Brennan v. Canada, 2004 FC 213

Date: 20040210

Docket: T-469-02

Citation: 2004 FC 213

Ottawa, Ontario, this 10th day of February, 2004

PRESENT:      THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE

BETWEEN:

                                                                ROGER BRENNAN

                                                                                                                                                       Applicant

                                                                              - and -

                                HER MAJESTY THE QUEEN IN RIGHT OF CANADA,

as represented by THE MINISTER OF FISHERIES

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

O'KEEFE J.

[1]                 This is an application for judicial review pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, in respect of the decision of the Department of Fisheries and Oceans ("DFO") wherein the applicant was informed that the Core assessment process and Core appeal process were complete and that there would be no further review of his file.

[2]                 The applicant requests an order of certiorari to quash the decision of the respondent sent by letter dated February 22, 2002.

[3]                 The applicant also requests an order for mandamus requiring the respondent to allow the applicant to present his case in accordance with the appropriate appeal procedures for a hearing on the merits.

[4]                 In the alternative, the applicant seeks an order that the respondent first consider an application for Core status on the merits, and if declined, then the applicant be allowed to appeal in accordance with the appropriate appeal procedures.

[5]                 The applicant further requests costs of the within application.

Background

Introduction - The Applicant and The Concept of Core Status

[6]                 The applicant is a fisher from Newfoundland. In early 2001, he applied to replace his fishing boat with a larger boat. On July 19, 2001, he was advised that a vessel replacement policy restricted the size of his boat because he operated a non-Core enterprise.

[7]                 Developed by DFO through the Commercial Fisheries Licensing Policy for Eastern Canada, the concept of Core status is for a core group of multi-licensed enterprises to be limited to a maximum number. This applies to the inshore sector, which comprises vessels less than 65 feet in length.

[8]                 The purpose of the policy is to reduce capacity and prevent future growth, improve viability and resilience of fishing enterprises, and reduce over-regulation.

[9]                 In order to qualify for Core status, fishers were required to hold a key license in 1995, to be the head of an active fishing enterprise for at least two of the last three years of their qualifying period, to have an historic attachment and dependence on the fishing industry, and to meet the Level II Professional Grandfathering Criteria.

Assessment of Core Status

[10]            In January 1996, DFO began the assessment of files for Core status. This process was concluded in the latter part of 1996. To determine eligibility, DFO sent applications to key licence holders where there was insufficient data and information to assess the file. Applications then had to be completed and returned to DFO for assessment.

[11]            The applicant was sent three letters by registered mail between January 15, 1996 and August 26, 1996 regarding his application for Core status. None of the registered letters were returned to DFO.

[12]            The first registered letter sent to the applicant, dated January 15, 1996, states in part:

The Department of Fisheries and Oceans (DFO) is in the process of identifying enterprises that meet the CORE criteria. In order to determine if your enterprise meets this criteria, you are required to complete the enclosed application. Please ensure that all questions are fully complete. Incomplete applications will result in a delay in processing your enterprise for CORE.

. . . If this application is not received by DFO within 21 days, it will be assumed that you are not interested in having your enterprise reviewed for CORE.

If you have any questions, please call DFO at (709) 772-8247.

[13]            No response was received from the applicant. Accordingly, a second registered letter dated March 29, 1996 was sent to the applicant. It states in part:

. . . On January 15, 1996, you were sent a CORE application form by registered mail. You were requested to complete this application and return it to DFO within 21 days. We have not received this application form and are therefore unable to assess your enterprise for the CORE fishery.

If you have any questions concerning this notice, please contact DFO at the address below.

[14]            Again, no response was received from the applicant. A third registered letter, dated August 26, 1996, was sent to the applicant . This letter states in part:

. . . In January 1996, you were sent a core application form by registered mail. You were requested to complete and return that form within 21 days. You were also sent a second letter requesting that the application be completed if you are interested in having your enterprise reviewed for core. Since DFO has not received this application, your enterprise will not be approved for core.

No response was received from the applicant in regard to this letter either.

[15]            The applicant does not recall ever receiving or seeing these letters. He conducted a search at his local post office and discovered that the letters were picked up by Gus Brennan (signed for letter on January 22, 1996), Brenda Ryan (signed for letter on April 12, 1996) and Roxanne Brennan (signed for letter on August 28, 1996).

[16]            As no application was received from the applicant, he was not designated as holding a Core enterprise. The enterprise number printed on the applicant's licence documents from 1997 to 2001 was N 51174. DFO states that the "N" at the beginning of the enterprise number indicated the applicant's non-Core status. Fishers designated as Core had a "C" at the beginning of their enterprise number.

Core Appeal Process

[17]            Fishers denied Core status had the opportunity to request an appeal within a specific time. These appeals were heard over approximately a one year period during the later part of 1996 and early 1997.

[18]            After the completion of the Core appeal process, DFO undertook two major reviews of Core files in response to representations from industry, Members of the House of Assembly, Members of Parliament, etc. At this stage, DFO rarely heard from fishers who had not already appealed in the Core appeal process.

The Applicant's Request for Core Status

[19]            As mentioned above, the applicant claims that on July 19, 2001 he was advised that he did not have Core enterprise status. In a letter to DFO, dated September 17, 2001, applicant's counsel wrote that the applicant was "shocked to find out that he did not have a core enterprise" and that he wished to receive applications so that he could become one.

[20]            By letter dated October 22, 2001, DFO replied stating in part:

. . .

Please be advised that the Core assessment process was undertaken in 1996. It is now complete. The Department of Fisheries and Oceans is no longer distributing or reviewing applications from fishers.

As a Professional Level II fisher, Mr. Brennan may be eligible to be designated Core by way of re-issuance from another fisher. Under this scenario, he would have to identify a Core fisher who would be willing to relinquish his enterprise to Mr. Brennan.

[21]            Applicant's counsel then wrote a letter, dated January 16, 2002, to the Chief of Licensing & Appeals at DFO requesting an opportunity to apply for Core status or, in the alternative, a hearing before the Atlantic Fisheries Licence Appeal Board.

[22]            On February 22, 2002, the applicant's solicitor received a reply from the Chief of Licensing & Appeals at DFO. The letter stated in part:

. . .

Please be advised that the Core assessment process and the Core appeal process have concluded. As a result, there will be no further review of this file. The Department of Fisheries and Oceans in the Newfoundland Region will not be reviewing any further cases under this policy.

Applicant's Submissions

[23]            The applicant submits he regularly and faithfully applied for his commercial fishing licenses year after year and that it would have made no sense for him not to apply for Core status, given the fact that all that was required was to complete a simple form. While the applicant acknowledges that the letters were sent to him by the respondent, he states that he did not receive them and that he had no knowledge that a separate application was required to apply for Core status.

[24]            The applicant submits that he carried on his fishing enterprise after 1996 as he had in previous years and that no notice was provided to him indicating that he was not a Core fisher.

[25]            The applicant submits that once he missed the application process, he also missed the appeal process as he was not notified of any decision or result. The applicant submits that he was not even given an opportunity to present his case in writing and no decision has ever been made on the merits of his eligibility for core status. The applicant submits it would be unfair that he not be given an opportunity to present his case at an appeal hearing before an independent board as other fishers were entitled to do. The applicant submits he was denied procedural fairness.

[26]            The applicant submits that to deny him Core status without a hearing would be depriving him of the right to liberty and security of the person as it is limiting his right to make a living and livelihood. The applicant submits he was denied his rights as guaranteed by the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (the "Charter") and the Canadian Bill of Rights, S.C. 1960 c. 44, reprinted in R.S.C. 1985, App. III (the "Bill of Rights").

[27]            The applicant submits the Minister failed to consider all of the evidence, including registered mail cards indicating he did not sign for the letters sent by DFO regarding the Core status application process.

Respondent's Submissions

[28]            The respondent submits that the only decision before this Court is the one received by the applicant on February 22, 2002, stating that the Core assessment and appeal process was completed and that no further review of his file would occur.    It is submitted that this is not a decision refusing the applicant's application for Core status on its merits. The respondent further submits that because the February 22, 2000 decision was dictated by the policy that established the Core status application process and the end dates of this process, this judicial review attacks the policy implementation to not allow further Core applications after the 1996/1997 time frame. Since the decision at issue was made according to policy, the respondent submits it can only be challenged on the limited grounds of bad faith, non-conformity with the principles of natural justice and reliance on irrelevant considerations. It is submitted that bad faith and irrelevant considerations are not alleged by the applicant.

[29]            The respondent submits the principles of natural justice were not breached in making the February 22, 2002 decision as the applicant was given an opportunity to state his case, he received reasons for the decision and there was no right to an oral hearing. It is submitted that on two separate occasions, the respondent considered the applicant's request for Core status. It is also submitted that the principles of fundamental or natural justice do not require that an oral hearing be held in these circumstances.

[30]            The respondent submits that full consideration was given to the material presented by the applicant in support of his request. The respondent submits that the letters sent by registered mail could not have been picked up by someone other than a person authorized to collect mail on the applicant's behalf.    Therefore, despite the alleged lack of receipt of the registered letters, the respondent submits it was entitled to deny the applicant an opportunity to apply for Core status.

[31]            The respondent submits the objectives of the Fisheries Act, R.S.C. 1985, c. F-14, must be considered when examining the decision at issue. To allow new applications for Core status, the respondent argues, would defeat the conservation and fishery management objectives underlying the Core program.

[32]            The respondent submits the applicant's non-Core status will not deprive him of the ability to make a living. It is submitted that the applicant was able to make a living from the end of 1996, when he was designated as non-Core, until he asked for Core designation five years later in September 2001.

[33]            The respondent submits that this Court lacks the jurisdiction to compel the Minister to issue Core status to the applicant. Relying on Kahlon v. Canada (Minister of Employment and Immigration), [1986] F.C.J. No. 930 (C.A.) (QL), the respondent states that mandamus orders can compel the performance of a public duty but not dictate the result to be achieved. Since the Fisheries Act, supra grants the Minister not the duty, but a discretion to issue licences, the respondent submits that this Court lacks the jurisdiction to compel the Minister to issue Core status.

Issues

[34]            The issues in this application are as follows:

1.          What is the applicable standard of review of the respondent's decision?

2.          Did the respondent fail to observe the principles of natural justice and procedural fairness by failing to allow the applicant to apply for Core status, and in particular, to have an appeal hearing following the respondent's decision to refuse to consider an application?

3.          Did the respondent breach the principles of fundamental justice as guaranteed by the Charter and the Bill of Rights, supra,in failing to allow the applicant to apply for Core status, or in the alternative, denying the applicant an appeal hearing following the refusal to allow the applicant to apply for Core status?

4.          Did the respondent base its decision on erroneous findings of fact making its decision in a capricious manner without regard for the material facts before it?

Relevant Statutory Provisions

[35]            The relevant sections of the Charter state:

[36]            The relevant sections of the Bill of Rights, supra state:

Analysis and Decision

[37]            Issue 1

What is the applicable standard of review of the respondent's decision?

I am of the view that the issues raised by the applicant relate to procedural fairness or

natural justice issues. Consequently, the appropriate standard of review to apply is that of correctness.

[38]            Issue 2

Did the respondent fail to observe the principles of natural justice and procedural fairness by failing to allow the applicant to apply for Core status, and in particular, to have an appeal hearing following the respondent's decision to refuse to consider an application?

There is no dispute that in this case, the applicant did not apply for Core status. The applicant states that he never received any of the letters sent by the respondent relating to the application for Core status. He states that he only found out that he was not Core status when he applied to replace his boat with a larger boat in July 2001.

[39]            The applicant then sought to apply for his Core status on September 17, 2001 and that request was denied by the respondent in a letter from Mr. Tobin which read in part as follows:

Please be advised that the Core assessment process was undertaken in 1996. It is now complete. The Department of Fisheries and Oceans is no longer distributing or reviewing applications from fishers.

[40]            As a result of this refusal, the applicant on January 16, 2002, applied to Mr. Tom Perry, Chief of Licensing & Appeals at the DFO for the following:

We request that Mr. Brennan be given the opportunity to apply for core status. In the alternative, we request a hearing before the Atlantic Fisheries Licence Appeals Board on this issue.

Mr. Perry denied this request by letter on or about February 22, 2002, which read in part as follows:

Please be advised that the Core assessment process and the Core appeal process have concluded. As a result, there will be no further review of this file. The Department of Fisheries and Oceans in the Newfoundland Region will not be reviewing any further cases under this policy.

[41]            The applicant contends that the respondent's failure to either consider his application for Core status on its merits or to grant him an appeal hearing if the respondent would not consider his application, constituted a denial of natural justice and a breach of the duty of procedural fairness owed to him by the respondent.

[42]            The evidence before Mr. Perry indicated that the respondent had sent three registered letters to the applicant's address concerning the Core status application process. All three registered letters were signed for at the post office; the first by Gus Brennan on January 22, 1999, the second by Brenda Ryan on April 12, 1996 and the third by Roxanne Brennan on August 28, 1996. The applicant, Mr. Brennan, stated in his affidavit that he "could not recall ever receiving the applications" and that after conducting a search at the post office he "discovered that the letters were picked up by other individuals, therefore, I never received or saw these applications".

[43]            The validity of the Core program initiated by the respondent is not in issue before me. The respondent put in place a process to contact people such as the applicant, provided for an appeal process and for subsequent submissions after the formal appeal process had ended. The Core program process was concluded approximately three years prior to the applicant's request to be considered under the program.

[44]            The question now becomes whether Mr. Perry's refusal to allow the applicant's request to make his application for Core status or to appear before the Atlantic Fisheries Licence Appeal Board was a breach of the duty of procedural fairness or a denial of natural justice as outlined in the relevant case law.

[45]            I have considered the relevant jurisprudence and I cannot find that the respondent, on the facts of this case, has denied the applicant natural justice or breached the duty of procedural fairness owed to him. The respondent sent three registered letters to the applicant which presumably must have been picked up by someone authorized by him. Subsection 6(8) of the Special Services and Fees Regulations, C.R.C. c. 1296, enacted under the Canada Post Corporation Act, R.S.C. 1985, c. C-10 states:

[46]            Based on these observations, I am of the view that the decision of Mr. Perry did not deny the applicant natural justice or result in a breach of the duty of procedural fairness.

[47]            Issue 3

Did the respondent breach the principles of fundamental justice as guaranteed by the Charter and the Bill of Rights, supra, in failing to allow the applicant to apply for Core status, or in the alternative, denying the applicant an appeal hearing following the refusal to allow the applicant to apply for core status?

Applying the same reasoning as I applied under Issue 2, I find that there has not been a breach of the principles of fundamental justice as guaranteed by the Charter and the Bill of Rights, supra by Mr. Perry failing to allow the applicant to apply for Core status or to have an appeal hearing concerning his Core status application. Nor am I convinced that the guarantees enshrined in section 7 of the Charter would even be engaged on the facts of this case, since the applicant's claim centres around his economic interest in fishing. The Supreme Court of Canada recently stated in Siemens v. Manitoba (Attorney General), [2003] 1 S.C.R. 6, 2003 SCC 3">2003 SCC 3 that section 7 rights encompass "fundamental life choices, not pure economic interests". It is not necessary, however, to engage in an extensive analysis of the scope of the applicant's section 7 rights. Given my view that the decision in question was not made in breach of the principles of fundamental justice, the applicant's Charter arguments cannot succeed.

[48]            Issue 4

Did the respondent base its decision on erroneous findings of fact making its decision in a capricious manner without regard for the material facts before it?

A review of the affidavit of Tom Perry sworn to April 12, 2002 and its attachments

indicate to me that Mr. Perry did not base his decision on erroneous findings of fact or make his decision in a capricious manner without regard for the material before him.

[49]            The applicant noted that the affidavit of Derek Tobin states that some fishers who had not made formal appeals were granted Core status after DFO conducted a file review. These fishers had not appealed and had been allowed to make submissions after the Core appeal process was completed. I would note, however, that this took place before the Core assessment process ended. The fact that the earlier appeal process as modified due to industry and political input does not make it erroneous or capricious for the respondent to refuse to review the applicant's file approximately four years later.

[50]            The application for judicial review is dismissed.

[51]            There shall be no order as to costs.

                                                  ORDER

[52]            IT IS ORDERED that:

1.          The application for judicial review is dismissed.

2.          There shall be no order as to costs.

                                                                                   "John A. O'Keefe"             

J.F.C.                      

Ottawa, Ontario

February 10, 2004

                          FEDERAL COURT OF CANADA

                                       TRIAL DIVISION

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                   T-469-02

STYLE OF CAUSE: ROGER BRENNAN

- and -

HER MAJESTY THE QUEEN IN RIGHT OF

CANADA, as represented by

THE MINISTER OF FISHERIES

PLACE OF HEARING:                                   St. John's, Newfoundland and Labrador

DATE OF HEARING:                                     Monday, August 11, 2003

REASONS FOR ORDER AND ORDER OF O'KEEFE J.

DATED:                      Tuesday, February 10, 2004

APPEARANCES:

Gregory Pittman

FOR APPLICANT

Melissa Cameron

FOR RESPONDENT

SOLICITORS OF RECORD:

Mills, Hussey & Pittman

Clarenville, Newfoundland and Labrador

FOR APPLICANT

Department of Justice

Atlantic Regional Office

Halifax, Nova Scotia

FOR RESPONDENT