandatory injunction, is to transcend section 22 of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, which provides:

[10]            The general principle is stated in Esquimalt Anglers' Assn. v. Canada (1988), 21 F.T.R. 304 (Esquimalt) and in other authorities of a similar nature. In Esquimalt, Cullen, J. stated:

It is clear that the Court does not have the power to issue an injunction against the Crown or Ministers of the Crown where they are acting as servants of the Crown and their functions are lawfully authorized. However, the jurisprudence is clear that where government officials are carrying out a function pursuant to a statute and act outside their authority, these 'government officials' are susceptible to being enjoined.

[11]            Conversely, where a Minister is acting within the powers granted to him by law, he is not subject to an injunction: Glenview Corp. v. Canada (1990), 34 F.T.R. 304 (Glenview Corp.), per Strayer, J., as he then was.

[12]            The applicant cites no statutory provision or regulation that was contravened by the Minister. Nor is there evidence that the Minister, in arriving at his decision, was motivated by irrelevant considerations or that he acted arbitrarily or in bad faith.

[13]            The Department of Fisheries and Oceans Act, R.S.C. 1985, c. F-15, subsection 2(1), establishes the DFO over which the Minister of Fisheries and Oceans presides. The powers, duties and functions of the Minister are set out in subsection 4(1), which provides as follows:

[14]            The Oceans Act, S.C. 1996, c. 31, heavily relied upon by the applicant, in its preamble, specifies that Canada promotes the wide application of the precautionary approach to the conservation, management and exploitation of marine resources in order to protect these resources and preserve the marine environment and that Canada recognizes that conservation, based on an ecosystem approach, is of fundamental importance. Part II of the Act deals with ocean management strategy and mandates collaboration by the Minister with various stakeholders. The general powers of the Minister include a direction to encourage activities necessary to foster understanding, management and sustainable development of oceans and marine resources. The specific ministerial powers are delineated in section 43 and are specifically stated to be subject to section 4 of the Department of Fisheries and Oceans Act. Subsection 6(1) of the Fishery (General) Regulations, SOR/93-53, enacted pursuant to paragraph 43(m) of the Fisheries Act, provides for the variation of any close time, fishing quota or limit in respect of an area or any portion of that area fixed under any of the Regulations. It would thus appear that the Minister acted within the powers granted to him by law.

[15]            The applicant here, as in Glenview Corp., has not presented, in evidence or argument, any serious challenge to the legal capacity of the Minister or his officials to open the 4Vn cod winter fishery. Accordingly, the application for an interlocutory injunction must fail on this basis. Alternatively, the elements of the test for the granting of an interlocutory injunction have not been met in any event.

[16]            The parties agree that the appropriate test for the granting of an interlocutory injunction is derived from the decisions of the Supreme Court of Canada in Manitoba (AG) v. Metropolitan Stores (MTS) Ltd., [1987] 1 S.C.R. 110 (Metropolitan) and RJR-MacDonald Inc. v. Canada (AG), [1994] 1 S.C.R. 311 (RJR-MacDonald). The elements are:

(a)        there exists a serious issue to be tried;

(b)        irreparable harm will result if the relief is not granted, and

(c)        the balance of convenience favours the granting of the relief.

[17]            NOSFA argues that it is required to demonstrate only that the claim is not frivolous or vexatious to satisfy the "serious issue" element. It submits that the potential long-term viability of fish stocks in Atlantic Canada, and all that it entails for Atlantic Canada and Canadians in general, is well beyond the threshold of a serious issue.

[18]            There are two exceptions to the low threshold required to meet the serious issue element, both of which are articulated in RJR-MacDonald. The first exception arises when the result of the interlocutory motion will, in effect, amount to a final determination of the application. The second exception deals with questions of constitutionality and does not apply to this matter. If the relief amounts to a final determination of the main proceeding, a higher standard applies and an applicant must make out a prima facie case.

[19]            NOSFA alleges a violation of the precautionary approach to conservation. No breach of any specific statutory provision or regulation is advanced in support of this allegation. It is the Oceans Act that advances the precautionary approach and as stated earlier, the Minister's powers and duties under the Oceans Act are specifically and expressly stated to be subject to his powers under the Fisheries Act.

[20]            At this stage, there exists a difference of opinion regarding the propriety of the decision to allow winter fishing in the 4Vn area. The evidence proffered by the applicant raises issues with respect to the results of the acoustic survey that suggest, "[O]ne could argue that this assumption may not be correct" (emphasis mine) and "[A]ny directed fishery in 4TVn may target far more than 3%-5% of 4Vn resident stock especially if the current assessment of 1659t is inaccurate" (emphasis mine). The expert opinion evidence states that the DFO has, "failed to adequately examine the potential adverse effects of this opening on commercial groundfish and invertebrates". A difference of opinion, without more, does not constitute a legal issue. The quality of the Minister's decision (in the absence of some indication that he lacked jurisdiction to make such a decision or was motivated by irrelevant considerations or acted arbitrarily or in bad faith) does not constitute a serious issue whether the threshold with respect to a "serious issue" is low or that of a prima facie case. Even on a preliminary assessment of the merits, on the basis of the record as it presently exists, I am unable to conclude that there is a serious issue.

[21]            Regarding irreparable harm, the applicant argues that it is the nature or quality, as opposed to the quantity, of the harm that is of concern. NOSFA maintains that not only can the harm not be compensated by way of damages, but it is substantial. The difficulty, it contends, is that as yet, it is unknown whether the stock is above, near to or below a critical biomass level. Additionally, other Scotian shelf cod stocks and other species, specifically white hake, could be negatively impacted by this fishery. If any of these stocks are at levels where their recovery is in doubt, the winter 4Vn cod fishery could push them beyond the point where recovery is possible.

[22]            The concern with respect to the long-term future viability of fish stocks in Atlantic Canada, while real, is, on the basis of the evidence before me, speculative and based on opinion. Moreover, there is no allegation of harm to the applicant directly. The situation is not dissimilar to that in Esquimalt wherein the second element of the test was not satisfied because the association had not established irreparable harm as far as the [applicant] was concerned. RJR- MacDonald also cautions that it is the applicant's own interests that must be adversely affected. There is no evidence as to how NOSFA will be directly affected if the relief is not granted. Further, and despite the expressed concerns, neither is there evidence that a permanent loss of natural resources will be the result if the challenged activity is not enjoined. NOSFA has not met the onus of establishing that irreparable harm will result.

[23]            NOSFA submits that the final element of the test, the balance of convenience, lies with the applicant. This is so because if the injunction is not granted, success on the judicial review will be hollow if the offshore fleet has already fished its quota. This maypush stocks beyond the point where recovery is not likely and the short-term interests of the offshore fleet will have been realized at the long-term expense of the ecosystem, the fish stocks and other sectors of the fishing industry. If, on the other hand, the injunction is granted and the 2003 stock status reports prove NOSFA wrong, the offshore fleet will merely be delayed in catching its quota.

[24]            An action taken by the Crown is prima facie deemed to be in the public interest: Tsartlip Indian Band v. Pacific Salmon Foundation (1988), 24 F.T.R. 304. When a private applicant alleges that the public interest is at risk that harm must be demonstrated. This is because private applicants are normally presumed to be pursuing their own interests rather than those of the public at large. In considering the balance of convenience and the public interest, it does not assist an applicant to claim that a given government authority does not represent the public interest. Rather, the applicant must convince the court of the public interest benefits which flow from the granting of the relief sought: RJR-MacDonald.

[25]            When a public authority is prevented from exercising its statutory powers, it can be said that the public interest, of which that authority is the guardian, suffers irreparable harm: Attorney General of Canada v. Fishing Vessel Owners' Association of British Columbia, [1985] 1 F.C. 791 (C.A.). A court should not, as a general rule, attempt to ascertain whether actual harm would result. To do so would in effect require judicial inquiry into whether the government is governing well, since it implies the possibility that government action does not have the effect of promoting the public interest and that the restraint of the action would therefore not harm the public interest: RJR-MacDonald.

[26]            In view of the role and responsibility of the Minister in authorizing a certain fishery and the inherent public interest in the Minister's decision, the public policy component of the Minister's decision is paramount and must prevail over the more private and, at this point, somewhat speculative concerns of the applicant.

[27]            Here, NOSFA, in effect, seeks to have the court manage or police the fishery. That is not the function of the court. Moreover, review of ministerial decision making of this nature cannot be accomplished by interlocutory relief. It is the Minister who is vested with the statutory power to decide. The court is in no position, on this motion, to rule on the conflicting positions of the parties.

[28]            NOSFA, having failed to satisfy the requisite elements of the test for interlocutory injunctive relief, cannot succeed. The motion is dismissed. The Minister did not request costs and in the circumstances, no costs are awarded.

      "Carolyn Layden-Stevenson"

                                                                                                           Judge                             

Toronto, Ontario

January 15, 2003

                          FEDERAL COURT OF CANADA

                                       TRIAL DIVISION

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                   T-2172-02

STYLE OF CAUSE: NORTH OF SMOKEY FISHERMEN'S

ASSOCIATION v. THE ATTORNEY GENERAL OF CANADA ET AL

PLACE OF HEARING:                                   HALIFAX, NOVA SCOTIA

DATE OF HEARING:                                     JANUARY 9. 2003

REASONS FOR ORDER BY :                     LAYDEN-STEVENSON J.

DATED:                      JANUARY 15, 2003

APPEARANCES:

ANDREW N. MONTGOMERY                                    FOR APPLICANT

REINHOLD ENDRES, QC                                             FOR RESPONDENTS

SOLICITORS OF RECORD:

METCALF & COMPANY                                             FOR APPLICANT

HALIFAX, NOVA SCOTIA

MORRIS ROSENBERG                                                 FOR RESPONDENTS

DEPUTY ATTORNEY GENERAL OF CANADA