Comeau's Sea Foods Ltd. v. Canada (Minister of Fisheries and Oceans), [1997] 1 SCR 12

Comeau’s Sea Foods Ltd. v. Canada (Minister of Fisheries and Oceans), [1997] 1 S.C.R.  12

 

Comeau’s Sea Foods Limited, a body corporate                             Appellant

 

v.

 

Her Majesty The Queen in Right of Canada                                   Respondent

 

Indexed as:  Comeau’s Sea Foods Ltd. v. Canada (Minister of Fisheries and Oceans)

 

File No.:  24682.

 

1996:  October 2; 1997:  January 30.

 

Present:  La Forest, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

 

on appeal from the federal court of appeal

 

                   Administrative law ‑‑ Fishing licences ‑‑ Authorization ‑‑ Minister of Fisheries and Oceans authorizing issuance of lobster licences to appellant ‑‑ Minister later deciding not to issue licences ‑‑ Whether Minister had authority to revoke authorization ‑‑ Fisheries Act, R.S.C., 1985, c. F‑14, s. 7 .

 

                   Crown ‑‑ Torts ‑‑ Negligence ‑‑ Minister of Fisheries and Oceans authorizing issuance of lobster licences to appellant ‑‑ Minister later deciding not to issue licences ‑‑ Whether Minister liable in negligence for appellant’s economic loss ‑‑ Whether duty of care and breach of requisite standard established.

 

                   In 1987, the Minister of Fisheries and Oceans sent the appellant fishing company a telex advising that he had authorized the issue of four offshore lobster licences.  The telex specifically allocated the appellant’s allowable catch for the fishing year.  It also stated that regional officials would contact the appellant to discuss specific conditions of the proposed licences.  Several other applicants received similar authorizations from the Minister on the same date.  In January 1988 the Department of Fisheries and Oceans notified the applicants in respect of whom an authorization had been issued to submit fishing plans for the balance of the current season for each vessel intended for the lobster fishery.  The appellant provided all the necessary details to the Department by letter.  It advised that the vessels that were to be used to fish lobster were presently geared for the scallop fishery, and that work to convert them for the offshore lobster fishery was due to start  shortly.  The evidence was that it had incurred $500,000 in expenses in converting one scallop dragger into a lobster fishing vessel.  In March 1988 the Department advised its officials that no lobster fishery licences were to be issued without specific clearance from the Assistant Deputy Minister.  In the period following 1987, the issuance of offshore lobster fishing licences had become a political issue owing to heavy lobbying by the inshore lobster fishermen.  In April the Minister announced that the four offshore licences would not be issued in the foreseeable future, pending a study of the issues facing the lobster industry in the region.  This decision was confirmed to the appellant and the other applicants by letter.  The licences authorized to the appellant were never issued.  The Federal Court, Trial Division, held the respondent liable in negligence for the appellant’s economic loss.  The Federal Court of Appeal, in a majority decision, allowed the Crown’s appeal.

 

                   Held:  The appeal should be dismissed.

 

                   The Minister implementing government policy in the discharge of his office was not acting ultra vires in revoking the authorization he had previously given to issue offshore lobster fishery licences to the appellant.  The Minister’s power to issue fishing licences is found in s. 7  of the Fisheries Act , which accords the Minister an “absolute discretion” either to “issue” or to “authorize to be issued” fishing licences.  The statute expressly provides for the circumstances in which an issued licence may be revoked but is silent on the circumstances in which the Minister may cancel an authorization to issue a licence.  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.  This interpretation of the breadth of the Minister’s discretion is consonant with the overall policy of the Fisheries Act .  The Minister’s power to authorize the issuance of licences is a continuing power until such time as a licence is actually issued.  It follows that he retains the power to revoke the authorization at any time prior to the issuance of the licence.  The authorization to issue the licence did not confer upon the appellant an irrevocable legal right to a licence.   Unless and until the licence is actually issued, the Minister in furtherance of government policy may reevaluate or reconsider his initial decision  to authorize the licence.

 

                   The sole ground of negligence alleged by the appellant was breach of the “defendant’s statutory duty”.  Since the Minister had the continuing authority to revoke the authorization and did so legitimately for the purpose of implementing government policy, the appellant cannot establish any duty on the Minister actually to issue the licences previously authorized.  The duty owed to the appellant was the duty to exercise due care in ascertaining the scope of the Minister’s statutory authority under s. 7  of the Fisheries Act, and the Minister interpreted his statutory authority correctly.  It follows that there was no breach of the standard of care.

 

Cases Cited

 

                   Referred to:  Canadian National Railway Co. v. Norsk Pacific Steamship Co., [1992] 1 S.C.R. 1021; Carltona, Ltd. v. Commissioners of Works, [1943] 2 All E.R. 560; R. v. Harrison, [1977] 1 S.C.R. 238; Re Fisheries Act, 1914,  [1930] 1 D.L.R. 194, aff’g [1928] S.C.R. 457; Everett v. Canada (Minister of Fisheries and Oceans) (1994), 169 N.R. 100, aff’g in part (1993), 63 F.T.R. 279; Joliffe v. The Queen, [1986] 1 F.C. 511; Delisle v. Canada, [1991] F.C.J. No. 459 (QL); R. v. Halliday (1994), 129 N.S.R. (2d) 317; Thomson v. Minister of Fisheries and Oceans, F.C.T.D., No. T‑113‑84, February 29, 1984; Lawrie v. Lees (1881), 7 App. Cas. 19; Reference re Maritime Freight Rates Act, [1933] S.C.R. 423; C.W.C. v. Canada (Attorney General), [1989] 1 F.C. 643.

 

Statutes and Regulations Cited

 

Act to amend the Fisheries Act, S.C. 1929, c. 42, s. 2.

 

Fisheries Act , R.S.C., 1985, c. F‑14 , ss. 7 , 9  [rep. & sub. c. 31 (1st Supp.), s. 95], 20‑22, 35‑40, 43.

 

Fisheries Act, S.C. 1868, c. 60, s. 2.

 

Interpretation Act , R.S.C., 1985, c. I‑21 , s. 31(3) .

 

Interpretation Act, 1889 (U.K.), 52 & 53 Vict., c. 63, s. 32(1).

 

Authors Cited

 

Halsbury’s Statutes of England and Wales, vol. 41, 4th ed.  London:  Butterworths, 1995 (reissue).

 

Wade, Sir William.  Administrative Law, 7th ed.  By Sir William Wade and Christopher Forsyth.  Oxford:  Clarendon Press, 1994.

 

Willis, John.  “Delegatus non potest delegare” (1943), 21 Can. Bar Rev. 257.

 

                   APPEAL from a judgment of the Federal Court of Appeal, [1995] 2 F.C. 467, 123 D.L.R. (4th) 180, 179 N.R. 241, 29 Admin. L.R. (2d) 264, 24 C.C.L.T. (2d) 1, reversing a decision of the Federal Court, Trial Division, [1992] 3 F.C. 54, 54 F.T.R. 20, 11 C.C.L.T. (2d) 241, finding the respondent liable in negligence for failure to issue fishing licences.  Appeal dismissed.

 

                   Stewart McInnes, Q.C., and David S. MacDougall, for the appellant.

 

                   David Sgayias, Q.C., and Michael F. Donovan, for the respondent.

 

                   The judgment of the Court was delivered by

 

1                        Major J. -- The appellant commenced an action against the respondent arising out of the failure of the respondent Minister of Fisheries and Oceans (“the Minister”) to issue certain lobster fishery licences which had previously been authorized to be issued under s. 7  of the Fisheries Act , R.S.C., 1985, c. F-14 .

 

I.  Facts

 

1                        The appellant is a Nova Scotia integrated fishing company, operating off the southwest coast of Nova Scotia.  It operates some 15 sea-going vessels and in peak season employs up to one thousand people. 

 

1                        In 1987, the appellant applied for offshore lobster licences.  In all, 13 applications for new offshore lobster licences were received by the respondent Minister in that year.  At the time, there were 1,601 inshore lobster fishery licences in the area extending approximately 50 miles from  the southwest coast of Nova Scotia and eight offshore lobster fishery licences operating beyond the inshore fishery areas.

 

1                        In September 1987, representatives of the appellant company spoke with the respondent Minister, and were assured that the appellant would definitely get at least one offshore lobster licence.  On December 29, 1987, the Minister sent the appellant a telex to advise that he had authorized the issue of four offshore lobster licences in total to the appellant, “two offshore lobster licences” and “two experimental offshore lobster/red crab licences” for the season from October 15, 1987 to October 14, 1988.  The telex specifically allocated the appellant’s allowable catch for the fishing year.  It also stated that regional officials would contact the appellant to discuss specific conditions of the proposed licences.  Several other applicants received similar authorizations from the Minister on the same date.

 

1                        On January 27, 1988, the Department of Fisheries and Oceans notified the applicants  in respect of whom an authorization had been issued to submit fishing plans for the balance of the current season for each vessel intended for the lobster fishery.  The appellant provided all the necessary details to the Department by letter dated January 29, 1988.  It advised that the vessels that were to be used to fish lobster were presently geared for the scallop fishery, and that work to convert them for the offshore lobster fishery was due to start  shortly.  The appellant planned that the vessels would be ready in April.  The evidence was that it had incurred $500,000 in expenses in converting one scallop dragger into a lobster fishing vessel.

 

1                        At trial, the Department confirmed that had the appellant requested, between January and March 8, 1988, that the authorizations for licences be converted to the actual issued licences, it would have issued them subject to appropriate conditions, if any.

 

1                        On March 8, 1988, the Department advised its officials that no lobster fishery licences were to be issued without specific clearance from the Assistant Deputy Minister.

 

1                        In the period following 1987, the issuance of offshore lobster fishing licences had become a political issue owing to heavy lobbying by the inshore lobster fishermen.  The scientific evidence produced in a report of the Canadian Atlantic Fishery Scientific Advisory Committee at about this time indicated that no harmful effects would ensue as a result of the new offshore lobster licences.

 

1                        Initially, the Minister took the position that there was no evidence of any likely harmful effect from the increase in the lobster fishery.  However, after a meeting between the respondent Minister and the  Scotia-Fundy Lobster Advisory Committee  in Halifax on March 30, 1988, the Minister decided that he would not cancel the new offshore licences, but was prepared to impose the conditions necessary to respond to the concerns of the inshore fishing industry. 

 

1                        On April 29, 1988, the Minister announced in a press release that the four experimental offshore licences would not be issued in the foreseeable future, pending a study of the issues facing the lobster industry in the Scotia-Fundy region.  This decision was confirmed to the appellant and the other applicants by letter dated May 31, 1988.  The licences authorized to the appellant were never issued.

 

II.  Legislation

 

1                 Fisheries Act , R.S.C., 1985, c. F-14 

 

                   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.

 

 

                   9.  The Minister may suspend or cancel any lease or licence issued under the authority of this Act, if

 

(a)               the Minister has ascertained that the operations under the lease or licence were not conducted in conformity with its provisions; and

 

(b)               no proceedings under this Act have been commenced with respect to the operations under the lease or licence.

 

III.  Judicial History

 

Federal Court, Trial Division, [1992] 3 F.C. 54

 

1                        Only the issue of liability was before the trial judge, the question of damages having been deferred by agreement.  In the original statement of claim, breach of contract was pleaded.  At trial, amendments were permitted for the addition of claims in negligence and wrongful revocation of an “irrevocable legal act”.  The proposed amendment for the inclusion of promissory estoppel as a ground for the claim was denied.

 

1                        On the issue of the scope of the Minister’s statutory duty under s. 7  of the Fisheries Act , the trial judge considered that the Minister’s authorization to issue a licence was  “definitive” (p. 67).  When the authorization was announced on December 29, 1987, the Minister allocated an allowable catch to the appellant for 1987-88 in a proportion approximately equal to the portion of the 1987-88 fishing season remaining after that date.  By January 1988, the appellant was treated as if it already were a "licence holder".  When the Minister authorized the issue of the licences to the appellant, he had exhausted his discretion under s. 7  of the Fisheries Act .  The trial judge noted that the restrictions on the suspension or cancellation of licences provided in s. 9  of the Fisheries Act  did not apply since no licence had actually been issued.

 

1                        The trial judge considered that even if s. 7  of the Fisheries Act  had expressly empowered the Minister to withdraw his authorization, the withdrawal  amounted to actionable negligence.  He held first that there was a duty of care owed by the respondent to the appellant by virtue of the proximity created by the Minister's representation to the appellant on December 29, 1987 that the licences would be issued.  Second, there was a breach of the requisite standard of care because it was “perfectly foreseeable that any departure from the line of conduct (i.e. the issue of the licences) previously announced by the Minister ... would have a harmful effect on the [appellant]” (p. 72).  Third, even though the loss suffered appeared to be pure economic loss, because it was a direct result of the Minister's change of position, the trial judge held that there was sufficient “circumstantial proximity” (per Canadian National Railway Co. v. Norsk Pacific Steamship Co., [1992] 1 S.C.R. 1021) to hold the respondent liable for the appellant’s economic loss.

 

1                        On the policy exemption from duty, the trial judge observed that the rationale for the policy exemption assumes that the policy decision is authorized by statute, but in this case the revocation of the authorization was ultra vires and was not protected by the policy exemption.

 

1                        The appellant’s claims in contract and for wrongful revocation of an "irrevocable legal act" were dismissed by the trial judge.

 

Federal Court of Appeal, [1995] 2 F.C. 467

 

1                        The Federal Court of Appeal in a 2-1 decision allowed the appeal by the Crown.  The judges were unanimous in dismissing the present appellant’s cross-appeal on contract liability and for wrongful revocation of an irrevocable act.  They also agreed with the trial judge that by virtue of s. 7  of the Fisheries Act , the Minister’s revocation of the authorization for the licences was ultra vires.  Stone and Robertson JJ.A., in separate and different reasons, allowed the respondent’s appeal on the finding of liability in negligence.  Linden J.A. dissented and would have dismissed the respondent’s appeal.

 

1                        Stone J.A. allowed the Minister’s appeal on the basis that the existence of adequate administrative law remedies in certiorari  or mandamus negated the scope of the prima facie duty of care owed by the respondent Minister to the appellant.

 

1                        Robertson J.A. allowed the Minister’s appeal on the grounds that the decision to issue the licence was a policy decision and therefore the duty to issue the licence was negated.  Under the alternative duty requiring the Minister to act reasonably in ascertaining whether he had the legal authority to revoke the earlier authorization, Robertson J.A. found that the Minister did not breach the requisite standard of care.

 

1                        Linden J.A. in dissent substantially agreed with the trial judge that once the policy decision to authorize the issuance of the licences had been made, no policy issues remained to be resolved and that the respondent Minister was therefore liable in negligence because there was no policy immunity for the revocation decision.

 

IV.  Analysis

 

1                        The question which arises on this appeal is whether the Minister once having authorized the granting of fishing licences had the authority to revoke that authorization.  The trial judge and the Court of Appeal, although disagreeing in the result, agreed that in revoking the authorization to issue the  licences, the Minister was acting ultra vires.  With respect, I disagree.

 

1                        The Minister’s power to issue fishing licences is found in s. 7  of the Fisheries Act .  The section accords the Minister an “absolute discretion” to either “issue” or “authorize to be issued” fishing licences:

 

                   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.

 

The power to suspend or cancel a licence once issued is found in s. 9:

 

                   9.    The Minister may suspend or cancel any lease or licence issued under the authority of this Act, if

 

(a)               the Minister has ascertained that the operations under the lease or licence were not conducted in conformity with its provisions; and

 

(b)               no proceedings under this Act have been commenced with respect to the operations under the lease or licence.

 

1                        I agree that s. 9 applies to issued licences only.  It is clear from the evidence that the respondent Minister’s telex of December 29, 1987, was an authorization to issue a fishing licence within the meaning of s. 7 and that the announcement of April 29, 1988, revoked that authorization.

 

1                        The statute expressly provides for the circumstances in which an issued licence may be revoked but it is silent on the circumstances in which the Minister may  cancel an authorization to issue a licence. The trial judge and Court of Appeal held that a licence once authorized is as good as issued.  If this is so, once the Minister authorized the issuance of a licence, he could not revoke the authorization although he could by virtue of s. 9 revoke the issued licence.

 

1                        There is a “gap” in the Fisheries Act to the extent that the text gives no direction as to whether the Minister can revoke an authorization previously given.  The twofold powers of the Minister under s. 7 date from the Fisheries Act, S.C. 1868, c. 60, s. 2, and are unique in that unlike any other federal statute he has both the power to issue the licence and the power to authorize its issuance.

 

1                        The appellant argued that the Minister under s. 7 had the power either to authorize the issuance of a licence or to actually issue the licence and that if the Minister chose to authorize the issuance of a licence, he retained no continuing role in respect of an authorized licence.  I disagree.

 

1                        If Parliament chose to confer on the Minister twofold powers of issuance and authorization to issue, then it must have intended that the two powers be distinct.  However, the effect of the distinction is clearer if viewed in an historical perspective.

 

1                        The express delegation or devolution of powers to departmental officials found in s. 7 may appear unnecessary today.  Where power is entrusted to a Minister of the Crown, the acts will generally be performed not by the Minister but by delegation to responsible officials in his department:  Carltona, Ltd. v. Commissioners of Works, [1943] 2 All E.R. 560 (C.A.); R. v. Harrison, [1977] 1 S.C.R. 238, at pp. 245-46.  At the time of the initial enactment of s. 7, the prima facie presumption of statutory construction which grew up around the Latin maxim delegatus non potest delegare that “[a] discretion conferred by statute is ... intended to be exercised by the authority on which the statute has conferred it and by no other authority” may have operated more strongly.  Express delegation was generally thought necessary.  See John Willis, “Delegatus non potest delegare” (1943), 21 Can. Bar Rev. 257, at p. 259 and generally for a review of the earlier authorities. 

 

1                        Clearly, the purpose of s. 7 is the issuance of licences.  In my view, nothing more is meant by the express devolution of authority to the Minister’s officials than a method for issuing licences by the Minister through delegates.  The section is not directed towards the authorization of licences; that is not the object or the finality of the section.  Rather, it is directed to the issuance of licences which, once issued, require special provisions to abrogate them.  Whether the Minister decides as an initial step to authorize the issuance of a licence, there is no finality to this authorization for any of the parties concerned until such time as the licence is finally issued.  It is in light of the purpose of the section that we must consider whether the Minister could revoke the authorization while it subsisted.

 

1                        The question of whether the Minister could revoke a subsisting authorization must be considered having regard to his or her overall discretion under s. 7.  The scope of the Minister’s discretion under s. 7 of the Fisheries Act  has been judicially considered.  In Re Fisheries Act, 1914,  [1930] 1 D.L.R. 194, at pp.  200-201, the Privy Council in confirming the majority of the Supreme Court of Canada, [1928] S.C.R. 457, held that under the wording of the then Fisheries Act there was no express provision nor necessary implication to be found permitting the Minister a discretion to refuse to issue a fishing licence, when applied for by a qualified applicant.

1                        In 1929, the Fisheries Act was amended to add the words “in his absolute discretion” following the word “may” in S.C. 1929, c. 42, s. 2.  In the 1985 amendment to the Fisheries Act, the adjective “absolue” was dropped in the French text.  The dropping of the qualifier “absolue” in the French version merely indicates that the translator regarded the French term “à discrétion” as equivalent to the English phrase, “in his absolute discretion.”  See Everett v. Canada (Minister of Fisheries and Oceans) (1994), 169 N.R. 100 (F.C.A.), per MacGuigan J.A. at p. 105:

 

A discretion, whether or not described as absolute, is subject to the same legal limitations, and in my opinion the term “absolute” in the English version of the statute is redundant.

 

1                        In Everett, the Minister had refused to issue a groundfish ottertrawl licence to the applicant for 1993.  This was based on an investigation and finding by the Department that  in 1990, Everett had exceeded his cod quota by approximately 57,363 pounds.  Everett’s position was that the Minister’s actions amounted to a suspension or a cancellation of the applicant’s fishing licence, and that the governing provision was s. 9 of the Fisheries Act.  At trial (1993), 63 F.T.R. 279, at pp. 283-84, Denault  J. followed Joliffe v. The Queen, [1986] 1 F.C. 511 (T.D.), and held that the Minister was not suspending or cancelling an existing licence but was simply refusing to issue a licence for 1993.  The Federal Court of Appeal, in the decision cited supra, affirmed that finding.

 

1                        Joliffe held that there is no such thing as a vested right in a licence beyond those rights granted for the period for which the licence was issued.  In Joliffe, the plaintiffs sought a declaration against the Minister on their entitlement to fish for salmon by purse seine after he had failed to deliver on assurances he had given them that he would re-issue a licence for salmon purse-seining.  Upon termination of a licence, the Minister has an “absolute discretion” in the issuance of new ones, per Strayer J. (later J.A.), at p. 520:

 

                   While there is a good deal of force in the contention of the plaintiffs that licences, because they have a recognized commercial value and are frequently bought and sold, should be regarded as vesting in their holders a right which is indefeasible except (as contemplated by section 9 of the Act) where there has been a breach of the conditions of the licence, I am unable to find support for that conception of licences in the Act or Regulations.  First, it must be underlined that no matter what the popular belief on the subject, by sections 34 and 37 of the Regulations no licence is valid for more than one year and expires as of March 31 in any given year.  It is true that by section 9 of the Act the Minister’s power to cancel licences is restricted to situations where there has been a breach of a condition of the licence, and no doubt in exercising that power of cancellation the Minister or his representatives would have to act fairly:  see Lapointe v. Min. of  Fisheries & Oceans (1984), 9 Admin. L R. 1 (F.C.T.D.).  But licences terminate each year and by section 7 the Minister has an “absolute discretion” in the issuance of new licences.  I am therefore unable to find a legal underpinning for the “vesting” of a licence beyond the rights which it gives for the year in which it was issued.

 

1                        In Delisle v. Canada, [1991] F.C.J. No. 459 (T.D.), it was held that the power conferred on the Minister by s. 7 of the Fisheries Act to issue a fishing licence implied the discretionary power to refuse to issue such a licence.

 

1                        While the existence of regulations under s. 43 of the Fisheries Act may restrict the Minister’s absolute discretion (R. v. Halliday (1994), 129 N.S.R. (2d) 317 (S.C.)), that is not an issue in this appeal.

 

1                        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.

 

1                        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.

 

1                        Under the Fisheries Act, the Minister has the additional authority to open and close fisheries (s. 43(a)), identify and prosecute those who damage or destroy fishery habitat (ss. 35-40), order the construction of fish-passes over fish-producing streams (ss. 20-22), or act to enhance fish-producing streams (s. 43(h) and (i)).

 

1                        What then is the nature of the Minister’s power with respect to authorizing the issuance of a licence?  The question is whether the Minister may revoke a subsisting authorization and in the words of the appellant, whether the Minister continues to have a “continuing role” with respect to the authorization or not.

 

1                        In light of the foregoing review on the purpose of s. 7 and the broad discretion afforded to the Minister in the exercise of his duties thereunder, it is my view that the Minister’s power to authorize the issuance of licences is a continuing power until such time as a licence is actually issued.  It follows that he retains the power to revoke the authorization at any time prior to the issuance of the licence.  Once the authorization is revoked, the person authorized no longer has the authority to issue the licence.  After the issuance, the ability to revoke is governed by s. 9 of the Act.

 

1                        Section 31(3)  of the Interpretation Act , R.S.C., 1985, c. I-21 , provides:

 

                   31. ...

 

                   (3)  Where a power is conferred or a duty imposed, the power may be exercised and the duty shall be performed from time to time as occasion requires.

 

The forerunner of this provision is the Interpretation Act, 1889 (U.K.), 52 & 53 Vict., c. 63, s. 32(1), which abolished the common law rule that a power conferred by statute was exhausted by a single exercise of the power (Halsbury’s Statutes (4th ed. 1995 Reissue), vol. 41, “Statutes” at p. 991).  The classic definition of the meaning of the phrase “from time to time” was enunciated in the decision of the House of Lords in Lawrie v. Lees (1881), 7 App. Cas. 19, at p. 29:

 

...the words “from time to time” are words which are constantly introduced where it is intended to protect a person who is empowered to act from the risk of having completely discharged his duty when he has once acted, and therefore not being able to act again in the same direction.  The meaning of the words “from time to time” is that after he has made one order he may make a fresh order to add something to it, or take something from it, or reverse it altogether ....

 

1                        However, Wade, Administrative Law, (7th ed. 1994), at pp. 261-62, argues that in applying this interpretive rule, one must distinguish between continuing powers and powers restricted to a single case:

 

                   In the interpretation of statutory powers and duties there is a rule that, unless the contrary intention appears, ‘the power may be exercised and the duty shall be performed from time to time as occasion requires’ (Interpretation Act  1978, s. 12).  But this gives a highly misleading view of the law where the power is a power to decide questions affecting legal rights.  In those cases the courts are strongly inclined to hold that the decision, once validly made, is an irrevocable legal act and cannot be recalled or revised.  The same arguments which require finality for the decisions of courts of law apply to the decisions of statutory tribunals, ministers and other authorities.

 

                   For this purpose a distinction has to be drawn between powers of a continuing character and powers which, once exercised, are finally expended so far as concerns the particular case.  An authority which has a duty to maintain highways or a power to take land by compulsory purchase may clearly act 'from time to time as occasion requires'.  But  if in a particular case it has to determine the amount of compensation or to fix the pension of an employee, there are equally clear reasons for imposing finality.  Citizens whose legal rights are determined administratively are entitled to know where they stand.

 

                   There is a third class of cases where there is power to decide questions affecting private rights but where there is also an inherent power to vary an order or power to entertain fresh proceedings and make a different decision.  Decisions on licensing applications and other decisions of policy will usually fall into this class, since policy is essentially variable.

 

1                        The power to issue the licence, once exercised in any single instance, is expended and may only be revised or revoked under the specific statutory conditions in s. 9.  However, the power to authorize is a continuing power within the meaning of s. 31(3)  of the Interpretation Act .  I do not think that the authorization to issue the licence conferred upon the appellant an irrevocable legal right to a licence.  Until the licence is issued, there is no licence and therefore no permission to do what is otherwise prohibited, namely fish for lobster in the offshore.  Unless and until the licence is actually issued, the Minister in furtherance of government policy may reevaluate or reconsider his initial decision  to authorize the licence.  Until the Minister actually issued the licence, he possessed a continuing power to reconsider his earlier decision to authorize and or issue the licence:  Reference re Maritime Freight Rates Act, [1933] S.C.R. 423.

 

1                        The appellant argued that the Minister was functus officio once he had authorized the issuance of an offshore lobster fishery licence.  I do not agree.  As Denault J. put it in C.W.C. v. Canada (Attorney General), [1989] 1 F.C. 643 (T.D.), at p. 652, “[i]n all cases where the authority to act is given by a statute or other instrument, it is a matter of interpretation whether the power may be exercised only once or more than once”.

 

1                        In C.W.C., the Governor in Council, acting pursuant to s. 64(1) of the National Telecommunications Powers and Procedures Act, R.S.C. 1970, c. N-17, as amended by S.C. 1987, c. 34, s. 302, issued several Orders in Council varying or rescinding a specific order of the Canadian Radio-television and Telecommunications Commission more than once.  Under s. 64(1), there was a grant of an explicit power to vary or rescind any order or decision of the Commission “at any time”.  Denault J., at p. 656, decided that having regard for the legislative function which the Governor in Council was exercising, the subsection could not be construed as conferring a one-time-only statutory power to vary or rescind because that interpretation would “destroy the ability of the Governor in Council to respond to the immediate policy concerns of the day which transcend individual interest.”

 

1                        I agree with Denault J.  Here, as in that case, the Minister’s wide discretion must be interpreted in the light of the need to respond to immediate policy concerns affecting the fishery.

 

1                        The Minister in the instant case was not exercising a legislative function but was responding to what he felt were pressing and immediate concerns of the inshore lobster fishery.  With the revocation of the authorization on April 29, 1988, the Minister ordered further study of the issues facing the lobster industry in the Scotia-Fundy region.  He asked the Atlantic Regional Council to establish the terms of reference of a major socio-economic analysis of the state of the lobster industry generally in the Scotia-Fundy region.

 

1                        The study was completed in 1990 and it recommended that no new inshore or offshore licences be issued, since that could “influence the distribution of income derived from the lobster fishery, the ability of new entrants to gain access to the fishery and the relationship between the inshore and offshore fisheries”.

 

1                        It is only after a licence has been issued that the Fisheries Act imposes limits upon the Minister’s discretion.  No such limits are imposed upon the Minister’s authorization of a fishing licence and in the absence of any words or an indication of legislative intent to the contrary, none should be imposed.

 

1                        Where a Minister of the Crown is required by statute to exercise his or her discretion in reaction to immediate and pressing policy concerns, the Legislature can usually be taken to have intended that he or she be ultimately responsible to political authority.  In most instances the issuance of the licence would be expected to follow its authorization in short order.  Nonetheless, the time between the two does permit the Minister to assess his authorization in light of  government policy or a change in circumstances.

 

1                        It is my opinion that the Minister implementing government policy in the discharge of his office was not acting ultra vires in revoking the authorization he had previously given to issue offshore lobster fishery licences to the appellant.

 

1                        The determination of this issue alone is not sufficient to dispose of the appeal.  There remains the issue of whether the appellant can establish a duty of care and a breach of the requisite standard.

 

1                        The sole ground of negligence alleged by the appellant was breach of the “defendant’s statutory duty”.  In light of my conclusion that the Minister had the continuing authority to revoke the authorization and did so legitimately for the purpose of implementing government policy, the appellant cannot establish any duty on the Minister to actually issue the licences previously authorized.

 

1                        The respondent submitted that the duty owed to the appellant was the duty to exercise due care in ascertaining the scope of the Minister’s statutory authority under s. 7 of the Fisheries Act, and that the Minister interpreted his statutory authority correctly.  I agree.  It follows that there was no breach of the standard of care.

 

1                        In the absence of the appellant establishing a duty of care owed to it, the appeal fails.

 

1                        I do not see any merit in the appellant’s argument in contract and would dismiss the appeal on that ground as well.

 

1                        The trial judge and the Court of Appeal refused the amendment for the inclusion of the plea of promissory estoppel.  The  appellant did not pursue that ground before this Court.  These reasons do not express any opinion on the merits of that claim or any other claim differently framed.

 

1                        I would dismiss the appeal without costs.

 

                   Appeal dismissed without costs.

 

                   Solicitors for the appellant:  McInnes Cooper & Robertson, Halifax.

 

                   Solicitor for the respondent:  George Thomson, Ottawa.