Date:
20101005
Docket: A-520-09
Citation: 2010 FCA 257
CORAM: BLAIS
C.J.
DAWSON J.A.
STRATAS
J.A.
BETWEEN:
ALBERT RALPH
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR
JUDGMENT
DAWSON J.A.
[1] The Atlantic
Fisheries License Appeal Board (Board) was established by the Minister of
Fisheries and Oceans (Minister) to be the last administrative level of appeal
for fishers who are dissatisfied with licensing decisions made by the
Department of Fisheries and Oceans (DFO). The mandate of the Board is to make
recommendations to the Minister on license appeals by:
i. determining
if the appellant was treated fairly in accordance with DFO's licensing
policies, practices and procedures; and
ii.
determining
if extenuating circumstances exist for deviation from established policies,
practices or procedures.
The final decision to accept or reject the
Board’s recommendations is made by the Minister.
[2] Albert
Ralph is licensed as a core enterprise fisherman by DFO. In 1988, 1989 and
1990 Mr. Ralph was licensed by DFO to participate in a supplementary crab
fishery. In 1991, Mr. Ralph again applied for a supplementary crab license;
however no license was issued to him by DFO in 1991.
[3] Mr.
Ralph appealed to the Board from the decision not to issue a supplementary crab
license to him. The Board recommended to the Minister that the appeal be
denied because DFO policies and procedures were applied correctly, and the
Board could find no extenuating circumstances to justify departure from
existing policies, practices or procedures. After receiving the Board's
report, the Minister denied Mr. Ralph's appeal. A judge of the Federal Court
dismissed an application for judicial review of the Minister's decision in
reasons cited as 2009 FC 1239 and reported as (2009), 354 F.T.R. 312.
[4] On
this appeal from the decision of the Federal Court Mr. Ralph puts in issue the
findings of the Board, and subsequently the Minister, that in refusing to issue
a license DFO procedures were applied correctly, and there were no extenuating
circumstances to justify departure from the existing policies, practices or
procedures.
[5] For the following reasons I would dismiss the appeal without
costs.
The Facts
[6] The
following additional facts are relevant to the issues before this Court.
[7] In
order to qualify for a supplementary crab license in 1988, the Crab Management
Plan required applicants to:
(a)
be
resident in the management area for which the licenses were available;
(b)
own
or operate a registered commercial fishing vessel that was not less than 35
feet in length overall (LOA) or was 10 gross tons and did not exceed
64'11" LOA; and
(c)
possess
a groundfish license for management areas 2+3KL or Sector I.
[8] The
applications filed by Mr. Ralph for supplementary crab licenses in 1988, 1989
and 1990 were made in respect of the Motor Vessel "Misty Dawn" (see
pages 89, 101 and 103 of the appeal book). In the 1988 crab license and the
1989 Limited Fishery Application, both signed by Mr. Ralph, the M.V. Misty
Dawn was described to be 35 feet LOA. No gross tonnage was specified.
[9] On
April 7, 1989, the "1989 Crab Management Plan Newfoundland Region"
was publicly announced. The second requirement for the issuance of a
supplementary crab license, that is item (b) in paragraph 7 above, was revised
in this management plan. Reference to gross tonnage was removed. Instead, an
applicant was required to:
(b) operate
a registered commercial fishing vessel that is not less than 35 feet LOA and
does not exceed 64'11" LOA.
Requirements (a) and (c) remained
unchanged.
[10] In
April, 1990, Mr. Ralph requested of DFO that the groundfish fixed gear license
issued to him in relation to the M.V. Misty Dawn be relinquished and be
re-issued to his son, Shawn Ralph. Registration of the vessel was also
transferred to Shawn Ralph. There is no evidence that Mr. Ralph possessed any
groundfish license after this license was relinquished. In the written "Application
for Relinquishment of Rights", Mr. Ralph acknowledged that any future
requests to re-enter the crab fishery would be subject to the licensing policy
or management plan in effect at the time of any request.
[11] No
supplementary crab license was issued to Mr. Ralph in 1991 or thereafter.
[12] In 1993, the Crab Management Plan imposed a freeze on the issuance
of new supplementary crab licenses.
[13] In
April, 1993, Mr. Ralph wrote to DFO requesting the reinstatement of his
supplementary crab license. He wrote again in January, 1994 and March, 1994. In
April, 1994, DFO responded, stating:
This will
acknowledge your correspondence regarding your Supplementary Crab Licence.
Information
on file indicates your crab licence was renewed in 1990. However, due to the
fact your 35’ vessel was reissued to your son, Shawn, for the purpose of
acquiring a vessel registration (Combining Policy) up to 64’11” LOA, you no
longer meet the criteria regarding vessel requirements to maintain the crab
licence.
In 1989, the
criteria for the issuance of Supplementary Crab Licences changed, restricting
the vessel to 35’ LOA and greater. Furthermore, the 1993 Crab Management Plan
imposed a freeze on the issuance of new licences.
In light of
these changes, we are not in a position to respond positively to your request.
The Decisions of the
Board and the Minister
[14] The
Board's decision denying Mr. Ralph’s appeal was brief. After reviewing the
information put before it, the Board wrote:
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
[sic.]. 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.
[15] The
Minister made his decision on the basis of the Board's recommendation. The
Minister's decision was expressed 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.
[16] When
the Minister adopts a recommendation of the Board, this Court has held that the
Board's decision is inexorably linked to the Minister's decision in the sense
that the Board's decision forms one of the bases for the exercise of
ministerial discretion. See: Jada Fishing Co. v. Canada (Minister of
Fisheries and Oceans) (2002), 288 N.R. 237 at paragraphs 12-13
(F.C.A.). This requires the reasons to be read together.
The First Issue: the
finding that DFO procedures were applied correctly
[17] Before
the Board Mr. Ralph argued that when he was issued a supplementary crab license
in 1988, DFO policy required an applicant to operate a vessel of at least 35
feet LOA or 10 gross tons. At the time he qualified for the license Mr. Ralph
was the registered owner of two vessels. One met the length requirement, the
other the tonnage requirement. Mr. Ralph further argued that when in 1990 he
transferred the registration of his 35 foot vessel, the M.V. Misty Dawn, he did
not transfer the right to his supplementary crab license. This was because Mr.
Ralph intended to continue to fish for crab using his other vessel that met the
gross tonnage requirement.
[18] As
can be seen from its reasons, the Board rejected that submission. The Board
found that the 1988 license was issued on the basis that Mr. Ralph owned a
vessel that was 35 feet in length, and was not issued on the basis of the gross
tonnage of any vessel. Once Mr. Ralph transferred his 35 foot vessel and
relinquished his greater than 35 foot groundfish fixed gear license he was no
longer eligible to hold a supplementary crab license.
[19] On the application for judicial review of the Minister’s decision, the Federal
Court Judge (Judge) found that the Minister’s decision to refuse to issue a
supplementary crab license was reviewable on the standard of reasonableness.
She then went on to consider that:
i.
The
Minister possesses broad discretion over the issuance of licenses. Reliance
was placed upon Comeau’s Sea Foods Ltd. v. Canada (Minister of
Fisheries and Oceans), [1997] 1 S.C.R. 12 at paragraphs 36-37.
ii.
Pursuant
to section 10 of the Fishery (General) Regulations, SOR/93-53, a license
expires at the end of the year in which it was granted. Licenses are re-issued
annually by the Minister in accordance with then prevailing policies.
iii.
The
Minister was entitled to change the Crab Management Policy in 1989.
iv.
Once
Mr. Ralph relinquished his groundfish fixed gear license attached to the M.V.
Misty Dawn, he was unable to meet the new regulatory policy.
v.
When
Mr. Ralph relinquished that right he acknowledged that his future ability to
re-enter the crab fishery would be dependent upon any change in policy.
vi.
The
Minister’s decision was reasonable. It properly took into consideration the
new policy with respect to the issuance of supplementary crab licenses.
[20] On
this appeal from that decision, this Court is required to determine whether the
Judge correctly identified the standard of review and then applied the standard
correctly to the Minister's decision. See: Canada Post Corp. v. Public
Service Alliance of Canada, 2010 FCA
56, (2010) 399 N.R. 127 at paragraph 84, and the authorities referred to
therein.
[21] Here,
the parties agree that the Judge applied the correct standard of review. The
standard applied by the Judge was reasonableness. The issues before the Board
and the Minister were questions of mixed fact and law, and such questions are
generally reviewable on the reasonableness standard. I agree the Judge applied
the correct standard of review.
[22] As
to the application of that standard of review, Mr. Ralph did not demonstrate
any error on the part of the Judge. I agree, substantially for the reasons
given by the Judge, that the Minister reasonably concluded that DFO policies
and procedures were applied correctly when DFO decided not to issue a
supplementary crab license to Mr. Ralph in 1991.
[23] In
this Court, Mr. Ralph’s counsel argued forcefully that it was wrong for the
Board to conclude that Mr. Ralph's supplementary crab license was issued on the
basis that the M.V. Misty Dawn was 35 feet in length. Reliance was placed upon
licensing documents that described the vessel to be both 10.61 meters and 35
feet in length. Counsel argued that because 10.61 meters converts to 34.81
feet, DFO and the Board knew, or ought to have known, that the M.V. Misty Dawn
was not 35 feet in length.
[24] In
my view, this submission does not assist Mr. Ralph for the following two
reasons. First, having applied for supplementary crab licenses on the basis of
the length of the M.V. Misty Dawn, and having received licenses on that basis,
it is difficult for Mr. Ralph to now argue his vessel did not meet the
requisite length requirement. More importantly in 1991, the first year a
supplementary crab license was not re-issued to Mr. Ralph, the Crab Management Plan
required applicants to operate a registered commercial fishery vessel that was
not less than 35 feet in length and to possess a groundfish license for
a vessel between 35 feet and 64'11" LOA. After Mr. Ralph transferred the
M.V. Misty Dawn and associated groundfish fixed gear license to his son, he no
longer met the qualifying criteria because he held neither a groundfish license
nor a vessel registration for a vessel over 35 feet in length. The applicable Crab
Management Plan required fishers applying for a supplementary crab license to
possess a groundfish licence. Mr. Ralph did not possess one, so his ownership
of a vessel of a certain tonnage was irrelevant.
The Second Issue:
extenuating circumstances
[25] Mr.
Ralph also argued in this Court that the Board failed to consider and to give
adequate reasons concerning whether in light of the unique facts before the
Board there were extenuating circumstances. The facts said to give rise to
extenuating circumstances were:
(a)
Mr.
Ralph asserted that several fishers in his area maintained supplementary crab
licenses throughout the 1990s for vessels less than 35 feet in length, but over
10 tons in weight.
(b)
Mr.
Ralph stated that in making his decision in 1990 to transfer his 35 foot vessel
to his son, he relied upon the fact that he could still qualify for a
supplementary crab license on the basis of owning a vessel of 10 gross tons.
[26] In
Shawn Ralph v. Attorney General of Canada, 2010 FCA 256, this Court
reviewed principles concerning the duty to give reasons and the assessment of
the adequacy of reasons. The Court concluded on the facts before it that the
Board was required as a matter of law to give reasons. With respect to the
adequacy of reasons, the Court concluded that there is no obligation on any
administrative decision-maker to write reasons on arguments that, in light of
the facts and the law, have no hope of success. I incorporate by reference
into these reasons paragraphs 17 to 19 of the reasons given in the case of Shawn
Ralph.
[27] Applying
those principles to the facts now before the Court, I conclude that at law the
Board was required to give reasons for its decision. This reflects the financial
significance to Mr. Ralph of the denial of access to the supplementary crab
fishery and the nature of this administrative process. As explained in Shawn
Ralph, at paragraph 22, the Minister does not have the benefit of hearing
or seeing the evidence given to the Board. Thus, reasons must be provided by
the Board in order for the Minister to be able to assess the Board’s
recommendation and make a decision.
[28] As
to the adequacy of the Board's reasons concerning extenuating circumstances, there
was no evidence before the Board with respect to any improper differential
treatment of crab fishers. At paragraph 13 of its reasons, the Board noted
that any right to harvest crab from a vessel under 35 feet was confined to
harvesters who had acquired their supplementary crab license under the greater
than 10 gross ton criterion. The Board found as a fact that Mr. Ralph did not
acquire his license under that criterion. That finding has not been shown to
be unreasonable. It follows that any exemption conferred on fishers who
qualified under the gross tonnage criterion were not applicable or available to
Mr. Ralph, who qualified under a different criterion. On the evidentiary basis
before the Board, its reasons adequately dealt with the issue of differential
treatment.
[29] With
respect to Mr. Ralph's asserted expectation that when he transferred the M.V.
Misty Dawn he believed he could qualify for a supplementary crab license on the
basis of the gross tonnage of another vessel, Mr. Ralph adduced no evidence
that after relinquishing his groundfish license in 1990 to his son he possessed
any other groundfish license. At all times from 1988 to at least 1991, it was
a requirement to obtain a supplementary crab license that the applicant possess
a groundfish license. No matter what the length or tonnage of any vessel owned
by Mr. Ralph in 1991, without possessing a groundfish license Mr. Ralph did not
meet the criteria for the issuance of a supplementary crab license. Mr. Ralph
has not shown how any belief that he could qualify for a license on the basis
of another vessel is relevant when he lacked a groundfish license. Irrelevant
considerations cannot constitute extenuating circumstances. It follows that Mr. Ralph has failed to demonstrate that this
issue was sufficiently arguable that the Board was required to expressly
explain why Mr. Ralph's belief that he could qualify for a license on the basis
of another vessel's gross tonnage was not an extenuating circumstance.
Conclusion
[31] For
these reasons, I would dismiss the appeal. As in the Shawn Ralph
decision, in my view, the terse manner in which the Board dismissed the claim
to extenuating circumstances makes this an appropriate case for each party to
bear their own costs.
“Eleanor R.
Dawson”
“I agree
Pierre Blais C.J.”
“I agree
David Stratas J.A.”
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