Marine Research Inc. v. Canada (Attorney General), 2005 FC 1287

Date: 20050929

Docket: T-1963-04

Citation: 2005 FC 1287

BETWEEN:

MARINE RESEARCH INC.,

entity duly incorporated under the laws

of the province of New Brunswick

Applicant

- and -

ATTORNEY GENERAL OF CANADA

Respondent

REASONS FOR ORDER

PINARD J.

[1]        This is an application for judicial review of a decision of the Department of Fisheries and Oceans (the DFO), in a letter dated October 7, 2004, refusing to issue a fishing licence for  scientific purposes to Recherches Marines Inc.

[2]        On August 12, 2004, the DFO received a licence application pursuant to section 52 of the Fisheries Regulations (General), SOR/93-53 (the Regulations), filed by the applicant, an entity duly incorporated under the New Brunswick Business Corporations Act.  The application for a fishing licence for scientific purposes was received at the DFO regional office in the Gulf area.  Marine Research said it wanted to collect the information needed to produce and market fishing cards for fishing professionals, setting out the distribution of various biological and commercial categories of snow crab in the area of fishing zone 12.  This was the first time that the DFO had received an application of this kind in the Gulf area and, in its correspondence with the applicant, the DFO asked for additional information.

[3]        In particular, the DFO wanted to know whether the applicant had consulted and obtained the support of fishermen in certain zones for its project.  By a letter dated September 2, 2004, the applicant informed the DFO that it had not consulted these fishermen.

[4]        By a letter dated September 17, 2004, the DFO informed the applicant’s counsel that additional information was required to fully assess the licence application.  The DFO further informed the applicant of the conditions that would be applicable if a licence were issued, also urging the latter to initiate discussions about the possibility of setting up a joint project with the Department.

[5]        On September 24, 2004, counsel for the applicant commenced two court proceedings: she filed an application for a writ of mandamus ordering the DFO to make a decision on the licence application and a motion that the application in question be a specially-managed proceeding.

[6]        On September 29, 2004, counsel for the applicant informed the Court that the DFO would be given no further information in support of the licence application.  On the following day, my colleague Harrington J. dismissed the motion for a specially-managed proceeding (2004 FC 1347), making the following comment in his decision:

[10]         The fact remains that the Minister has been informed that he will receive no new information enabling him either to agree or refuse to grant the permit speedily.  Consequently, if no decision has been given to the applicant on October 8, 2004, it will be opened to the applicant to make a motion for mandamus.  The reasons at bar should not be interpreted as a direction to the Minister requiring him to make a decision before that date.

[7]        On October 7, 2004, in view of the applicant’s failure to provide all the information requested, the DFO rejected the licence application and notified counsel for the applicant by a letter dated the same day.  In that letter, Charles Gaudet, Director of Business Systems and Strategic Planning, informed the applicant that, in his view, the latter had agreed to the Department making a decision on the licence application based solely on the information provided to date and, without the additional information requested, the Department unfortunately could not complete its assessment of the application.  On October 14, 2004, Harrington J. issued a direction in which he indicated that, in his opinion, the DFO, in its correspondence of October 7, 2004, had rejected the licence application by Marine Research.  (The direction further indicated that, if the Minister did not agree with this view, the application for a writ of mandamus would be heard on October 19, 2004.)

[8]        On October 15, 2004, the DFO confirmed that the letter of October 7, 2004, indicated [TRANSLATION] “the Minister’s decision not to issue the licence sought by Marine Research”.

[9]        By a letter dated November 3, 2004, the DFO again explained to the applicant what information was required and again informed it of the conditions that would be applicable if a licence were issued, suggesting that the applicant hold a meeting to [TRANSLATION] “discuss and clarify information and positions”.

[10]      On November 4, 2004, counsel for the applicant filed the application for judicial review at bar.

                                                                   * * * * * * * *

[11]      The relevant provision of the Fisheries Act, R.S.C. 1985, c. F-14 (the Act), is the following:

[12]      The relevant provisions of the Regulations are the following:

  51. No person shall fish for experimental, scientific, educational or public display purposes unless authorized to do so under a licence.

  51. Il est interdit de pêcher à des fins expérimentales, scientifiques, éducatives ou pour exposition au public à moins d’y être autorisé par un permis.

  52. Notwithstanding any provisions of any of the Regulations listed in subsection 3(4), the Minister may issue a licence if fishing for experimental, scientific, educational or public display purposes would be in keeping with the proper management and control of fisheries.

  52. Malgré les dispositions des règlements énumérés au paragraphe 3(4), le ministre peut délivrer un permis si la pêche à des fins expérimentales, scientifiques, éducatives ou pour exposition au public est en accord avec la gestion et la surveillance judicieuses des pêches.

                                                                     * * * * * * * *

[13]      The case at bar raises the following issues:

            1.         Does the Minister have unlimited jurisdiction to issue licences for scientific purposes?

            2.         When the Minister made his decision to reject the licence application, did he consider irrelevant matters or act in bad faith or in a discriminatory or arbitrary manner?

            3.         Did the Minister observe the rules of natural justice and fairness in assessing the licence application made by Marine Research?

* * * * * * * *

            1.         Does the Minister have unlimited jurisdiction to issue licences for scientific purposes?

[14]      Under sections 7 of the Act and 51 and 52 of the Regulations, it is clear that the Minister has jurisdiction to issue fishing licences for scientific purposes.  The Minister’s power to issue a fishing licence is discretionary: there is nothing in law requiring him to do so.

[15]      The applicant argued that the exercise by the Minister of his or her discretionary power to issue a fishing licence for scientific purposes is limited by section 52 of the Regulations.  In other words, when the fishing proposed in connection with an application for a fishing licence for  scientific purposes is consistent with the proper management and control of fisheries, the Minister is bound to issue the licence.  I do not share that view.  The only limitation imposed on the Minister in exercising his or her discretion is a duty to base the decision on relevant considerations, avoid arbitrariness and act in good faith (see Comeau’s Sea Foods v. Canada (Minister of Fisheries and Oceans), [1997] 1 S.C.R. 12, at paragraphs 34 and 36, and Delisle v. Canada, [1991] F.C.J. No. 459 (T.D.) (QL)).

[16]      The applicant maintained that Charles Gaudet did not have the necessary expertise to make the decision in issue.  I do not agree.  It is accepted in law that the Minister may delegate the right to act on the issuance of scientific licences to officials in his Department with the necessary expertise.  We must assume that Mr. Gaudet, who holds the position of Director of Business Systems and Strategic Planning, and is responsible for issuing licences in the region, has the expertise required for this purpose (R. v. Harrison, [1977] 1 S.C.R. 238, at 245-246).  This presumption is reinforced by the fact that Mr. Gaudet was involved with policies on licence issuance for a period of some six years between 1984 and 1990 and has held the position of Director of Administrative Systems and Strategic Planning for the DFO since April 2002.

            2.         When the Minister made his decision to reject the licence application, did he consider irrelevant matters or act in bad faith or in a discriminatory or arbitrary manner?

[17]      The standard of review applicable to the decision in issue is that of the patently unreasonable decision (Tucker v. Canada (Minister of Fisheries and Oceans), November 16, 2000, [2000] F.C.J. No. 1868, affirmed by Tucker v. Canada, [2001] FCA 384).  First, the Minister must base his decision on relevant factors, avoid arbitrariness and act in good faith, as the Supreme Court of Canada explained in Comeau’s Sea Foods, supra.  The result is an administrative system based primarily on the Minister’s discretion.

[18]      The applicant refused to consult with stakeholders in the fishing industry, feeling that its project was a private for-profit operation and the DFO was not competent to require that a consultation be held.  The evidence shows that the DFO commonly consults with persons in the industry who could be affected by the decision.  On November 3, 2004, the DFO clearly identified the relevant stakeholders in the industry.  In my opinion, the applicant did not establish that it was patently unreasonable for the DFO to ask that a consultation be held.

[19]      The DFO asked for information on the potential impact of the project, including the number of stations anticipated, according to the type of fishing gear and places where samples would be taken.  Sampling procedures are documents which contain information pertaining, for instance, to methodology and details of the research activity, like the number of stations, type of trawl net, length of each line, crab parts measured on board the vessel and so on.  Obtaining these procedures is relevant in particular in that reviewing them enables the DFO to determine whether all steps have been taken to minimize the impact on species and their habitat.  The applicant refused to provide the sampling procedures on the ground that they were the applicant’s intellectual property.  The respondent submitted that whatever may be the rights held by a licence applicant over a given document, under paragraph 8(1)(a) of the Regulations, the DFO, is entitled to ask for a copy of the document.  The DFO is entitled to request documents and information which can assist it in making its decision.  Further, the evidence shows that decisions on applications for fishing licences for scientific purposes are made following consultations between several DFO officials with various fields of expertise.  Following these consultations, the DFO science sector said that, in its opinion, in order to assess the possible impact of the applicant’s project, the DFO had to examine the procedures.  In my opinion, the applicant’s allegation that the sampling procedures are not relevant to the determination of the impact of its project is not supported by the evidence.

[20]      Under paragraphs 22(1)(h), (i) and (j) of the Regulations, the Minister is entitled to impose a condition on a licence concerning “the type, size and quantity of fishing gear and equipment that is permitted to be used and the manner in which it is permitted to be used”, “the specific location at which fishing gear is permitted to be set” and “the distance to be maintained between fishing gear”.  By letters of September 17 and November 3, 2004, the DFO notified the applicant that it intended to impose a condition regarding the fishing gear and its use, stating that [TRANSLATION] “the scientific procedures and coordinates of the geographic limits of the project would be part of the licence conditions”.  Without specific information on the manner in which the applicant intended to use the fishing gear, the Minister was not able to exercise the power conferred on him by paragraphs 22(1)(h), (i) and (j) of the Regulations.

[21]      Paragraph 22(1)(c) of the Regulations provides that the Minister is entitled to specify a condition in a licence regarding “the waters in which fishing is permitted to be carried out”.  I do not think it is patently unreasonable for the DFO to require the geographical coordinates of the project in order to include them in the licence conditions.

[22]      By its letters of September 17 and November 3, 2004, the DFO notified the applicant that [TRANSLATION] “the information collected by the applicant in fishing activities had to be provided to the DFO”.  Under paragraph 22(1)(t) of the Regulations, the DFO is entitled to specify in a licence a condition concerning “the time within which findings and data obtained as a result of fishing for an experimental or scientific purpose are to be forwarded to the Minister”.  In view of this provision in the Regulations, I do not consider the Minister’s request unreasonable.

[23]      In brief, the Minister’s decision to reject the licence application is far from patently unreasonable: quite the contrary.  It is the actions of the applicant – or rather its inaction – that prevented the Minister from exercising his discretion.  The Minister imposed conditions, which he was entitled to do under the Regulations, and there is no evidence that he acted in bad faith or arbitrarily.

            3.         Did the Minister observe the rules of natural justice and fairness in assessing the licence application made by Marine Research?

[24]      The applicant submitted that the Minister made no effort to discuss the licence application with representatives of Marine Research.  Here again, I cannot accept this.  In a letter dated September 17, 2004, the DFO indicated to the applicant its desire to discuss the project with the latter.  The applicant’s reply to this was to initiate proceedings for the issuance of a writ of mandamus.  It seems clear to the Court that the applicant had no wish to have any discussions with the DFO.  This is confirmed by subsequent events.  Following the applicant’s discontinuance of the mandamus proceedings on October 28, 2004, the DFO sent the applicant another letter dated November 3, 2004.  In that letter, the DFO indicated to the applicant in particular that it was prepared to meet with the latter to [TRANSLATION] “discuss and clarify information and positions”.  On the same day, counsel for the applicant filed this application for judicial review.  I consider that the DFO made sufficient efforts to give the applicant an opportunity to explain its project; the rules of natural justice applicable in the context of a licence application were thus fully observed.

[25]      For all these reasons, the application for judicial review is dismissed.

OTTAWA, ONTARIO

September 29, 2005

Certified true translation

François Brunet, LLB, BCL

                                                             FEDERAL COURT

                                                      SOLICITORS OF RECORD                             

COURT No.:                                                              T-1963-04

STYLE OF CAUSE:                                                  MARINE RESEARCH INC., an entity duly incorporated under the laws of the province of New Brunswick v. ATTORNEY GENERAL OF CANADA

PLACE OF HEARING:                                            Fredericton, New Brunswick

DATE OF HEARING:                                              September 6, 2005

REASONS FOR ORDER BY:                                 The Honourable Mr. Justice Pinard

DATED:                                                                     September 29, 2005

APPEARANCES:

Brigitte Sivret                                                                FOR THE APPLICANT

Ginette Mazerolle                                                         FOR THE RESPONDENT

SOLICITORS OF RECORD:

Brigitte Sivret                                                                FOR THE APPLICANT

Bathurst, New Brunswick

John H. Sims, Q.C.                                                      FOR THE RESPONDENT

Deputy Attorney General of Canada