Date: 20091204
Docket: T-890-08
Citation: 2009 FC 1239
Calgary, Alberta, December
4, 2009
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
ALBERT
RALPH
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
Introduction
[1]
Mr.
Albert Ralph (the “Applicant”) seeks judicial review of the decision of the
Minister of Fisheries and Oceans (the “Minister”) dated May 16, 2008. In that
decision, the Applicant’s appeal for the reinstatement of his supplementary
crab licence was dismissed.
[2]
The
Applicant is a fisherman residing in the town of Eastport,
Newfoundland and Labrador. The Minister is responsible for the
administration of the fisheries resources of Canada pursuant to
the Fisheries Act, R.S.C. 1985, c. F-14 (the “Act”). The Minister is
represented by the Attorney General of Canada in this application for judicial
review, pursuant to the Federal Courts Rules, SOR/98-106 (the “Rules”).
Background
[3]
The
following recitation of the facts is based upon the affidavits, together with
the exhibits, that were filed on behalf of the Applicant and the Respondent in
this application for judicial review. An affidavit was filed by the Applicant
himself. Ms. Beverley Green, area licensing administrator for Eastern
Newfoundland, with the Department of Fisheries and Oceans (“DFO” or the
“Department”), Newfoundland Region, filed an affidavit on behalf of the
Respondent.
[4]
The
Applicant obtained a supplementary crab licence in 1988. At that time, the Crab
Management Plan for the Newfoundland Region, prepared by DFO set out three
criteria for the issuance of this supplementary licence, as follows:
a.
are
residents of the Management Area for which licences are available.
b.
own/operate
a registered commercial fishing vessel that is not less than 35 feet LOA or 10
gross tons and does not exceed 64’11” LOA.
c.
possess a
groundfish licence for 2+3KL or Sector 1.
[5]
The
Applicant applied for the supplementary crab licence in connection with the
M.V. “Misty Dawn”, Commercial Fishing Vessel (“CFV”) 089937, described as being
35’ LOA.
[6]
The
Applicant reapplied for licences in 1989 and 1990 and obtained them.
[7]
Then
on April 18, 1990, the Applicant signed an “Application for Relinquishment of
Rights” relative to the groundfish fixed gear (“GFFG”) licences associated with
the M.V. “Misty Dawn”. He asked that these licences be reissued to his son
Shawn Ralph. Mr. Shawn Ralph intended to combine the licences for the M.V.
“Misty Dawn” with another licence that had been transferred to him, in order to
obtain a licence for a larger vessel, that is a vessel 64’ 11” length. By
letter dated April 30, 1990, from Beverley C. Green, then the District
Licensing Administrator, Resource Management Division for DFO, the Department
acknowledged the transfer of the GFFG licence from the Applicant to his
son.
[8]
In
his affidavit filed in support of this application, the Applicant stated that
he received the supplementary crab licence in 1989 and 1990. He applied for
this licence again in 1991 but did not receive it. He stated that he went to a
local DFO office to get an explanation as to why the supplementary crab licence
was not approved for 1991 but no explanation was provided. He said that at one
time he was informed by a DFO official that he had transferred his
supplementary crab licence to his son Shawn. The Applicant says that this is a
mistake, that he had only transferred the registration of the M.V. “Misty Dawn”
to his son.
[9]
The
Applicant first wrote to DFO about the supplementary crab licence in 1993,
asking that this licence be reinstated. He wrote again on January 22, 1994 and
on March 10, 1994.
[10]
The
first correspondence in reply from DFO is dated April 8, 1994. In that letter,
signed by Ms. Green, the Applicant was told that since the transfer of his 35’
vessel to his son Shawn, he no longer met the criteria for vessel requirements
to maintain the crab licence. Ms. Green further advised that the criteria for
the issuance of supplementary crab licences were changed in 1989, restricting
the grant of such licences to vessels 35’ LOA and greater. Finally, according
to the 1993 Crab Management Plan, a freeze was imposed on the issuance of new
licences.
[11]
The
Applicant deposed in his affidavit that he was never informed of a change in
policy and if he had been so informed, he would not have transferred his 35’
vessel to his son Shawn.
[12]
According
to his affidavit, the Applicant wrote again to DFO on February 22, 1995,
requesting the reinstatement of the supplementary crab licence. He says that he
spoke again with a Mr. Bob Wiseman of DFO who told him that his licence had
been cancelled in June 1990 and that he, that is the Applicant, should have
received a letter of notification in that regard. The Applicant asked Mr.
Wiseman to find the letter in his file at DFO but Mr. Wiseman was unable to do
so.
[13]
The
Applicant deposed that Mr. Karl Sullivan, then Vice President of Seafreez
Foods, wrote to DFO on April 4, 1997, again requesting an explanation for the
non-issuance of the supplementary crab licence to the Applicant after 1990.
[14]
In
2000, the Applicant wrote to the Minister, requesting his intervention in the
matter.
[15]
In
2007, the Applicant was granted a right of appeal to the Atlantic Fisheries
Licensing Appeal Board (“AFLAB” or the “Board”). A hearing took place before
the Board on December 11, 2007.
[16]
The
Applicant made representations to the Board, through his Counsel, at the
hearing of the appeal on December 11, 2007. Representations were also made on
behalf of DFO. A summary was prepared by the Board. At paragraphs 14 and 15 of
that summary, the Board summarized the Applicant’s arguments as follows:
14. As a result of the negligence of the
Department, and/or breach of duty owed by the Department, Mr. Ralph has
suffered real economic loss, including but not limited to the value of lost
landings for the crab fishing seasons 1990 through to present day, the present
day value of the crab licence, and no further lost opportunities.
15. Mr. Ralph asks that the incorrect
decisions of the Department, and in particular the decision to cancel the
supplemental crab licence in 1990 and the decision to refuse to renew same
since, be overturned by this Appeal Board, with a further recognition of the
financial and economic losses suffered by Mr. Ralph as a result.
[17]
The
Board made the following recommendation to the Minister:
RECOMMENDATION: APPEAL DENIED
The Board reviewed all the information
presented by the appellant, his representatives and the Department of Fisheries
and Oceans. The Board recommends that the appeal be denied based on the fact
that Mr. Ralph did have a groundfish licence for a vessel greater than 35’ in
1988 and his supplementary crab licence was issued on that criteria not on the
criteria of less than 35’ and 10 gross tones. In 1990, the Department of
Fisheries and Oceans policy for the issuance of new supplementary crab licences
stated you had to hold a groundfish licence for a vessel greater than 35’.
Since Mr. Ralph transferred his greater than 35’ groundfish fixed gear licence
to his son Shawn Ralph, he was not eligible to hold a supplementary crab
licence after that date. The Board could find no extenuating circumstances in
this case and the Department of Fisheries and Oceans policies and procedures
were applied correctly.
[18]
The
Minister made his decision on the basis of the Board’s recommendation. The
decision is set out in a letter dated May 16, 2008 from the Minister as
follows:
The Honourable Loyola Hearn has asked me
to respond to your letter regarding your request for reinstatement of your
supplementary crab licence. As you know, your request was referred to the
Atlantic Fisheries Licence Appeal Board and was heard on December 11, 2007 at
the Battery Hotel & Suites, St. John’s,
Newfoundland and Labrador.
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 licensing policy was
correctly interpreted and applied by the Department of Fisheries & Oceans
in your case.
I regret, once again, that this decision
could not be more favourable to you.
Submissions
i) Applicant’s Submissions
[19]
The
Applicant argues that he was treated unfairly by DFO and the Minister because he
was never told about the change in policy in 1989 regarding the conditions to
be met in order to obtain a supplementary crab licence. He submits that he was
not told that he would lose the crab licence if he transferred the 35’ vessel.
[20]
The
Applicant argues that he initially qualified for the supplementary crab licence
by owning both a 35’ vessel and a vessel of 10 gross tons. He submits that
since he initially qualified for the supplementary crab licence by owning both
a 35’ vessel and a vessel of 10 gross tons, the licence should have been made
available to him, even after he had transferred the 35’ vessel. He argues that
he was not looking for a “new” supplementary crab licence but the renewal of
such a licence.
ii) Respondent’s Submissions
[21]
The
Respondent takes the position that the Applicant had no vested right in the
perpetual issuance of the supplementary crab licence. The conditions for
holding that licence changed in 1989 so that when the Applicant applied for it
in 1991, he was no longer eligible to hold it since at that time, he did not
meet the criteria because he no longer owned and operated a 35’ vessel with a
GFFG licence. The Applicant had transferred his 35’ vessel to his son Shawn in
April 1990.
[22]
The
Respondent notes that the original issuance of the supplementary crab licence
to the Applicant was on the basis that he owned and operated a 35’ vessel, not
on the basis that he owned and operated a smaller vessel of 10 gross tons. The
licence was issued for the M.V. “Misty Dawn”, CFV 089937. In any event, the
Respondent says that the tonnage for the smaller vessel, CFV 098316, is not
indicated on the application for the licence in 1988.
[23]
The
Respondent argues that the recommendations of the Board were reasonable, having
regard to the regulatory scheme and the evidence that was submitted. Accordingly,
he submits that the decision of the Minister was reasonable and withstands
judicial scrutiny.
[24]
As
well, the Respondent points out that the Applicant’s application for commercial
licences and registrations in 1991 refers to only two vessels.
[25]
The
Respondent also submits that, pursuant to the regulatory scheme, the GFFG
licence is attached to the 35’ vessel. Once the vessel was transferred to his
son, the Applicant no longer held a GFFG on a 35’ vessel and he did not qualify
after that transfer to hold a supplementary crab licence.
Discussion and
Disposition
[26]
The
first issue to be addressed is the applicable standard of review. Since the
decision of the Supreme Court of Canada in Dunsmuir v. New
Brunswick,
[2008] 1 S.C.R. 190, decisions of administrative decision-makers are reviewable
on one of two standards, that is correctness and reasonableness. The standard
of correctness will apply to questions of law. Generally, the standard of
reasonableness will apply to questions of fact, mixed fact and law and the
exercise of discretion. Questions of procedural fairness and natural justice
are reviewable on the standard of correctness; see Ellis-Don Ltd. v. Ontario (Labour
Relations Board), [2001] 1 S.C.R. 221, at para. 65.
[27]
The
Minister is responsible for the management of fisheries. Pursuant to
section 7 of the Act, the Minister holds absolute discretion over the issuance
of licences, including the creation of terms and conditions. Section 10 of the Fishery
(General) Regulations, SOR/93-53 (the
“Regulations”) describes the period during
which a licence is valid:
|
Expiration
of Documents
10.
Unless otherwise specified in a document, a document expires
(a)
where it is issued for a calendar year, on December 31 of the year for which
it is issued; or
(b)
where it is issued for a fiscal year, on March 31 of the year for which it is
issued.
|
Date
d’expiration des documents
10.
Sauf indication contraire dans le document, celui-ci expire à l’une des dates
suivantes :
a)
le 31 décembre de l’année pour laquelle il a été délivré, s’il est délivré
pour une année civile;
b)
le 31 mars de l’année pour laquelle il a été délivré, s’il est délivré pour
un exercice.
|
[28]
The
Minister, through DFO, is authorized to promulgate policies, including
management plans. The Crab Management Plans that were developed for the
Newfoundland Region in 1988 through 1991 are relevant.
[29]
The
policies relative to the management of the fisheries in the Newfoundland Region
include the Commercial Fisheries Licensing Policy for Eastern Canada
(Ottawa: Minister Supply and Services Canada, 1996) (the “Licensing Policy”).
AFLAB is created pursuant to this policy. Chapter 7 of the Licensing Policy
provides for an appeal process for those persons that are not satisfied with
licensing decisions made by the employees of DFO. Section 35 of the Licensing
Policy describes the mandate of the Board. Paragraphs 35(7)(a), (b) and (c) are
relevant to the
present proceeding and provide as follows:
The Atlantic Fisheries Licence Appeal
Board will only hear appeals requested by fishers who have had their
appeals rejected following hearings by Regional Licensing Appeal Committees.
(a) The Board will consider only those
licensing appeals which deal with policies for vessels less than 19.7m (65’)
LOA.
(b) The Board will only hear appeal
requests made within three years from the date of a licensing decision or a
change in policy.
(c) 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;
(ii)
determining
if extenuating circumstances exist for deviation from established policies,
practices, or procedures;
[30]
Paragraph
35(7)(c) of the Licensing Policy describes the role of the Board, that is to
hear appeals of licensing decisions and to make recommendations to the
Minister, having regard to whether an appellant had been treated fairly and
whether “extenuating circumstances” exist that would justify deviation from “established
policies, practices or procedures” (underlining added).
[31]
In
Jada Fishing Co. et al. v. Canada (Minister of Fisheries
and Oceans) et al. (2002), 288 N.R. 237 (F.C.A.), the Federal
Court of Appeal commented on the relationship between the
recommendations of the Board and the
decision of the Minister at paras. 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, 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 of the Minister 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.
[32]
This
means that the recommendation of the Board is to be considered as a factor that
was taken into account by the Minister when he made the decision that is under
review.
[33]
The
Applicant claims that he was unfairly treated, on two grounds. First, he
alleges that he was not informed about the change in policy. Next, he says he
was unfairly treated because he qualified under the initial conditions for the
issuance of a supplementary licence on two grounds: he owned and operated two
qualifying vessels, one being 35’ LOA, CFV 089937 and the second, CFV 098316. The
Applicant asserts that, on the basis of those facts, he was eligible to receive
the supplementary crab licence in 1991.
[34]
Admittedly,
the record shows a lack of communication between the parties about the
non-renewal of the supplementary crab licence. The Applicant did not receive
this supplementary licence in 1991 but he did not approach DFO about it until
1993 when, in his letter of April 25, 1993 he said that it “was dropped”
without any reason.
[35]
No
written response came from DFO until the letter dated April 8, 1994 from Ms.
Green. At that time, the Department advised that the criteria for the issuance
of the supplementary crab licence had changed and that since the reissuance of the
GFFG licence for the 35’ vessel to his son in 1990, the Applicant no longer met
the criteria to maintain that licence.
[36]
The
fact that the Applicant did not receive an earlier reply to his letter of April
25, 1993 and January 22, 1994 is unfortunate but it does not establish a course
of unfair or improper treatment by the Department. There was no breach of
natural justice or procedural fairness in this case. The Applicant himself had
some responsibility to inquire about the lack of the licence and he admitted
that he was engaged in caring for his ill wife who died in 1993. However, the
real issue is that the policy for the conditions of issuing the supplementary
crab licence had changed.
[37]
According
to Ms. Green, the policy had changed in 1989. In that year, the following
criteria were established:
Supplementary Fishery
Licences to fish 150 traps are available
to full-time fishermen who meet the following criteria:
(a) are residents of the Management Area
for which licences are available.
(b) operate a registered commercial
fishing vessel that is not less than 35 feet LOA and does not exceed 64’11”
LOA.
(c) possess a groundfish licence for
2+3KL or Sector I.
[38]
These
criteria were published in the 1989 Crab Management Plan for Newfoundland. The
difference between these criteria and those in effect in 1988, when the
Applicant acquired the supplementary crab licence, is found in paragraph (b).
According to the 1988 Crab Management Plan for the Newfoundland Region, the
applicant for such licence was required to:
(b) own/operate a registered commercial
fishing vessel that is not less than 35 feet LOA or 10 gross tons and does not
exceed 64’11” LOA.
[39]
Once
the Applicant had relinquished his GFFG licence that attached to the M.V.
“Misty Dawn”, CFV 089937, he was unable to meet the new regulatory policy for
holding a supplementary crab licence.
[40]
As
noted above, the granting of fishing licences is governed by Section 7 of the
Act. This statutory provision accords broad discretion to the Minister in the
matter of issuing licences under the Act. The breadth of that discretion was
discussed by the Supreme Court of Canada, in Comeau's
Sea Foods Ltd. v. Canada (Minister of Fisheries and Oceans), [1997] 1 S.C.R. 12 at para. 36
as follows:
It is my opinion that the Minister's
discretion under s. 7 to authorize the issuance of licences, like the
Minister's discretion to issue licences, is restricted only by the requirement
of natural justice, no regulations currently being applicable. The Minister is
bound to base his or her decision on relevant considerations, avoid
arbitrariness and act in good faith. The result is an administrative scheme
based primarily on the discretion of the Minister: see Thomson v. Minister
of Fisheries and Oceans, F.C.T.D., No. T-113-84, February 29, 1984.
[41]
The
Minister is entitled to change policies as required in order to manage the fishery.
The only question to be answered is ‘was the decision to refuse to issue the
Applicant a supplementary crab licence reasonable?’
[42]
In
my opinion, the Minister’s decision is reasonable and properly took into
consideration the new policy with respect to the issuance of supplementary crab
licences. Fishing licences are re-issued annually by the Minister in accordance
with the prevailing policies. The policy in question required a vessel of a
minimum length with a GFFG. As the Applicant did not possess the requirements,
he was not eligible to have a supplementary crab licence. I note that in
signing the relinquishment of rights on April 18, 1990, the Applicant
acknowledged that his future ability to re-enter the crab fishery was dependent
upon any change in policy. That document includes the following statements:
I understand that any future requests to
re-enter this fishery will be subject to any Licencing Policy or Management
Plan criteria in place at the time of the request.
I acknowledge and accept these conditions
of relinquishment and agree that the licence(s) be re-issued.
[43]
In
the result, this application for judicial review is dismissed. In the exercise
of my discretion pursuant to the Rules, I make no order as to costs.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application for judicial review is dismissed, no order as to costs.
“E. Heneghan”
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