Date: 20070219
Docket: T-1888-06
Citation: 2007 FC 184
Vancouver, British Columbia, February
19, 2007
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
MURRAY OWEN REID
Applicant
and
HER MAJESTY THE QUEEN
IN RIGHT OF CANADA as represented by the
MINISTER OF FISHERIES AND OCEANS
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application by the Respondent for an Order striking out the Applicant’s
judicial review application filed on October 27, 2006 in which the following
relief is sought:
1.
An order
in the nature of mandamus requiring the Department of Fisheries and Oceans
forthwith to provide a decision to the applicant on his request for the return
of the licence known as ZN/04…to the applicant .
2.
A
declaration that the transfer of nomination of the said licence was improper
and invalid on the grounds that the transfer was not authorized by the
applicant or approved by the Court as required by Court order.
[2]
When
filing his judicial review application, the applicant was self-represented.
Background
[3]
Until
July 29, 2003, Murray Reid (the Applicant) held a rockfish licence ZN/04 (the
licence). That day, the Department of Fisheries and Oceans (DFO) transferred
it to West Point Fisheries Ltd. (West Point) with written notice of transfer (nomination)
provided to the Applicant.
[4]
At
the time of the transfer, the Applicant was in the midst of a divorce proceeding
with Heather Bonita Reid (Mrs. Reid). Pursuant to an ex parte
application, Mrs. Reid obtained from the Supreme Court of British Columbia on
March 18, 2003 (the March 18, 2003 Order) an order, inter alia, that the
licence “currently listed for sale…shall be sold”.
[5]
The
March 18, 2003 Order further provided Mrs. Reid “shall have exclusive conduct
of the sale of the assets” with clause 3 of the order stipulating “the sale of
any asset shall be subject to Court approval unless the Respondent (Murray
Reid) agrees with the terms of the sale”.
[6]
DFO
transferred the licence to the West Point at the written request
(nomination) of Heather Reid dated July 18, 2003.
[7]
For
sake of completeness, I add that on July 8, 2003, the March 18, 2003 Order was
amended by Mr. Justice Vickers stipulating the licence was part of the family
assets including a term that the proceeds of the licence shall be divided equally
between Murray Reid and Heather Reid. No other change to the March 18, 2003
Order was made by Justice Vickers.
[8]
After
the sale of the licence was completed and the proceeds presumably paid, Justice
Romilly, on August 27, 2003, in the presence of counsel for Murray Reid, varied
and set aside many of the terms of the March 18, 2003 Order except the ones
which related to the licence. Justice Vickers’ order was also set aside
“except with respect to the provision that the proceeds of the sale of the licence
be divided equally.
[9]
The
record indicates it was only on July 19, 2005 that Murray Reid wrote to the
Resource Manager Licensing at DFO’s Pacific Region (the Resource Manager)
stating his licence was “transferred to another party by DFO … contrary to a
court order”. He requested an investigation “into this error by DFO staff”.
[10]
In
this letter, Mr. Reid mentioned, when he received by mail in August 2003 the
DFO “confirmation of Nominee acceptance” for the licence, his partner, Diva
Vinciguerra, phoned the DFO officer involved who after that conversation
realized “he had made an error” because he had acted on the advice of a boat
sales representative that Heather Reid had the authority to sign the nomination
and “he had not read the court order, of which he was given a copy.” See also
the statement of the DFO Officer (William Leung) dated July 15, 2005 who states
that under the direction of the boat sales representative, he completed the
application for nomination of the licence on that individual’s advice that
Heather Reid had the authority to sign.
[11]
In
his July 19, 2005 letter to the Resource Manager, Mr. Reid explained the delay
in bringing the matter forward: messy and costly divorce proceedings, stress,
difficulties in communication, hope that he could attend the matter once the
divorce issues were resolved but the divorce issues “dragged on”. Mr. Reid
concluded by saying he hoped that “this process of investigation will lead to
the restoration of the ZN licence to its rightful owner”.
[12]
On
September 7, 2005 the Resource Manager at DFO answered Murray Reid’s July 19,
2005 letter. Essentially, she reviewed the terms of the three court orders
discussed above which required the sale of the licence and concluded Heather
Reid had the proper authority to nominate West Coast as she had the “exclusive
conduct of the sale”.
[13]
The
Resource Manager also referred to Justice Romilly’s order of August 27, 2003 whereby
he confirmed that the licence eligibility be sold and the proceeds to be evenly
divided and stated “I understand that the terms of that Court order were
complied with and that matters relating to the rockfish licence eligibility as
between yourself and Heather Reid were satisfactorily resolved”.
[14]
July
17, 2006 was the next development. Mr. Reid’s partner wrote to the Resource Manager
to advise that the Applicant intends appealing “the improvident transfer of
nomination” to the DFO Appeal Board.
[15]
Mr.
Reid’s partner stated “[a]s per your instructions, Mr. Reid understands that he
is required to outline the basis of his appeal as follows …” Ms. Vinciguerra
then outlined the basis for Mr. Reid’s appeal: (1) breach of DFO policy which
calls for a 10-day period for the processing of transfer of nomination
applications (the allegation is that Mr. Leung transferred the licence within a day of
receipt); (2) it is highly “irresponsible and negligent for a DFO licensing
officer to operate under the advice of a broker and not make any effort to
validate that advice.”
[16]
Ms.
Vinciguerra concluded that the transfer was illegal because DFO procedure was contravened
and neither the Court nor Murray Reid approved the transfer of the nomination.
She closed the letter by stating:
Mr.
Reid would be grateful if you could copy this correspondence to the Appeal
Board as I understand you would do in our telephone conversation of today’s
date.
[Emphasis mine]
[17]
The
Resource Manager replied on August 24, 2006. She stated she was unable to forward
“your matter to the Licence Appeal Board for its consideration.” She gave one
reason: “your situation does not fit with the terms of reference of the Pacific
Region
Licence
Review Board” which confine it to “making recommendations to licensing
decisions that were rejected by DFO.” In her view this was a case where
the
licence
eligibility was accepted by DFO.
[18]
On
September 25, 2006 Mr. Reid’s partner wrote back to the Resource Manager. She
reviewed the previous correspondence and referred to some telephone
conversations. She stated the Resource Manager had indicated in a July 2006 telephone
conversation her September 2005 letter was not a decision but Mr. Reid’s licence was not returned to him
and that in her letter of August 24, 2006 the matter would not be submitted to
the Appeal Board because nothing was denied.
[19]
She
concluded if there was no decision and nothing denied she was once again
bringing to the Resource Manager the original request. She then formally
demanded “the return of the licence to Mr. Reid which had wrongfully been
transferred or your reasons for rejecting this request.”
[20]
On
October 24, 2006 the Resource Manager advised Mr. Reid DFO would not be
returning the
licence to him
for the reasons outlined in her correspondence to him of September 7, 2005 and
repeated the reasons why the Licence Appeal Board would not be seized of the matter.
Analysis
[21]
An
application for judicial review should not be struck unless the Court comes to
the conclusion the application “is so clearly improper as to be bereft of any
possibility of success”.
[22]
I
take into consideration the fact the Applicant was self-represented when he
filed his application for judicial review. He is now represented by counsel.
[23]
Counsel
for the Applicant made a valiant effort to recalibrate that part of his relief
which seeks a mandamus “requiring DFO to provide a decision to the Applicant on
his request for the return of the licence …ZN/04”.
[24]
His
counsel in a letter to counsel for the Respondent stated that Mr. Reid “was not
challenging at this stage, DFO’s decision to transfer the subject licence without his instructions
and contrary to Court order. That is for the Licence Appeal Board should it
decide to hear his appeal. At this stage, Mr. Reid is challenging the DFO’s
decision refusing to forward his appeal to the Licence Appeal Board.”
[25]
In
my view the wording of the mandamus request in the Applicant’s judicial review
application, however generously those words are interpreted acknowledging they
were written by lay litigants, cannot be reasonably understood to request a
review by the
Licence
Appeal Board.
[26]
The
wording of the mandamus request is derived directly from the Applicant’s
partner’s letter of September 25, 2006 which specifically asked for the return
of the
licence.
[27]
On
October 24, 2006, the Resource Manager advised Mr. Reid the Department would
not be returning his licence to him for the reasons stated in her September
2005 letter, namely that it had been properly transferred.
[28]
The
responses by the Resource Manager of September 2005 and October 2006 make moot
the request for mandamus sought in the Applicant’s judicial review application.
[29]
I
have two problems with the declaratory relief sought. First, it is considerably
out of time since the licence was transferred in July 2003 and no application
for extension of time was sought despite the Applicant knowing about it.
Second, the Applicant, in his affidavit, does not tell the Court what happened
to the proceeds of sale, when he received those proceeds and what
representations were made by his lawyer before Justice Romilly on August 27,
2003. Indeed it may be that the British Columbia Supreme Court is the
appropriate body from whom to seek the declaration. I need not decide the
point because it is sufficient for the purposes of this ruling to hold the
proceeding cannot continue because a condition precedence to jurisdiction has
not been established.
[30]
This
judicial review application should be struck because it was improperly launched
and as it now stands cannot succeed.
[31]
I
would, however, grant leave to the Applicant to re-file a fresh application
which accurately reflects the relief sought by that Applicant. It may well be
that the Applicant had a legitimate expectation DFO would seize the Licence
Appeal Board with his appeal as the evidence would support a promise to do so
(see paragraph 16 of these Reasons).
[32]
If
the Applicant re-files, he should rethink whether the declaratory relief should
remain in light of this Court’s questioning and his counsel’s response. In any
event, an extension of time would be required and a full explanation given
relating to the circumstances of the sale of his licence ZN/04, the receipt of
funds and court representations to Justice Romilly.
JUDGMENT
This application for judicial review
is struck with costs and with leave to file a fresh application within thirty
(30) days of this Judgment.
"François Lemieux"
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