Docket:
T-1944-08
Citation:
2017 FC 574
Toronto,
Ontario, June 12, 2017
PRESENT: The Honourable Mr. Justice Southcott
BETWEEN:
RICHARD GILLETT
Plaintiff
and
HER MAJESTY IN RIGHT OF CANADA
AND
KEVIN HURLEY
Defendants
JUDGMENT AND REASONS
I.
Overview
[1]
The Plaintiff in this action, Mr. Richard
Gillett, is a commercial fisher who resides in the Town of Twillingate, in the
Province of Newfoundland and Labrador. He holds a suite of fishing licenses,
applying to various species including capelin, and operates a fishing vessel
named the “Midnight Shadow”. Following decisions
by Mr. Gillett to lease his vessel to another commercial fisher operating in
the Province of Québec, the Canadian Department of Fisheries and Oceans [DFO] did
not permit Mr. Gillett to fish his capelin license in 2007 and 2008. He has
brought this action against DFO and Mr. Kevin Hurley, a DFO official who
communicated this decision to him, claiming lost revenues and other damages.
[2]
For the reasons that follow, I am dismissing Mr.
Gillett’s action. Mr. Gillett argues that his capelin license constitutes
property which was taken by the Defendants without compensation, that the
Defendants have committed the tort of misfeasance in public office, that the Defendants’
actions represent a breach of contract, and that Mr. Hurley’s actions represent
a tortious interference with Mr. Gillett’s economic relationship with DFO. As
explained in more detail below, my conclusion is that the evidence and
applicable authorities do not establish any of the causes of action that Mr.
Gillett asserts.
II.
Background
[3]
Mr. Gillett is a 45-year-old resident of
Twillingate, Newfoundland and Labrador, and has been fishing for the last 32
years. While he holds a variety of commercial fishing licenses and fishes
whichever species are available to him in a given year, this action relates to
the 2007 and 2008 capelin fisheries. Mr. Gillett operates the 44 foot fishing
vessel “Midnight Shadow”, which is equipped with
purse seine fishing gear and fishes in the mobile gear fleet in capelin fishing
areas 1 to 11 on the northeastern coast of Newfoundland.
[4]
In 2007, DFO implemented fisheries management
measures applicable to the Newfoundland and Labrador [NL] region, which
restricted the use of the vessels in the mobile gear fleet in the capelin
fishery. Pursuant to these management measures, a vessel in the mobile gear
fleet was permitted to fish in only one management area, and a capelin license
holder in the NL region who leased a vessel to another license holder,
including a license holder in another region, was not permitted to use the same
vessel to also fish the license holder’s own capelin license. These measures
were continued in 2008, the second fishing season to which Mr. Gillett’s claim
relates.
[5]
Although aware of these measures from
communications with DFO officials, Mr. Gillett made the decision in June 2007
to lease the “Midnight Shadow” to Mr. Roy
Griffin, a capelin license holder in the Québec region. As a result, DFO did
not issue license conditions to Mr. Gillet for the 2007 capelin season and “banked” his capelin license. Mr Gillet was therefore
unable to fish for capelin under that license in the 2007 season. Mr. Kevin
Hurley, who was then DFO’s Area Chief, Resource Management, for Central
Newfoundland, communicated this to Mr. Gillett by letter dated July 5, 2007. In
2008, Mr. Gillett again leased the “Midnight Shadow”
to Mr. Griffin, with the same result.
[6]
Mr. Gillett commenced this action in 2008,
asserting a claim for lost income that he says he would have earned had he been
permitted to fish capelin allocated to his license in 2007 and 2008, as well as
lost employment insurance and Canada Pension Plan benefits. He also claims
exemplary, aggravated and punitive damages, arguing that the Defendants’
conduct in this matter has been high-handed, improper and reprehensible so as
to justify damages of this nature.
III.
Witnesses
[7]
As encouraged through the Court’s case
management process, the parties prepared a Joint Book of Documents and agreed
to the admission of these documents at trial, without the need for proof
through witness testimony. As a result, the trial in this matter proceeded with
a limited number of witnesses, whose testimony was in turn relatively brief.
[8]
Mr. Gillett was the Plaintiff’s sole witness,
explaining his participation and that of his vessel in the capelin fishery, the
events (including communications with DFO officials) leading to his lease of
the vessel to Mr. Griffin and the banking of his license, and the calculation
of his claim. Mr. Gillett was cross-examined by the Defendants’ counsel and, as
acknowledged by counsel in closing argument, Mr. Gillett presented as a
forthright and credible witness.
[9]
The Defendants’ evidence was presented through
three witnesses, all of whom were cross-examined by the Plaintiff’s counsel and
also presented their evidence professionally and credibly. The Defendant, Kevin
Hurley, testified as to his role in the development of the management measures
that applied to the capelin fishery in 2007 and 2008, as well as his communications
with Mr. Gillett on the effect of Mr. Gillett’s decision to lease his vessel to
Mr. Griffin.
[10]
The Defendants also adduced evidence from two
Resource Managers working in DFO’s regional office in St. John’s. Ms. Annette
Rumbolt, the Resource Manager for licensing services for the NL region between
2005 and 2010, explained DFO’s licensing process and testified as to her role
in the development of the 2007 and 2008 management measures and how those
measures affected the application of the licensing process to Mr. Gillett. Mr.
Ray Walsh, the Resource Manager for pelagic species for the NL region between
2005 and 2008, was the DFO witness who most contributed to the substantive
content of the 2007 and 2008 capelin management measures. Mr. Walsh explained the
history behind these measures, their intent, and his communication with Mr.
Gillett about these measures in June 2007 before he leased his vessel to Mr.
Griffin.
[11]
To the extent significant to the outcome of this
action, the evidence of the parties and other witnesses is addressed in more
detail in the Analysis portion of this decision. As noted above, all witnesses
presented as credible, and my decision does not turn on preferring the evidence
of any witness over that of another.
IV.
Issues
[12]
In an Order dated January 15, 2016, issued by
Prothonotary Morneau following the pre-trial conference in this matter, the
following were identified as the issues and sub-issues to be determined at
trial:
A.
Whether the Plaintiff held a capelin license for
the 2007 season;
i.
Whether the licence, once granted, constitutes
property;
ii.
Whether the refusal by the Defendants, or either
one of them, to permit the Plaintiff to exercise the right to harvest capelin
was a taking without compensation;
B.
Whether the Plaintiff has established the
elements of misfeasance in public office;
C.
Whether the Plaintiff has established a breach
of contract;
D.
Whether the Plaintiff has established
interference with economic relations;
E.
In the event that any liability is found on the
part of the Defendants, what is the appropriate measure of damages?
[13]
Having heard the evidence and argument in this
matter, it is my view that these issues remain an appropriate framework for
adjudication of this action.
V.
Analysis
A.
Whether the Plaintiff held a capelin license for
the 2007 season
i.
Whether the licence, once granted,
constitutes property
[14]
The first cause of action advanced by Mr.
Gillett asserts that the Defendants’ refusal to permit him to harvest capelin
under his license in 2007 and 2008 represents a taking of a property right without
compensation. As such, this cause of action is premised on Mr. Gillett’s
position that he held a capelin license for the 2007 and 2008 seasons and that
such license, once issued, conferred a property right upon him. As explained
more fully below, I believe the question whether Mr. Gillett held this license is
best answered in combination with the question whether such license constitutes
property, as the answers to both questions turn on the particular rights that
Mr. Gillet argues the license conferred upon him.
[15]
In support of his position, Mr. Gillett relies
on a license document that was adduced in evidence. This document, prepared by
DFO and bearing the title “Licenses/Conditions and
Vessel Registration(s)” [the License Document], shows that it was
printed on June 28, 2007, refers to Mr. Gillett and his enterprise
identification number, refers to the vessel registration of the “Midnight Shadow”, and lists licenses for several
species including capelin. In relation to capelin, the License Document
describes the gear type as purse seine, identifies capelin fishing areas 1 to
11, and refers to a license fee of $30. Mr. Gillett’s argument is that, once he
paid the applicable fee and DFO provided the License Document to him, he had
been issued with a license which in turn created a property right.
[16]
The Defendants’ position is that Mr. Gillett did
not hold a valid license to harvest capelin in 2007 or 2008 and that the Court
therefore does not have to determine whether such a license would constitute property.
Nevertheless, the Defendants also take the position that such a license would
not confer a property interest upon Mr. Gillett and that there was therefore no
property right that could be subject to a taking without compensation.
[17]
The Defendants’ arguments are based principally
upon Ms. Rumbolt’s explanation of DFO’s licensing process. Ms. Rumbolt
explained that her duties at DFO’s regional headquarters in St. John’s included
responsibility for the licensing office which issued licenses and license conditions
to fishers and collected applicable fees. These documents are issued on an
annual cycle, which begins around the end of a calendar year when DFO mails license
renewal documentation to license holders. Any time before fishing the licence,
a license holder can pay the applicable fee, and DFO then issues a license
document. However, before the license holder is entitled to fish, he or she
must also have been issued license conditions. Ms. Rumbolt described the
license document as the “front page” and referred
to the conditions as “rules of the road”,
setting out measures applicable to specific fisheries.
[18]
Ms. Rumbolt explained that often license
conditions are not issued at the same time as the license document, because the
conditions have not yet been developed at the time the license holder pays the
fee and receives the license document. The development of conditions must await
the availability of scientific input applicable to the particular fishery and
consultation with industry stakeholders such as harvesters, the Fish, Food and
Allied Workers Union [FFAW] (which Mr. Hurley later described as representing
harvesters), Aboriginal groups, processors, and the provincial government. Ms.
Rumbolt testified that license conditions are sometimes not available until as
little as a few days before a particular fishery opens.
[19]
In relation to the License Document issued to
Mr. Gillett, Ms. Rumbolt referred to the print date of June 28, 2007 as the
date the document was issued, which showed that the applicable fees had been
paid by that date. She also pointed out express language on the face of the
document stating that “the License Holder cannot
operate any license without the license conditions for that fishery been
attached to this document”.
[20]
Ms. Rumbolt testified that either Kevin Hurley
or Ray Walsh gave her direction not to issue conditions for Mr. Gillett’s
capelin license for the 2007 season, because of new measures introduced for the
capelin fishery that year, and that either Ms. Rumbolt, Mr. Hurley or Mr. Walsh
made the decision to bank the license. Ms. Rumbolt explained that this decision
was made because Mr. Gillett had leased his vessel to a fisher in the Québec
region, such that he was ineligible under the 2007 policy to participate that
year in the capelin fishery in the NL region. As a result, the conditions
applicable to the License Document were not printed until November 14, 2007,
when DFO was preparing to issue license renewal documents for the following
year. Ms. Rumbolt described this as a process of cleaning up licensing
documentation in preparation for the upcoming renewal cycle. Mr. Hurley
testified that he was consulted and confirmed that it was acceptable for the
conditions to be printed as part of that cleanup process, because the capelin
fishery was by then closed.
[21]
Against this evidentiary backdrop, Mr. Gillett
argues that he held a capelin license as soon as the License Document was
issued to him on June 28, 2007, while the Defendants argue that he did not hold
a license, or at least not a valid one, because no license conditions had been
issued to him at that time. As jurisprudential support for his position, Mr. Gillett
relies on the decision of the Supreme Court of Canada in Saulnier v Royal
Bank of Canada, 2008 SCC 58 [Saulnier] and the decision of the
Federal Court of Appeal in Her Majesty the Queen v Haché, 2011 FCA 104 [Haché].
[22]
In Saulnier, the Supreme Court explained,
at paragraph 43, that a fishing license issued by the Minister of Fisheries and
Oceans under s. 7(1) of the Fisheries Act, RSC 1985, c F-14 conferred
upon the license holder a right to engage in an exclusive fishery under the
conditions imposed by the license and a proprietary right in the fish harvested
and the earnings from their sale. The Court held that the substance of what was
conferred, namely a license to participate in the fishery coupled with a
proprietary interest in the fish caught according to its terms and subject to
the Minister’s regulations, constituted a property interest for purposes of the
statutory definitions of “property” in the Bankruptcy
and Insolvency Act, RSC 1985, c B-3 and “personal
property” in the Personal Property Security Act, SNS 1995-96, c
13 (see Saulnier, paras 46 and 51).
[23]
Mr. Gillett notes that, in Haché, the
Federal Court of Appeal considered Saulnier and subsequently concluded
that fishing licenses were property within the meaning of s. 248(1) of the Income
Tax Act, RSC 1985, c 1 (5th Supp.) [ITA], such that the
respondent’s disposition of two commercial fishing licenses was taxable as a
capital gain. In reaching this decision, the Federal Court of Appeal overturned
the decision of the Tax Court of Canada (2010 TCC 10), which had distinguished Saulnier
on the basis that, in relation to the respondent’s groundfish license, the
respondent never received the conditions attached to his license. The Tax Court
had therefore concluded that the license was not valid and did not confer upon
him rights that could constitute property.
[24]
The Federal Court of Appeal considered the
effect of the license conditions, noting that the license document itself
stated that the license holder must not engage in fish harvesting before
receiving and attaching valid license conditions, and referring to the
regulatory authority for issuance of such conditions under s. 22 of the Fishery
(General) Regulations, SOR/93 – 53. The Court observed that the respondent
did not receive conditions attached to his groundfish license, because of the
moratorium imposed on groundfish stocks since the 1990s and, at paragraphs 34
to 35, analysed the effect of the absence of conditions as follows:
[34] I disagree. The licence authorizes
its holder to engage in exclusive fishing activities in compliance with the
conditions set out in the licence. The conditions attached to the licence merely
provide the framework for and limitations on engaging in the authorized
activity. The fact is that if the moratorium had been lifted, in whole or in
part, between January 2000 and May 2001, once the respondent received the
conditions for engaging in the activity, he could have put out to sea and
fished for groundfish because he held a valid licence for that period.
[35] As the appellant argues, if the
lack of conditions attached to the licence were to render it invalid, this
licence could not have been issued on April 19, 2000, or during previous years
when the moratorium was also in place. Moreover, why pay renewal fees for a
licence that will in all likelihood be invalid if not because this licence
gives its holder the exclusive right or authority to be part of the core and
participate in commercial fishing activities? Both the legislative enactments
and the evidence show that the fact that the respondent did not receive the
conditions attached to the licence presented no obstacle to his holding a “bundle
of rights” that he could have exercised once he received those conditions. The
licence itself, not the conditions that were attached to that licence from time
to time, is the source of the respondent’s rights to participate in an
exclusive commercial fishing activity. This distinction, which I consider
determinative, seems to have escaped the judge.
[25]
On the basis of this analysis in Haché,
Mr. Gillett argues that the fact no license conditions had been issued for his
capelin license in 2007 has no effect upon the property right that he received
upon issuance of the License Document.
[26]
In my view, the effect of the absence of license
conditions must be considered in the context of the particular property right
that Mr. Gillett argues was conferred upon him by the License Document. In Haché,
the proceeds from the respondent’s disposition of his license were treated
as a capital gain, because the license constituted a bundle of rights falling
within the definition of “property” in the ITA.
These were rights that the respondent was entitled to exercise, when and if
license conditions were issued. The Federal Court of Appeal therefore rejected
the contention that the license was invalid because of the absence of attached
license conditions.
[27]
Applying this analysis to Mr. Gillett’s capelin
license in 2007, he also held a bundle of rights that he could have exercised
once he received license conditions. However, I interpret Ms. Rumbolt’s
evidence to be that DFO declined to issue conditions for Mr. Gillett’s capelin
license in 2007 as a means of applying its fisheries management policy, because
Mr. Gillett had leased the midnight shadow to Mr. Griffin in 2007 and was
therefore ineligible under that policy to participate in the capelin fishery in
the NL region for that year. In defending this action, DFO takes the position
that Mr. Gillett’s license was “invalid”, because
no license conditions had been issued. I do not consider this to be a particularly
apt characterization of the status of the license, given the language employed
by the Federal Court of Appeal in the above quote from Haché and the
fact that the license still represented a bundle of rights. These rights
included, for instance, the right to seek renewal of the license the following
year and the right to harvest capelin once license conditions were issued.
However, these rights did not include the right to harvest capelin in the 2007
season, in circumstances where no conditions were issued to Mr. Gillet because he
was ineligible to participate in the fishery pursuant to the applicable DFO
licensing policy.
[28]
Taking into account this analysis, I find no
basis for a conclusion that Mr. Gillett’s 2007 capelin license conferred upon
him a property right of the sort he is asserting in this action. First, it is
important to recognize that the findings in Saulnier and Haché, that
the rights conferred by fishing licenses constituted property interests, were
made only for purposes of certain statutory definitions. This point was made by
the Federal Court of Appeal in its recent decision in Canada v 100193 P.E.I.
Inc., 2016 FCA 280 [100193 P.E.I. Inc. - FCA] (leave to appeal to
Supreme Court of Canada denied June 1, 2017), on appeal from a decision by the
Federal Court on a summary judgment motion (100193 P.E.I. Inc. v Canada,
2015 FC 932 [100193 P.E.I. Inc. - FC]). The Federal Court had declined
to dismiss an expropriation claim asserted by participants in the snow crab
fishery related to quota that had not been allocated to them. At paragraphs 13
to 17 of 100193 P.E.I. Inc. - FCA, the Federal Court of Appeal noted the
specific statutory context in which Saulnier and Haché had been
decided, observed that the law does not recognize a proprietary interest on the
part of fishers in uncaught fish or the fishery, and held that the Federal
Court should have dismissed the claim for compensation arising from
expropriation.
[29]
Similarly, in the recent decision in Anglehart
v Canada, 2016 FC 1159 [Anglehart], this Court considered claims by
crab fishers which asserted that the Crown had expropriated their property
rights by reducing their individual quota. Concluding that the scope of Saulnier
and Haché was limited to the legislative context in which those
decisions were rendered, Justice Gagné noted the comments from Justice Binnie at
paragraph 48 of Saulnier that the finding of the Supreme Court was made
for certain statutory purposes and did not fetter the Minister’s discretion
surrounding the management of the fishery. Justice Gagné also observed that a
fishing license is not normally considered property at common law and that the
bundle of rights described in Saulnier covered a property right in the
fish harvested and the earnings from their sale, not in a quota of uncaught
fish (see Anglehart, at paras 107 to115).
[30]
Anglehart
rejected the plaintiffs’ expropriation claim, applying at paragraph 160 the
reasoning of the Nova Scotia Supreme Court in Taylor v Dairy Farmers of Nova
Scotia, 2010 NSSC 436 (affirmed 2012 NSCA 1), which concluded that the milk
quotas afforded to Nova Scotia dairy farmers were not property capable of being
subject to expropriation.
[31]
I agree with and adopt the reasoning in 100193
P.E.I. Inc. - FCA and Anglehart as applicable to Mr. Gillett’s claim
for expropriation. Having been issued a License Document but no license conditions
applicable to the capelin fishery, because he was not eligible to participate
in that fishery in the NL region in 2007, Mr. Gillett did not hold the right to
participate in that fishery that year. He had no property right in uncaught
fish and therefore no such right which the law would characterize as property
capable of being subject to expropriation. This analysis applies equally to the
2008 capelin fishery, in which Mr. Gillett again chose to lease his vessel to
Mr. Griffin, such that he was again not entitled to participate in that fishery
in the NL region.
ii.
Whether the refusal by the Defendants, or
either one of them, to permit the Plaintiff to exercise the right to harvest
capelin was a taking without compensation
[32]
It therefore follows that the Defendants’
refusal to permit Mr. Gillett from harvesting capelin in the NL region in 2007
and 2008 was not a taking without compensation.
B.
Whether the Plaintiff has established the
elements of misfeasance in public office
[33]
Both parties rely on the decision of the Supreme
Court of Canada in Odhavji Estate v Woodhouse, 2003 SCC 69 [Odhavji
Estate] for an explanation of the elements of the tort of misfeasance in
public office. The Defendants referred to the following summary of these
elements provided in paragraph 32 of that decision:
32 To summarize, I am of the opinion
that the tort of misfeasance in a public office is an intentional tort whose
distinguishing elements are twofold: (i) deliberate unlawful conduct in the
exercise of public functions; and (ii) awareness that the conduct is unlawful
and likely to injure the plaintiff. Alongside deliberate unlawful conduct and
the requisite knowledge, a plaintiff must also prove the other requirements
common to all torts. More specifically, the plaintiff must prove that the
tortious conduct was the legal cause of his or her injuries, and that the
injuries suffered are compensable in tort law.
[34]
Mr. Gillett’s argument focuses on the two main
elements of this intentional tort and the following explanation, at paragraphs
22 to 23 of Odhavji Estate, of how those elements can be proved in the
case of a so-called Category A tort, which he submits was committed by the
Defendants in the case at hand:
22 What then are the essential
ingredients of the tort, at least insofar as it is necessary to determine the
issues that arise on the pleadings in this case? In Three Rivers, the
House of Lords held that the tort of misfeasance in a public office can arise
in one of two ways, what I shall call Category A and Category B. Category A
involves conduct that is specifically intended to injure a person or class of
persons. Category B involves a public officer who acts with knowledge both
that she or he has no power to do the act complained of and that the act is likely
to injure the plaintiff. This understanding of the tort has been endorsed by a
number of Canadian courts: see for example Powder Mountain Resorts, supra;
Alberta (Minister of Public Works, Supply and Services) (C.A.), supra;
and Granite Power Corp. v. Ontario, [2002] O.J. No. 2188 (QL) (S.C.J.).
It is important, however, to recall that the two categories merely represent
two different ways in which a public officer can commit the tort; in each
instance, the plaintiff must prove each of the tort’s constituent elements. It
is thus necessary to consider the elements that are common to each form of the
tort.
23 In my view, there are two such
elements. First, the public officer must have engaged in deliberate and
unlawful conduct in his or her capacity as a public officer. Second, the public
officer must have been aware both that his or her conduct was unlawful and that
it was likely to harm the plaintiff. What distinguishes one form of misfeasance
in a public office from the other is the manner in which the plaintiff proves
each ingredient of the tort. In Category B, the plaintiff must prove the two
ingredients of the tort independently of one another. In Category A, the
fact that the public officer has acted for the express purpose of harming the
plaintiff is sufficient to satisfy each ingredient of the tort, owing to the
fact that a public officer does not have the authority to exercise his or her
powers for an improper purpose, such as deliberately harming a member of the
public. In each instance, the tort involves deliberate disregard of
official duty coupled with knowledge that the misconduct is likely to injure
the plaintiff.
(Emphasis added)
[35]
Mr. Gillett’s position is that the Defendants’
adoption or application of the 2007 and 2008 capelin management measures,
preventing him from harvesting capelin under his license in those seasons, was
conduct specifically intended to injure both him personally and, as a class of
persons, license holders who wished to lease their vessels to others in the
Québec region. He submits that the evidence of the Defendants’ witnesses does
not explain how DFO’s policy objectives were advanced through these measures
and therefore that there must have been other reasons for their adoption. Mr.
Gillett argues that the management measures were created “on the fly” for reasons that are best known to the
DFO officials involved, but he also submits that the evidence of Ms. Rumbolt
provides the best insight into these reasons. Mr. Gillett submits that Ms. Rumbolt
testified that the intent was to prevent him from having an economic advantage
over others. He contends that these measures represent a cover or excuse
intended to prevent him from fishing.
[36]
An assessment of Mr. Gillett’s allegations
requires consideration of the evidence of all three DFO witnesses in relation
to the management measures adopted for the 2007 and 2008 capelin fishery. However,
the witness who appears to have provided the most substantive input into the development
of those measures was Mr. Ray Walsh, the Resource Manager for pelagic species (which
include capelin) for the NL region. Mr. Walsh was responsible for developing
and implementing policies for the management of pelagic species fisheries. In
carrying out that mandate, he conducted consultations with fishing industry
stakeholders and provided advice and recommendations to senior DFO management.
[37]
Mr. Walsh testified as to the recent history of
the capelin fishery which led to the policy measures adopted in 2007. Prior to
2004, markets for capelin were poor and there was little interest in the
fishery, with many issued licenses being inactive. However, in 2004, markets
were developing in Asia and Russia, the level of interest in the fishery
increased, and the total allowable catch [TAC] prescribed by DFO was caught in
full for the first time. There were cases where fleets were exceeding their
quotas, because this is a fishery in which harvesting activity proceeds
rapidly, usually just for a few days, and DFO struggled to get information on
harvesting volumes quickly enough to stop the fishery before quotas were
exceeded.
[38]
In 2005, DFO anticipated continued strong
interest in the capelin fishery and convened meetings with representatives of
the mobile and fixed gear fleets, the FFAW, processors and the provincial
government, to consider how to slow down the fishery and avoid gluts at the
wharf. Mr. Walsh explained that gluts would occur when vessels were landing
their catch at a rate faster than could be accommodated by processors,
resulting in dumping of fish or poor quality product as fish remained dockside
for too long a period before being processed. Gluts contributed to waste of the
resource and fishers not getting maximum value for their catch because of the
degradation in quality. The result of industry consultations was the adoption
of a daily limit on the quantity of fish that could be harvested by each mobile
gear vessel, as well as certain fixed gear fleets adopting a daily limit on a
trial basis.
[39]
In 2006, a high level of participation in the
capelin fishery was again anticipated, and DFO conducted meetings with industry
stakeholders to seek input on the level at which the TAC should be set and
which measures should be adopted to address the management challenges which DFO
was still experiencing. The result was a reduction in the daily limit
applicable to mobile gear fishers and the imposition of daily limits upon the entire
fixed gear fleet. Mr. Walsh identified a News Release issued by DFO on June 20,
2016, in which the Minister referred to these management measures.
[40]
Mr. Walsh then referred the Court to a document
entitled “2006 Capelin Fishery Short-Term Licensing
Measures”, reflecting recommendations made to the Regional Director
General [RDG] for the NL region on the fishery management measures reflected
therein, and the RDG’s approval of those measures. This document explains that
concerns were being raised by fixed gear capelin license holders regarding mobile
gear fishers seeking access to the 2006 fixed gear capelin fishery through the
leasing and transfer of vessels. It was therefore recommended that any inshore
vessel fishing capelin in 2006 could only be used in one fleet, mobile or fixed
gear, and that inshore vessels in the fixed gear fleet could only be used in
one capelin quota management unit for 2006.
[41]
Turning to 2007, Mr. Walsh explained that DFO
saw the trend of recent years continuing, with markets and prices strong and
participation in the capelin fishery growing. While utilization of the resource
had improved, the mobile purse seine fleet still presented challenges with
quota monitoring and concerns about capelin being used for mink food and other
uses that were economically suboptimal. So further refinements to the
management measures were adopted, with the benefit of input obtained through
industry consultations. The daily catch limit was reduced, and a seasonal limit
was imposed on the mobile fleet, i.e. a limit on the amount of capelin that
could be caught by a particular harvester throughout the season.
[42]
Mr. Walsh also testified that DFO received
expressions of concern that members of the mobile fleet would catch their
seasonal limit and then employ their vessels to fish previously inactive
capelin licenses, undermining the effect of the seasonal limit. He explained
that, if the number of active licenses increased beyond what was expected, this
would increase the quota monitoring challenge faced by DFO and would mean that
the level that had been selected for the seasonal limit imposed on each license
would turn out to be too high. The result of this concern was the adoption of
additional management measures for the 2007 season.
[43]
The measures applicable to the 2007 capelin
fishery were expressed as follows in bullet point form in documents exchanged
between DFO officials on June 20, 2007:
•
Any vessel fishing capelin in 2007 can only be
used in one fleet, mobile or fixed gear.
•
Vessels in the fixed gear fleet can only be used
in one Capelin Quota Management Unit for 2007.
•
Vessels in the mobile gear fleet can only be
used in one Management Area for 2007.
•
These provisions also apply to lease requests
from other regions.
•
A vessel may only be used once in the 2007
capelin fishery.
[44]
The last three of these five points are the
management measures that were first introduced for the 2007 season and resulted
in Mr. Gillett being prevented from using the “Midnight
Shadow” to fish his capelin licenses in the NL region after leasing that
vessel to Mr. Griffin in the Québec region. Mr. Walsh explained that the
drafting of these measures was performed by licensing officers, but that he
provided the substantive content, which he developed based on industry input
and communications with senior DFO officials. I also note that Mr. Walsh
testified, supported by notes in his diary, that he had a telephone
conversation with Mr. Gillett on June 25, 2007, in which Mr. Walsh advised Mr.
Gillett of these management measures, explaining that under DFO policy Mr.
Gillett would have to choose between leasing his vessel to fish in the Québec
region and fishing in the NL region. He could not do both.
[45]
Kevin Hurley, DFO’s Area Chief, Resource
Management, for Central Newfoundland, also testified as to the problems with
quota monitoring and glut presented by the capelin fishery, due to the limited
number of processors and the increasing number of participants. He explained
that the measures adopted to address these problems included limited license
entry and daily and seasonal catch limits. When referred to the policy
documentation prepared by DFO in 2006 and 2007, Mr. Hurley confirmed that he
was consulted on the policy measures, as were all area chiefs, and provided
input on the drafts.
[46]
It was also Mr. Hurley who provided Mr. Gillett
with written confirmation, after Mr. Gillett had leased his vessel to Mr.
Griffin, that he would not be permitted to fish his capelin license for the
2007 season and that his license would therefore be banked for the remainder of
the 2007 capelin fishery. In a letter dated July 5, 2007, Mr. Hurley quoted the
measures which applied for the 2007 capelin fishery, expressed as the five bullet
points quoted above. Mr. Hurley testified that the form of this letter was
based on another letter that had recently been sent to a harvester on the west
coast of Newfoundland in similar circumstances.
[47]
Ms. Rumbolt, the Resource Manager for licensing
services for the NL region, also testified as to her role in the development of
the 2007 policy measures. When referred to the policy documentation prepared in
2007, she explained that she was the author of the policy but that its content
came from senior managers and other resource managers based on meetings with
industry participants. Ms. Rumbolt testified that she may have drafted the five
bullet points which captured the 2007 capelin management measures, that task
having rested with her because her licensing services staff dealt directly with
harvesters, but explained that Mr. Walsh and Mr. Don Ball (described in the
documentary evidence as Area Chief, Resource Management in Corner Brook, NL) assisted
with the development of those measures.
[48]
Returning to Mr. Gillett’s allegations in
support of his claim of misfeasance in public office, he argues that the
Defendants’ witnesses did not explain how DFO’s policy objectives were advanced
through the new measures that were adopted for the capelin fishery in 2007. In
cross-examination of each of these witnesses, Mr. Gillett’s counsel put to them
the proposition that, had the “Midnight Shadow”
been permitted to fish first Mr. Griffin’s license in the Québec region and
then Mr. Gillett’s license in the NL region, this would not have contributed to
the glut problem that DFO was attempting to address. I understand his point to
be that, if a particular vessel fished first in one area and then another, the
harvesting effort and landings from these fisheries would be consecutive and
therefore would not contribute to a glut. He also points out that the capelin
fisheries in the Québec and NL regions were themselves necessarily consecutive,
not concurrent, because the stock was commercially fishable at different times
in the two regions, and that, as confirmed in Mr. Hurley’s testimony, there was
no glut problem in Québec. The problem with glut caused by fish landed in
Newfoundland was not manifested in Québec because of the limited harvesting
capacity in that region, there being very few fishing vessels with purse seine
gear operating out of that province.
[49]
In cross-examination, Mr. Walsh testified that
DFO’s concern was not about the efforts of individual harvesters but about
collective participation in the capelin fishery. Absent the policy measures
that were adopted, there would be more licenses active, because previously
inactive licenses could be fished with other license holders’ vessels, and the
catch limits afforded to individual licenses would end up being too high. Mr.
Walsh also made the point that fish caught in Québec was sometimes landed in
ports on the west coast of Newfoundland, the same ports at which fish caught in
the NL region was landed.
[50]
In response to similar questioning, Mr. Hurley
testified that the higher the level of the fishing activity, the more
likelihood there was of a glut situation developing. With more licenses being
active, the fact that each individual vessel could only harvest capelin in one
area at a time would not necessarily mean that DFO would achieve its objective
of an orderly fishery.
[51]
I acknowledge that it may have been possible for
Mr. Gillett’s vessel to fish in the Québec region, even landing its catch in
Newfoundland (as the evidence is it did), and then fish Mr. Gillett’s own
license in the subsequent fishery in the NL region, without contributing to the
glut problem. However, even if I were to accept that the application of DFO’s
policy measures in these particular circumstances was not necessary to advance
DFO’s policy objectives, this does not mean that the policy or its application
was unlawful.
[52]
As explained by the Supreme Court of Canada in
Comeau’s Sea Foods Limited v Canada (Minister of Fisheries and Oceans),
[1997] 1 S.C.R. 12, at paragraphs 36 to 37, the Minister of Fisheries and Oceans [Minister]
has a broad discretion in the use of licensing as a tool to manage, conserve
and develop the fishery on behalf of Canadians in the public interest. The
Minister is restricted by the requirements of natural justice and must base his
or her discretionary decisions on relevant considerations, avoid arbitrariness
and act in good faith. However, the evidence of the Defendants’ witnesses, and
in particular that of Mr. Walsh, establishes that the 2007 capelin management
measures were adopted based on policy considerations surrounding the objective
of achieving an orderly fishery to effectively manage and maximize utilization
of the resource. These measures took into account the recent history of that
fishery and the input of interested stakeholders. I find no basis to conclude
that these measures or their application to Mr. Gillett were arbitrary or based
on irrelevant considerations or bad faith.
[53]
Mr. Gillett also impugned the 2007 policy
measures on the basis that they represented DFO in the NL region improperly implementing
licensing policy which adversely affected another region, by discouraging NL
license holders from leasing their vessel to Québec license holders. I see no
merit to this argument, given that DFO is a federal regulator. Mr. Walsh explained
that the NL region was the lead region for the capelin fishery, taking the
broader capelin fishery into account in the establishment of policy.
[54]
Moreover, even if Mr. Gillett had succeeded in
establishing that the application of the 2007 capelin management measures to
his circumstances was unlawful, this in itself would not support a conclusion
that the Defendants committed the tort of misfeasance in public office. As
explained in the analysis of the elements of this tort earlier in these
Reasons, this is an intentional tort requiring the establishment of deliberate
unlawful conduct. Mr. Gillett’s position is that the Defendants committed a
Category A tort, in which the relevant public official acted with the express
purpose of harming him.
[55]
The testimony of Ms. Rumbolt, on which Mr.
Gillett relies as evidence that the Defendants’ conduct was intended to injure
him, was that she understood that the intent of the 2007 management measures
was to allow each vessel to be used in only one fleet for each season, so as
not to afford an advantage to earn more money. However, Ms. Rumbolt also stated
that she was not an expert on this and that an explanation of the rationale for
the management measures should come from someone who managed capelin in 2007. I
do not interpret Ms. Rumbolt’s evidence to be that the prohibition against
using a vessel in more than one area was directed at Mr. Gillett. She was
speaking generically, in terms of an intention not to concentrate the economic
advantage represented by the resource, which I would not find to constitute an
irrelevant policy consideration. Moreover, Ms. Rumbolt specifically qualified
her evidence by stating that an explanation of the policy rationale should come
from someone with expertise in capelin management.
[56]
Mr. Walsh was the witness best fitting this
description, and he testified that the new measures introduced in 2007 were a
response to expressions of concern that members of the mobile fleet would catch
their seasonal cap and then employ their vessels to fish previously inactive
capelin licenses, undermining the effect of the seasonal limit. Mr. Walsh
expressly stated that he did not know which vessels would be affected by these
new measures, just that a general concern was being expressed that fishers were
thinking about employing their vessels in this manner. He testified that these
concerns were expressed in calls from individual harvesters, processors, and
the FFAW and that the new 2007 measures were developed based on stakeholder
input.
[57]
I find no basis to conclude from the evidence at
trial that the 2007 capelin measures were adopted with an intent to
economically injure Mr. Gillett or persons in circumstances similar to his. I
should also note that neither Mr. Gillett’s evidence nor that of the Defendants’
witnesses suggested any ill will between any of those witnesses and Mr. Gillett
which might have represented a motive for adoption or application of policy
measures with an intent to harm him. Mr. Hurley testified that he always had a
cordial relationship with Mr. Gillett and that they treated each other with
mutual respect. Ms. Rumbolt explained that there was a time when she worked in
the Grand Falls – Windsor area office of DFO, which managed the part of the
province from which Mr. Gillett fished, that she spoke with Mr. Gillett many
times, and that she never had any difficulties with him. Mr. Walsh does not
appear to have had the same amount of contact with Mr. Gillett as the other DFO
witnesses. However, he testified that he did not recall his telephone
conversation with Mr. Gillett on June 25, 2007 being at all contentious or ever
having any difficult conversations with him.
[58]
I also consider the suggestion that the
Defendants were motivated to harm Mr. Gillett economically to be undermined by
evidence that on two occasions DFO approved exceptions to its licensing policy
to permit Mr. Gillett’s vessel to be leased to other fishers in the NL region.
In 2007, approximately 11 days after the “Midnight
Shadow” had finished fishing Mr. Griffin’s capelin license in Québec,
DFO approved a lease of the vessel to Mr. Dyson Sacrey to fish Mr. Sacrey’s
license in the NL region. Mr. Hurley explained that Mr. Sacrey’s own vessel had
been damaged and that the only vessel available in the region was the “Midnight Shadow”. Mr. Hurley therefore recommended,
and ultimately received approval from DFO regional headquarters, that Mr.
Sacrey be permitted to lease Mr. Gillett’s vessel, so that Mr. Sacrey did not
miss the opportunity to participate in that year’s capelin fishery. Mr. Hurley
explained that this represented a decision to depart from DFO policy because of
the exigent circumstances faced by Mr. Sacrey.
[59]
The documentary evidence before the Court
indicated that the “Midnight Shadow” then fished
for three days in July 2007 under Mr. Sacrey’s license, landing 719,033 pounds
of capelin. The documentary evidence also indicates that the average price for
a pound of capelin in 2007 was 12.2 cents. Mr. Gillett testified that, under
the agreement between him and Mr. Sacrey for the use of the “Midnight Shadow”, he received a 50% share. Although
the evidence did not clarify whether or not Mr. Gillett’s share was calculated
after deduction of expenses, it appears he would have received some tens of
thousands of dollars as a result of the decision by DFO to permit his vessel to
be used by Mr. Sacrey.
[60]
The evidence at trial also identified another
circumstance in 2009 when DFO approved a departure from its policy to permit lease
of the “Midnight Shadow” to the son of a license
holder who had died, to permit the family’s participation in the capelin
fishery in circumstances where that would not otherwise have been possible.
While Mr. Hurley’s evidence was that that DFO’s decisions to depart from its
policy were intended to address the extenuating circumstances faced by the
lessees in these two cases, Mr. Gillett benefited from these decisions, which
is inconsistent with the suggestion that DFO was in some way motivated to cause
Mr. Gillett economic harm.
[61]
I have also considered Mr. Gillett’s argument,
based on the content of the ministerial News Release and the timing at which
the new policy measures appear in the documentary record in 2007, that the
management measures were created “on the fly” by
DFO officials as a cover or excuse intended to prevent him from fishing. In
relation to the News Release, I find no merit to this argument. The News Release
is dated June 20, 2006, a full year before the development of the particular
measures that are at issue in this action. I also accept the explanation given
by Mr. Walsh in cross-examination that a news release is not intended to
represent a list of all applicable management measures. The fact that that this
document does not capture the provisions related to leasing of vessels,
particularly those that were not developed until the following year, does not
support a conclusion that those measures were subsequently adopted for improper
purposes.
[62]
Mr. Gillett’s argument based on the timing of
the 2007 documentation relates to the fact that the three bullet points which
subsequently impacted him were inserted in the relevant policy document on June
20, 2007, approximately six hours after an earlier draft of that document was
circulated without those points. On June 20, 2007 at 9:02 AM, Ms. Rumbolt sent
an email to a list of people including Mr. Hurley and Mr. Walsh, attaching a
document entitled “2007 Temporary Policy Measures for
the 35-64’11’’ Fleet – Draft”. This document contains only the first two
of the five bullet points which were ultimately adopted as the capelin
management measures for 2007. Ms. Rumbolt’s covering email indicates that a
previous version of this document had been circulated by email on May 9, 2007
but was being recirculated because the previous version contained a
typographical error in referring to 2006 rather than 2007.
[63]
At 10:10 AM on June 20, 2007, Ms. Rumbolt sent
an email to Mr. Walsh and Mr. Ball, setting out the expanded list of measures
to apply to the 2007 capelin fishery (i.e. all five bullet points) and asking
for any changes. At 10:24 AM, Mr. Ball responded that he had no problem with
this. At 3:15 PM on June 20, 2007, Ms. Rumbolt sent another email to the same
recipients who received her email of 9:02 AM, attaching another version of the
document entitled “2007 Temporary Policy Measures for
the 35-64’11’’ Fleet – Draft”. The covering email states that this
version is updated to amend temporary measures for the 2007 capelin fishery,
and the document itself contains the full list of five bullet points that had
been set out in the email of 10:10 AM.
[64]
I do not find this sequence of communications to
suggest any undue haste or improper purpose on the part of those involved. Ms.
Rumbolt testified that she may have drafted the five bullet points contained in
the 10:10 AM email, with the assistance of Mr. Walsh and Mr. Ball. When
confronted with the timing of these documents in cross-examination, Mr. Walsh
testified that he assumed that, after receiving the previous version of the
policy document early on June 20, 2007, he explained to Ms. Rumbolt the
additional measures which were being added in 2007 and that she therefore
updated the document. Consistent with his evidence in direct examination, Mr.
Walsh also explained that there had been discussions leading up to this. I do
not interpret these documents as demonstrating a last-minute change developed
on an arbitrary or improperly intentioned basis on June 20, 2007. Rather, the
evidence indicates that the change was the product of prior industry
consultations, intended to address concerns about the potential for vessels
being moved among licenses and thereby circumventing other management measures,
and that the communications on June 20 simply represent this content being
added to DFO’s draft policy document.
[65]
Finally, I note the technical arguments raised
by the Defendants in response to Mr. Gillett’s claims that the tort of
misfeasance in public office has been committed not only by Mr. Hurley but
also by Her Majesty the Queen as represented by the Minister of Fisheries and
Oceans. The Defendants argue that Mr. Hurley is the only public official
against whom misfeasance was alleged in Mr. Gillett’s Statement of Claim and
that Mr. Gillett is not entitled to broaden this allegation to include DFO as a
whole. They also argue that, as a matter of law, the claim based on allegations
against Her Majesty as represented by the Minister of Fisheries and Oceans
cannot succeed, as misfeasance is a tort available against a public official,
not a public authority.
[66]
I agree with both these defence positions. The
Statement of Claim alleges misfeasance committed by Mr. Hurley, not by any
other representative of DFO. No motion has been made to amend the Statement of
Claim. The claim based on allegations against the Crown itself must fail for
this reason and also as a matter of law as the Defendants submit. In St.
John’s Port Authority v Adventure Tours Inc., 2011 FCA 198, the Federal
Court of Appeal addressed this issue and concluded that this tort requires a
claimant to establish that a particular public officer has engaged in the
impugned conduct.
[67]
However, little actually turns on either of
these defence positions. Mr. Gillett has not established that Mr. Hurley
engaged in conduct intended to cause him harm. While Mr. Hurley issued the July
5, 2007 letter communicating that Mr. Gillett would not be permitted to fish
his capelin license in the 2007 season, this letter was issued in reliance on
DFO policy following consultation with DFO’s regional office in St. John’s. The
tort of misfeasance in public office as alleged in the Statement of Claim is
not made out because, as canvassed in detail above, there is no evidentiary
support for a conclusion that Mr. Hurley acted with the purpose of causing
economic harm to Mr. Gillett. However, neither does the evidence support a
conclusion that any other representative of DFO or the Crown itself has done
so. Therefore, even if the law permitted a less specific allegation as to the individual
who engaged in the impugned conduct, and if the Statement of Claim contained such
an allegation, I would still have found no facts which would warrant a finding
of liability based on this tort in the present action.
[68]
In conclusion on this issue, the Plaintiff has
not established the elements of the tort of misfeasance in public office.
C.
Whether the Plaintiff has established a breach
of contract
[69]
Mr. Gillett argues that the Defendants are
liable to him for breach of contract. He submits that his completion of the
documentation seeking renewal of his license represented an offer, that the
subsequent issuance of the License Document represented acceptance of this
offer, and that his payment of the $30 fee was sufficient consideration. He
relies on this Court’s decision in 100193 P.E.I. Inc. - FC (varied on
appeal in 100193 P.E.I. - FCA but not on this point), in which
Justice Boswell addressed a summary judgment motion which included
consideration of a claim that certain representations made by the Minister and
other DFO officials formed a contract with participants in the snow crab
fishery.
[70]
I do not find this authority to support
Mr. Gillett’s claim. At paragraphs 46 to 47 of his decision, Justice Boswell
canvasses the elements necessary to establish the formation of a contract,
including the requirement that the acceptance of an offer be unequivocal.
Following consideration of the evidence before the Court in that case, Justice
Boswell found the evidence established neither an offer capable of acceptance,
nor acceptance of such an offer, ultimately concluding that the plaintiffs’ contractual
cause of action was so doubtful that it did not deserve a trial.
[71]
In the case at hand, the evidence is not
supportive of a conclusion that the parties’ communications with each other
were conducted with contractual intent. Even if Mr. Gillett’s submission of the
license renewal documentation could be characterized as an offer for purposes
of a contractual analysis, I do not see how DFO’s subsequent issuance of the
License Document can be characterized as an unequivocal acceptance of this
offer. For Mr. Gillett’s contractual cause of action to be of any benefit to
him, he must be asserting that his offer was to pay the applicable $30 fee and
seek issuance of a license which entitled him to harvest capelin in the 2007
season. The evidence of the Defendants’ witnesses canvassed in detail above
demonstrates that the issuance of the License Document, absent attached
conditions, was not intended to permit Mr. Gillett to harvest capelin. DFO
deliberately did not issue the license conditions to him until after the 2007 capelin
season had closed. Therefore, there was no act by DFO constituting acceptance
of what Mr. Gillett characterizes as his offer.
[72]
Mr. Gillett has not established a contractual
relationship with either of the Defendants and therefore cannot succeed in his
cause of action for breach of contract.
D.
Whether the Plaintiff has established
interference with economic relations
[73]
Mr. Gillett’s Statement of Claim asserts a claim
based on the tort of interference with economic relations. In his submissions
at trial, he argued as an alternative to the cause of action based on
misfeasance in public office that, if the individual Defendant, Mr. Hurley,
acted outside the scope of the authority permitted by his position, then he
tortiously interfered with Mr. Gillett’s economic relationship with the other
Defendant, Her Majesty in Right of Canada, and is personally liable for any
damages sustained as a result of this tort.
[74]
The Defendants rely on the decision of the
Supreme Court of Canada in Pro-Sys Consultants Ltd. v Microsoft Corporation,
2013 SCC 57, at paragraph 81, which describes the tort of intentional
interference with economic interests as aiming to provide a remedy to victims
of intentional commercial wrongdoing. The three elements of this tort are: (1)
the defendant intended to injure the plaintiff’s economic interests; (2) the
interference was by illegal or unlawful means; and (3) the plaintiff suffered
economic loss or harm as a result.
[75]
The Defendants also note the Supreme Court’s
subsequent decision in A.I. Enterprises Ltd. v Bram Enterprises Ltd.,
2014 SCC 12, in which the Court emphasized, at paragraph 96, that a requirement
to establish this tort is that the defendant intended to cause loss to the
plaintiff, not merely that a loss suffered by the plaintiff is a foreseeable
consequence of the defendant’s action.
[76]
This tort has no application to the
circumstances of this case. I have found no illegal or unlawful act by Mr.
Hurley and find no basis to conclude that he acted outside the scope of his
authority. Nor is there evidentiary support for a conclusion that Mr. Hurley
acted with the intent to cause loss to Mr. Gillett. This cause of action must
therefore fail.
E.
In the event that any liability is found on the
part of the Defendants, what is the appropriate measure of damages?
[77]
The result of my findings is that the
Plaintiff’s action must be dismissed. Having found no liability on the part of
the Defendants, it is not necessary to quantify damages. However, in the event
liability had been established, I would have had considerable difficulty
conducting such quantification because of shortcomings in the evidence.
[78]
There are components of the damages claimed by
Mr. Gillett on which no evidence or argument has been adduced. In addition to
the lost income that Mr. Gillett says he would have earned had he been
permitted to fish capelin allocated to his license in 2007 and 2008, he has
claimed lost employment insurance and Canada Pension Plan benefits, as well as
exemplary, aggravated and punitive damages. I have been presented with no
evidence or argument on any of these categories of damages other than the lost
income claim. Therefore, even if liability had been established, I would not have
awarded damages for any of the claimed categories other than lost income.
[79]
In support of the lost income claim, Mr. Gillett
has adduced evidence of the seasonal catch limit applicable to his capelin
license for each of 2007 and 2008, being respectively 180,000 pounds and
200,000 pounds. While there is no guarantee that he would have caught these
amounts had he been to permitted to fish his license in each of those seasons,
the evidence of the Defendants’ witnesses was that the applicable TAC was
caught in each of 2007 and 2008, and there is no particular reason to think
that Mr. Gillett would not have achieve the maximum catch available to him.
[80]
Mr. Gillett also adduced evidence of the average
price paid for capelin in each of the 2007 and 2008 seasons, being respectively
12.2 cents and 11.6 cents per pound. While he initially asserted his claim
based on higher prices (18 cents and 25 cents respectively), which he said he
could achieve for superior quality catch, his counsel advised at the trial
that, in the absence of evidence to support these figures, he would rely on the
average prices.
[81]
These figures support a calculation of lost
revenue of $21,960 for 2007 and $23,200 for 2008, for a total of $45,160.
However, these would be gross revenue figures and, as the Defendants point out,
an award of damages for these losses should be reduced by expenses that would
have been incurred in the fishing effort, such as fuel, provisions, and crew
share. Unfortunately, neither of the parties adduced any evidence permitting
the Court to quantify these expenses. Each party argued that the other had the burden
to adduce this evidence. Mr. Gillett therefore submitted that his damages
should be quantified without any deduction to take such expenses into account,
while the Defendants argued that a deduction must still be applied without
particularly explaining how the Court should do so without any evidence.
[82]
My conclusion is that, while the Defendants could
have sought discovery of evidence of the expenses to be deducted in the damages
calculation, the Plaintiff nevertheless bears the burden of proving his damages.
As such, had I found liability on the part of the Defendants and been required
to quantify Mr. Gillett’s lost income, I would have reduced the $45,160 gross
revenue figure to take into account saved expenses. I would have been required
to select the amount of such reduction without the benefit of either evidence
or submissions from the parties and, admittedly arbitrarily, would have reduced
the gross revenue figure by one-third to produce a damages quantification of
$30,107. While this exercise might have represented some degree of either
under-compensation or over-compensation for the Plaintiff, this is a risk borne
by both parties in failing to provide evidence of the applicable expenses.
VI.
Costs
[83]
Each of the parties has claimed costs in the
event of success in this matter. However, the parties advised at the trial that
they would prefer to provide submissions on costs to the Court following
receipt of this decision. My Judgment will so reflect.
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