Date: 20000726
Docket: A-187-00
CORAM: DÉCARY, J.A.
LINDEN, J.A.
EVANS, J.A.
BETWEEN:
MATHEW HILL, on his own behalf
and on behalf of all other members of the KITRATLA BAND
Appellant
- and -
THE MINISTER OF FISHERIES AND OCEANS
AND THE FISHERIES MANAGEMENT COORDINATOR - PRINCE RUPERT
Respondents
Disposed of in writing at Ottawa, Ontario, on July 26, 2000.
Order rendered at Ottawa, Ontario, on July 26, 2000.
REASONS FOR ORDER BY: EVANS, J.A.
CONCURRED IN BY: DÉCARY, J.A.
LINDEN, J.A.
Date: 20000726
Docket: A-187-00
LINDEN, J.A.
EVANS, J.A.
BETWEEN:
MATHEW HILL, on his own behalf
and on behalf of all other members of the KITRATLA BAND
Appellant
- and -
THE MINISTER OF FISHERIES AND OCEANS
AND THE FISHERIES MANAGEMENT COORDINATOR - PRINCE RUPERT
Respondents
REASONS FOR ORDER
EVANS J.A.
[1] This is a motion under Rule 369 of the Federal Court Rules, 1998 brought on behalf of the Minister of Fisheries and Oceans, and the Fisheries Management Coordinator, Prince Rupert, the respondents in the appeal. The order sought is that the appeal be dismissed as moot.
[2] The decision under appeal was rendered on March 17, 2000 by MacKay J. of the Trial Division, in which he dismissed a motion by the appellants for an interim injunction to restrain the respondents from approving the opening of certain fisheries in the year 2000, pending the hearing of an application for judicial review. In the main proceeding the appellants challenge the legality of a decision of the Minister to approve a management plan in so far as it authorised the harvest in 2000 of herring roe in Kitkatla Inlet, which is on the north coast of British Columbia and adjacent to the home reserve of the Kitkatla Band, appellants in the appeal from which the motion arises. The remedy sought in the application for judicial review is a permanent injunction to restrain the Fisheries Management Coordinator from authorising the opening in 2000 of certain fisheries in Kitkatla Inlet
[3] Applying the familiar tripartite test in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, MacKay J. dismissed the motion for an interim injunction on the ground that, while the issues raised in the judicial review application were serious, the appellants had not satisfied him that they would either suffer irreparable harm if interim relief were not granted, or that the balance of convenience favoured the grant of the relief sought.
[4] Following this decision, the respondents approved the opening of the fisheries in question for just over thirteen hours in March of this year. In an affidavit sworn in support of the respondents" motion to dismiss the appeal, Jimmy Stewart of the City of Prince Rupert, the Fisheries Manager, North Coast, stated that, since the fisheries in question concern herring roe, and herring spawn only once a year, there is no possibility of another opening this year. Consequently, the respondents submitted, the appeal has become moot.
[5] While conceding that the appeal is moot because it concerns the refusal of an interim injunction to restrain something that will not now occur, namely, the opening of the herring roe fisheries this year, the appellants submit that the Court should nonetheless exercise its residual discretion to hear the appeal pursuant to Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342.
[6] In particular, the underlying dispute between the parties concerns the legality of the Minister"s decision-making process in view of the impact of the decision on the appellants" treaty and constitutional rights. The impugned decision-making process is likely to continue beyond this year. In addition, given the very short period in which the fisheries are ever open it would be practically impossible for the appellants to be able to appeal; for the Court to dismiss this appeal as moot would not help to conserve judicial resources.
[7] In my opinion, the reply of the respondents to the appellants" memorandum is clearly correct: given that the matter is moot since the fisheries will not be opened again this year, this is not an appropriate case for the Court nonetheless to allow the appeal to continue in the exercise of its discretion.
[8] Since the appeal is from the refusal of an interim injunction, there has been no final determination of the legality of the Minister"s decision-making process, and in particular whether it involves the exercise of an unstructured grant of discretion which cannot constitutionally impinge on the appellants" legal rights. Nor would the Court have a factual record before it against which to decide the important legal issues in dispute.
[9] It is open to the appellants to proceed with the main application for judicial review, which has not yet been heard. A decision on the merits of the application in the Trial Division can be the subject of an appeal to this Court. Even if the current appeal is dismissed for mootness, the appellants can thus still bring them before this Court for its determination. The issues in dispute are therefore not "elusive of review".
[10] For these reasons, I would grant the respondents" motion and dismiss the appellants" appeal.
"John M. Evans"
J.A.
"I agree"
Robert Décary, J.A.
"I agree"
A.M. L., J.A.
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