Date: 20050921
Docket: T-1699-04
Citation: 2005 FC 1291
BETWEEN:
THOMAS J. FENNELLY
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
KELEN J.
[1] This is an application for judicial review of a decision of the Minister of Fisheries and Oceans (Minister) dated August 25, 2004 in which the applicant's request for re-issuance of an exploratory crab licence was denied.
FACTS
[2] The applicant, a fisherman, has been engaged in the commercial fishery in Newfoundland since 1972. He operates two boats: a 75-foot stern trawler named the M.V. "Bear Cove Point", and a 95-foot multi-purpose trawler named the M.V. "Sandy Joanne".
(a) The fishing licences
[3] In 1995, the applicant was issued an exploratory crab licence for fishing snow crab in the North Atlantic Fisheries Organization (NAFO) Divisions 3LMNO, offshore Newfoundland and outside Canada's 200-mile limit. The licence was issued for use on the M.V. "Bear Cove Point" and has been re-issued annually since 1996.
[4] In 1996, the applicant was issued an exploratory scallop licence for harvesting scallops in NAFO Divisions 3LNO outside the 200-mile limit. The licence was issued for use on the M.V. "Sandy Joanne" and has been re-issued annually since 1997.
[5] On June 26, 1998, the applicant sent a letter to the Department of Fisheries and Oceans (DFO) requesting permission to conduct a snow crab "survey" in NAFO Division 3N outside the 200-mile limit to determine whether there were stocks of snow crab in that area. The request was approved and an exploratory crab licence was issued to the applicant on October 30, 1998 (Second Crab Licence) for 30 days. The licence, which was issued for use on the M.V. "Sandy Joanne", was valid from November 1, 1998 to November 30, 1998. An amendment was issued on November 30, 1998, extending the period of validity by 15 days to December 15, 1998.
[6] The exploratory work conducted by the M.V. "Sandy Joanne" was successful, landing approximately 200,000 pounds of crab in 45 days. In 1999, the applicant applied for re-issuance of both exploratory crab licences. The crab licence for the M.V. "Bear Cove Point" was re-issued. The crab licence for the M.V. "Sandy Joanne" was refused. In a letter dated February 24, 2000, DFO provided the following rationale for refusing to re-issue a licence for the M.V. "Sandy Joanne":
It is necessary to clarify that you were authorized to use the "Sandy Joanne" in the exploratory crab fishery outside 200 miles as a temporary replacement for your vessel "Bear Cove Point" which you are currently eligible to use in the exploratory snow crab fishery in NAFO Divisions 3NO. The approval to use the "Sandy Joanne" as a temporary replacement in the 1998 exploratory fishery outside 200 miles does not accord the "Sandy Joanne" any status in the crab fishery.
(b) The first appeal
[7] The applicant appealed the decision not to re-issue the licence to the Regional Licence Appeal Committee (Regional Committee), a body established under the Commercial Fisheries Licensing Policy for Eastern Canada, 1996. The Regional Committee provides an internal appeal process for those who are dissatisfied with the decisions of officials from DFO. The Regional Committee recommended to the Regional Director General of DFO that the applicant's appeal be denied. The Regional Director General accepted this recommendation and notified the applicant of his negative decision by letter dated April 5, 2002.
[8] The applicant appealed this decision to the Atlantic Fisheries Appeal Board (Appeal Board), another appellate body established under the Commercial Fisheries Licensing Policy for Eastern Canada, 1996. The role of the Appeal Board is set out in Chapter 7, paragraph 35(7)(c) of the policy as follows:
The Board will make recommendations to the Minister on licensing appeals rejected through the Regional Licensing Appeal Structure by:
i) determining if the appellant was treated fairly in accordance with the Department's licensing policies, practices and procedures; and
ii) determining if extenuating circumstances exist for deviation from established policies, practices or procedures
[9] At the appeal hearing, a representative from DFO submitted that the Second Crab Licence was merely an authorization for the applicant to use the M.V. "Sandy Joanne" as a replacement vessel for the M.V. "Bear Cove Point", as opposed to an independent crab licence. Accordingly, the applicant's 1999 request for "re-issuance" of the Second Crab Licence was treated by the Department as a request for a new licence. DFO argued that because there had been a moratorium on issuing new exploratory crab licences since 1996, the Minister was justified in refusing the applicant's request for a new licence.
[10] The applicant disputed DFO's contention that the Second Crab Licence was merely an authorization to use the M.V. "Sandy Joanne" as a replacement vessel for the M.V. "Bear Cove Point". The applicant explained that he had sought an independent crab licence for the M.V. "Sandy Joanne" because the scallop catch rates were poor and he needed to find an alternate use for the vessel. Further, he noted that each licence bore a different licence number and that the department had never informed him that he would have to "bank" or cease using the M.V. "Bear Cove Point" in order to use the M.V. "Sandy Joanne" to fish crab. In the applicant's view, he had been issued an independent licence in 1998 and, based on existing DFO policies and practices, he was entitled to have the licence re-issued annually.
(c) Report of first Appeal Board
[11] In a report dated April 29, 2002, the Appeal Board made the following recommendation to the Minister:
RECOMMENDATION: Appeal Denied
The Board feels that Mr. Tom Fennelly has been treated fairly in that no new exploratory crab licence has been issued since 1998 [typographical error - should read 1996].
However, the board feels that based on the work that Mr. Fennelly has done and the benefits derived for other Newfoundland crab fishers if new licences were issued a second exploratory crab licence be granted to this enterprise.
(d) First Minister's Decision and first application to Federal Court
[12] The Minister accepted the Appeal Board's recommendation and, by letter dated September 6, 2002, denied the applicant's request for re-issuance of the Second Crab Licence. The applicant challenged the Minister's decision by way of judicial review. See Fennelly v. Canada(Minister of Fisheries and Oceans), [2003] F.C.J. No. 1398 (F.C.).Madam Justice Heneghan allowed the application on the basis that both the Appeal Board and the Minister failed to consider whether the M.V. "Sandy Joanne" was operating as a replacement vessel or under an independent licence issued in October 1998. She held at paragraph 43:
This was an essential factual determination since, as the Appeal Board observed at the beginning of its report, the Minister had not approved any "new licences" since 1996. If the Applicant was not requesting a new licence but simply the reissuance of a previously held licence, the applicable policies could have affected the Appeal Board's recommendation and the Minister's ultimate decision.
(e) Second Appeal Board
[13] Madam Justice Heneghan remitted the matter back to the Minister for re-determination in accordance with her reasons. The Minister, in turn, convened a second and differently constituted Appeal Board to "hear the entire case and to specifically determine the status of the M.V. SANDY JOANNNE, whether it was operating as a replacement vessel or under an independent licence issued in October 1998." The hearing took place on May 26, 2004 in Halifax. At the hearing, DFO maintained its position that the Second Crab Licence was not an independent licence, but rather an authorization to use the M.V. "Sandy Joanne" as a replacement vessel for the M.V. "Bear Cove Point".
[14] The Appeal Board concluded that a second independent licence had been issued to the applicant, however, it recommended that the licence not be renewed. The Board's full recommendation reads:
RECOMMENDATION: Appeal Denied
The Board in accordance with documents and evidence presented at the hearing addressed the issue of whether or not Exploratory licenceNF-956-98 [...] was issued as a replacement vessel or as a new licence.
The Board finds no evidence that the licence was issued as a replacement vessel for the "Bear Cove Point". It was clearly issued to the "Sandy Joanne". There was no documentation to support a request for a replacement vessel and the Department could not validate their claim that it was a replacement vessel.
The Board submits that while DFO may not have intended to issue an independent licence for the "Sandy Joanne", which is demonstrated by the fact that no amendment was made to the 1997/98 Crab Management plan, the fact remains that an independent licence was issued.
In the opinion of the Board, Mr. Fennelly should not have received a separate licence for the "Sandy Joanne" in 1998, therefore the Board recommends that it not be renewed.
(f) Second Decision by the Minister
[15] Upon receiving the recommendation from the Appeal Board, the Minister decided on August 20, 2004 as follows (and I paraphrase):
1. the licence issued to use the "Sandy Joanne" was issued only for the purpose of a specific survey related to crab;
2. this licence was for a short period i.e. 30 days (extended by 15 days);
3. the licence would have been issued to the "Bear Cove Point" which is the vessel used by the applicant for fishing crab. At that point, the applicant had finished catching his 100 ton crab quota using the "Bear Cove Point" and the vessel was being used by another company to fish another species and was not available for the survey work;
4. since the applicant's vessel the "Sandy Joanne" was available it was permitted to do the survey work for crab. If the "Bear Cove Point" had been available, this would have been the vessel permitted to do the crab survey;
5. in 1999 the applicant received an allocation of 125 tons of snow crab to be fished with the "Bear Cove Point" for the 1999 fishing season;
6. under the Policy, while licence holders carrying out experimental or exploratory fisheries are given priority when additional licences are issued, no additional snow crab licences were approved or issued in 1999;
7. the issuance of the licence to the applicant for the "Sandy Joanne" did not carry with it any commitment that a similar licence would be issued in the future; and
8. "Clearly the "Sandy Joanne" was used very temporarily for a specific snow crab survey, which was conducted in late 1998".
[16] Based on the above, the applicant's request for a second snow crab licence for the "Sandy Joanne" was denied by the Minister.
[17] By letter dated August 25, 2004, the applicant was informed that his appeal had been denied. The letter reads, in part:
The Minister has made a decision based on a thorough review of all available information and I regret to inform you that he has denied your appeal. The Minister concluded that the issuance of an exploratory licence, especially one issued for survey purposes, does not carry with it any commitment that a similar licence would be issued in subsequent years. The licence for survey purposes permitted the temporary use of the vessel, the "Sandy Joanne", for a specific snow crab survey, which was conducted in late 1998 and does not imply any further right or privilege for a similar licence upon its expiration.
(g) Second application to Federal Court
[18] The applicant commenced the present application for judicial review on September 17, 2004. He seeks an order setting aside the Minister's decision of August 25, 2004 and referring the matter back to the Minister for re-determination in accordance with the reasons of this Court.
ISSUES
[19] The following issues are raised in this application for judicial review:
1. What standard of review applies to the Minister's decision not to re-issue the applicant's second crab licence?
2. Is the Appeal Board's recommendation reviewable, and if so, on what standard?
3. Did the Appeal Board fail to fulfill its mandate for determining whether the applicant was treated fairly?
4. Did the composition and structure of the Appeal Board raise a reasonable apprehension of bias?
ANALYSIS
Issue No. 1
What standard of review applies to the Minister's decision not to re-issue the applicant's second crab licence?
[20] The Minister's discretion to issue fishing licences derives from section 7 of the Fisheries Act, R.S.C. 1985, c. F-14 (Act), which provides:
| 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.
(2) Except as otherwise provided in this Act, leases or licences for any term exceeding nine years shall be issued only under the authority of the Governor in Council.
|
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.
(2) Sous réserve des autres dispositions de la présente loi, l'octroi de baux, permis et licences pour un terme supérieur à neuf ans est subordonné à l'autorisation du gouverneur général en conseil.
|
[21] In Tucker v. Canada(Minister of Fisheries and Oceans), [2000] F.C.J. No. 1868 (F.C.T.D.), Mr. Justice Rothstein (ex officio) determined that a decision made under section 7 of the Act is reviewable on the standard of patent unreasonableness. Applying the pragmatic and functional analysis, I have come to the same conclusion.
[22] The first factor to consider in this analysis is the presence or absence of a privative clause or statutory right of appeal. The Act does not contain a privative clause with respect to the Minister's discretionary decisions, nor does it provide for a statutory right of appeal. Accordingly, this factor is neutral.
[23] The second factor, the relative expertise of the decision-maker, suggests a less searching standard of review. The Minister has considerable expertise with respect to the issuance of fishing licences. See Tucker, supra at paragraph 13. Moreover, "the fact that the formal-decision maker is the Minister is a factor militating in favour of deference." See Baker v. Canada(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paragraph 59.
[24] The third and fourth factors also suggest greater curial deference. The purpose of section 7 of the Fisheries Act is to provide the Minister with "absolute discretion" to manage the fishery. As discussed by Mr. Justice Major in Comeau's Sea Foods Ltd. v. Canada(Minister of Fisheries and Oceans), [1997] 1 S.C.R. 12 at paragraph 37:
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
[25] In exercising his discretion under section 7, the Minister is required to consider and balance a variety of competing policy interests. Moreover, while the decision involves consideration of relevant laws and policies, it is also very fact-laden. Balancing all of these factors, I conclude that the standard of review applicable to the Minister's decision is patent unreasonableness.
[26] In Area Twenty three Snow Crab Fisher's Association et al. v. The Attorney General of Canada et al. 2005 FC 1190, Mr. Justice Mosley came to the same conclusion with respect to a Minister's decision under section 7 of the Fisheries Act at paragraph 22:
All these considerations indicate that the standard of review of the exercise of the Minister's discretion under section 7 of the Fisheries Act is patent unreasonableness. In Voice Construction Ltd. v. C.G.W.U., Local 92, [ 2004] 1 S.C.R. 609 at para. 18, the Supreme Court said that to be patently unreasonable, the decision must be so clearly wrong that "the result must almost border on absurd".
Issue No. 2
Is the Appeal Board's recommendation reviewable, and if so, on what standard?
[27] In the present case, the issues raised by the applicant focus on the non-binding recommendation of the Appeal Board. The role of the Appeal Board and the relationship between its recommendation and the decision of the Minister were discussed by the Federal Court of Appeal in Jada Fishing Co. v. Canada (Minister of Fisheries and Oceans) (2002), 288 N.R. 237 at paragraphs 12 and 13 as follows:
It is clear that the Minister is empowered under section 7 of the Fisheries Act, R.S.C. 1985, c. F-14, with absolute discretion to make decisions with regard to fishing licences. The Panel [Appeal Board], on the other hand, was without statutory authority and merely made recommendations which the Minister was entitled to accept or reject. Accordingly, the Panel's recommendations are not in themselves prima facie reviewable. In this case, due to the breadth of the Notice of Application for Judicial Review before Pelletier J., I am well satisfied that this Court can review a discretionary decision, based, in part, upon the Panel's recommendation.
The present appeal seeks to set aside the Reviewing Judge's order, and refers only to the "decision" of the Panel and its conduct, without reference to the Minister. However, the Minister's decision of April 3, 1998, still stands, and in any event, the decision or recommendation of the Panel is inexorably connected to his decision, being without legal effect unless "adopted" by the Minister as one of the basis for his decision. In my analysis, this appeal can only continue as a review of the Minister's decision, albeit under the guise of an attack on the Panel's recommendation, based on paragraph 18.1(4) of the Act as a review of the exercise of Ministerial discretion.
[28] In Fennelly, supra, Madam Justice Heneghan concluded, based on the Court of Appeal's decision in Jada Fishing, supra, that the recommendation of the Appeal Board was reviewable. She held at paragraphs 46 and 47:
In the present case, the decision under review is the Minister's decision, communicated in the letter of September 6, 2002. That letter, after reference to the Appeal Board hearing conducted on April 29, 2002, said that the Minister "has made a decision based on a thorough review of all available information ...". In my opinion, it is reasonable to infer that one basis for the Minister's decision was the report and recommendation of the Appeal Board. This is consistent with the purpose of the Licensing Policy that created the Appeal Board, that the Appeal Board's report and recommendation should inform the Minister's ultimate decision.
It follows, in my opinion, that the Appeal Board's report and recommendation can be reviewed by this Court, as occurred in Jada Fishing, supra, when the Federal Court of Appeal examined the reasonableness of the Appeal Board's recommendation and respect for the requirements of procedural fairness.
[29] In this case, the letter from the Assistant Deputy Minister dated August 25, 2005 uses the same language: "the Minister has made a decision based on a thorough review of all available information..." Accordingly, I find, as did Madam Justice Heneghan, that the Appeal Board's decision is reviewable as it is reasonable to infer that it formed one of the bases for the Minister's decision. (See also Decker v. Canada(Attorney General) (2004), 259 F.T.R. 216 (F.C.) per O'Keefe J.).
[30] Having concluded that the recommendation of the Appeal Board is reviewable, I now consider the applicable standard of review. The applicant submits that the standard is that of reasonableness simpliciter. Based on the decision in Jada Fishing, supra, I agree. Mr. Justice Malone for the Court held at paragraph 14 that:
Applying the pragmatic and functional approach established in Baker, supra, I agree with the Reviewing Judge that the most important factor in this case is the significant impact of the decision on the appellants. In my analysis, the standard of review of the Panel's discretionary recommendations should be reasonableness, and following Baker, supra, the recommendations would be unreasonable if not supported by reasons that could stand up to a somewhat probing examination.
[31] In concluding that the appropriate standard of review was reasonableness simpliciter, Mr. Justice Malone also noted that the Panel's discretion is not as broad as that of the Minister under section 7 of the Fisheries Act.
[32] Accordingly, the Court will assess the Appeal Board's recommendation against the reasonableness standard.
Issue No. 3
Did the Appeal Board fail to fulfill its mandate for determining whether the applicant was treated fairly?
[33] The only basis upon which the applicant submitted that the Minister's decision should be set aside, was that the Appeal Board failed to fulfill its mandate for determining whether the applicant was treated fairly.
[34] The role of the Appeal Board is to make recommendations to the Minister on licensing appeals by determining if the appellant was treated fairly in accordance with the department's licensing policies, practices and procedures and if there are any extenuating circumstances which exist for deviation from established policies, practices and procedures.
(a) Failure to apply policies
[35] The applicant submits the Appeal Board in this case did not conduct any analysis of fairness with respect to DFO policies. The applicant states that the Board failed to consider:
1. subsection 22(4) of the Commercial Fisheries Licensing Policy for Eastern Canada, 1996 which provides that "[h]olders of exploratory licences may be given priority to receive regular licences for the same fisher.";
2. New Emerging Fisheries Policy (September 2001), page 5, section 3, no.8 which states that "Exploratory licence holders (Stage II) will be given priority for regular licences."; and
3. the practice that up to 1999 all exploratory crab licences in the greater that 65' category were renewed.
[36] The applicant states that he brought these policies and practices to the attention of the Appeal Board, but that they are not addressed in the recommendation. The Court is of the view that the fact that the Appeal Board did not refer specifically to the policies in its recommendation does not mean that they were overlooked. The relevant policies are listed by the Appeal Board in the summary that precedes the recommendation (including the Commercial Fisheries Licensing Policy for Eastern Canada, 1996, the Crab Management Plan and the New Emerging Licensing Policy). They were obviously considered by the Board.
[37] Moreover, the overriding DFO policy is that there was a moratorium on new crab fishing licences, i.e. there were no new crab fishing licences issued in 1999. Accordingly, the policy that holders of exploratory licences may be given priority to receive regular licences for the same fishery does not apply since there were no new regular licences being awarded. The 1999 Crab Management Plan did not provide for any new licencees. This conclusion is self-evident. No fairness analysis in this respect was necessary. The Appeal Board concluded:
In the opinion of the Board, Mr. Fennelly should not have received a separate licence for the "Sandy Joanne" in 1998, therefore the Board recommends that it not be renewed.
[38] Other DFO policies submitted to the Appeal Board make clear that fishers, such as the applicant, are not automatically entitled to the re-issuance of their licences. For example:
(i) Subsection 7(1) of the Fisheries Act provides that "fishing licences are issued at the discretion of the Minister."
(ii) Subsection 16(2) of the Fishery (General) Regulations, F-14 - SOR/93-53states that "the issuance of a document of any type to any person does not imply or confer any right or privilege for that person to be issued a document of the same type or any other type."
(iii) Subsection 22(3) of the Commercial Fisheries Licensing Policy for Eastern Canada, 1996 provides that "the issuance of an exploratory licence to a person does not imply any further commitment by the Minister to issue a similar licence to the same person upon expiry of the exploratory licence."
[39] The evidence is that there had been a moratorium on the issuance of crab licences since 1996 and that no other enterprise held more than one exploratory crab licence for NAFO Divisions 3LNO outside 200 miles. Furthermore, there was nothing to suggest that officials from DFO had made representations to the applicant that the Second Crab Licence, which was valid for 30 days, would be re-issued in the future. Given the evidence that was before the Appeal Board, I cannot conclude that its recommendation to deny the applicant's appeal was unreasonable or unfair. Indeed, this Court has confirmed on many occasions that a fishing licence is a privilege granted by the Minister and that the licence holder has no vested right to renewal. See Re Joys and Minister of National Revenue (1995), 128 D.L.R. (4th) 385 (F.C.A.); Tucker, supra; Everettv. Canada(Minister of Fisheries and Oceans), [1994] F.C.J. No. 418 (F.C.A.).
(b) Reasonable or legitimate expectation
[40] The Court finds that the applicant had no reasonable or legitimate expectation to a second commercial crab fishing licence in 1999 because he had been granted a 30 day licence in 1998 to survey unexplored waters for crab. The applicant knew the DFO policy that no new licences were being issued for crab fishing because of the declining crab stock. The applicant also knew that he was granted the 1998 licence for the "Sandy Joanne" because his crab fishing boat, the "Bear Cove Point", had completed its crab fishing for 1998, and had been leased to another company for the remainder of the year. Finally, the applicant knew that his successful exploratory work in 1998 resulted in a substantial increase for 1999 of his crab licence quota for his crab fishing boat, the "Bear Cove Point".
(c) Fairness in relation to quota allocated to another crab licencee
[41] The applicant also submitted that he was not treated fairly in relation to Off-Shore Fish Harvesters Inc., which is a co-op holding a crab fishing licence. The applicant submitted that this co-op received a much greater increase in quota in 1999 for crab than he did. The issue of quota was not dealt with by the Appeal Board because it was not properly before the Appeal Board. The only issue was the decision not to renew the applicant's 1998 short-term exploratory crab licence for the "Sandy Joanne".
[42] In addition to this not being an issue, it is evident to the Court that the equities are not as contended by the applicant:
1. the co-op involves several fishing boats and several fisherman who are members of the co-op;
2. the licence for the co-op is in a different category than the licence for the applicant;
3. the two other vessels in the same crab licence category as the applicant all received the same quota and quota increase; and
4. the quota specifically allocated in 1999 to the area where the applicant had done the 1998 survey work does not entitle the applicant to that quota. The evidence showed that Off-Shore Fish Harvesters Inc. had also done exploratory work in that area with the applicant and also did find new crab stocks in that area.
Issue No. 4
Did the composition and structure of the Appeal Board raise a reasonable apprehension of bias?
[43] The second Appeal Board consisted of three voting members. Mr. Tom Curran, employed by DFO as Chief of Resource Management in the Newfoundland and Labrador Region, was with the Appeal Board as secretary. While Mr. Curran did not vote on the recommendation, he was present during the in camera deliberations of the Appeal Board.
[44] The applicant submits that the presence of Mr. Curran on the Appeal Board panel, even in a non-voting capacity, creates a reasonable apprehension of bias. He states that it is reasonable to assume that a person in Mr. Curran's position could be called upon during in camera discussions to further explain DFO policies, practices or procedures or be invited by voting members to confer over issues raised in the hearing.
[45] The test for reasonable apprehension of bias was set out by the Supreme Court of Canada in [1978] 1 S.C.R. 369">Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369 at 394 as follows:
...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. In the words of the Court of Appeal, the test is "what would an informed person, viewing the matter realistically and practically - 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.
In my view, the presence of Mr. Curran with the Appeal Board, including his presence during the in camera deliberations, does not raise a reasonable apprehension of bias for the following reasons.
[46] First, the evidence as to how the appellate bodies are structured is a document published by DFO entitled "Fisheries Management Policies on Canada's Atlantic Coast", which provides at page 13:
At the first level, the Regional Licensing Appeal Committee, consisting of DFO officials, reviews all pertinent information supplied by an eligible inshore fishers (sic) who has filed a written request... The regional Director General gives approval or denial of the appeal.
When appeals have been denied by the Regional Licensing Appeal Committee, fishers may apply to the Atlantic Fisheries Licence Appeal Board (AFLAB), whose members are nominated by the Minister of DFO and are independent from the Department. The Minister of Fisheries and Oceans decides on appeal cases heard by the AFLAB, based on their recommendations.
It is clear that the Regional Committee and the Appeal Board are part of an internal appeal process within the Department. The Appeal Board's decision is advisory. The Appeal Board is an advisory tool of the Minister, created by the Minister. It has no statutory authority.
[47] Second, the presence of a DFO employee with the Appeal Board is to act as a secretary to the Appeal Board and provide background information to the Appeal Board. His role is not to advocate for any position. That was done before the Appeal Board by a DFO representative, in the presence of counsel for the applicant. The Appeal Board provides an independent review by a panel of outsiders who have an expertise on the fishery. The evidence of Mr. Curran confirms that he played no role in the deliberations and did not interfere with the deliberations by the three voting members of the Appeal Board. On cross-examination Mr. Curran testified:
A. I was a bystander. The three panel members done the discussions among themselves. If they were looking for a reference to a document that might have been submitted, I assisted in locating that document, or pointed them in the right direction. But they done the deliberations.
Q. So you're a non-voting member, and it appears that your understanding of this role is that you're also a more or less a non-participating member. You're there as a notetaker, as a secretary to the - but you're not participating as such in the deliberations, is that, is that your understanding?
A. That's correct.
[48] Accordingly, the Court is of the view that an informed person would realize that the Appeal Board provides the Minister with non-binding independent advice, but that the Appeal Board is not a freestanding tribunal with a secretariat independent from the DFO. This would not be a reasonable, realistic or practical structure in the circumstances.
[49] I also recognize that the duty of fairness applicable to the Appeal Board in this case is flexible. Having reviewed the Record, the Court concludes that the Appeal Board hearing was conducted in accordance with the principles of procedural fairness and that the presence of a DFO Officer as a secretary and resource person for the Appeal Board does not create a reasonable apprehension of bias.
[50] In a similar case involving the rules of fairness with respect to an Appeal Board advising the Minister, the Federal Court of Appeal recognized that the requirements of procedural fairness are flexible. In that case, the Court held that there had been no breach of the requirements of procedural fairness when DFO officials provided the Appeal Board with factual information in the absence of the appellants. See Jada, supra, per Malone J. at paragraph 17:
In this case, the appellants submit that the Panel breached the requirements of procedural fairness in allegedly hearing evidence from DFO officials in the absence of the appellants, and not permitting the appellants to respond. In this respect, I agree with the Reviewing Judge that there is nothing on the record which indicates that DFO officials did anything more than provide the Panel with factual information of which the appellants had prior knowledge, and which did not prejudice the appellants in any way.
Similarly in the case at bar, the strict requirements of natural justice with respect to bias should not be imposed on the Appeal Board. The Appeal Board is an internal advisory body for the Minister composed of three persons independent of the Department. Their independence is not compromised by the fact that a DFO employee serves as secretary to the Appeal Board.
CONCLUSION
[51] The Court concludes that:
1. the Minister's Decision and the Appeal Board's Decision not to renew the 1998 short term exploratory crab licence awarded to the applicant for the "Sandy Joanne" was reasonable and fair; and
2. the presence of a departmental employee during the in camera deliberations of the Appeal Board as secretary to the Appeal Board does not raise a reasonable apprehension of bias.
For these reasons, this application for judicial review will be dismissed.
COSTS
[52] While the Court finds no merit in the applicant's case, the Court recognizes that this second case occurred because the Federal Court had overturned the first decision of the Minister and the Appeal Board, and sent the matter back to the Minister for re-determination. In the circumstances of the applicant, the Court has decided that no order as to costs is appropriate.
"Michael A. Kelen"
OTTAWA, Ontario
September 21, 2005
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