Docket: T-252-24
Citation: 2025 FC 322
Ottawa, Ontario, February 19, 2025
PRESENT: The Honourable Mr. Justice Southcott
BETWEEN: |
SOUTH SHORE TRADING CO. LTD. |
Applicant |
and |
THE MINISTER OF FISHERIES, OCEANS AND THE CANADIAN COAST GUARD, and THE ATTORNEY GENERAL OF CANADA |
Respondents |
JUDGMENT AND REASONS
I. Nature of the Matter
[1] This is an application for judicial review of a decision by the Regional Director General, Maritimes Region [RDG], on behalf of the Minister of Fisheries, Oceans and the Canadian Coast Guard [the Minister], maintaining the Total Allowable Catch [TAC] in the elver (or glass eel) fishery for the 2024 season at 9,960 kg, wet weight [the Decision].
[2] As explained in further detail below, this application is dismissed, because the Court has not identified any reviewable error in the Decision.
II. Background
[3] In the course of case managing this matter, Justice Peter Pamel (then of the Federal Court) issued an interlocutory decision dated May 3, 2024, addressing motions by both parties (Canadian Committee for a Sustainable Eel Fishery Inc v Canada (Fisheries, Oceans and Coast Guard), 2024 FC 683 [CCSEF May 2024]), and captured as follows the background to the application now before the Court (at paragraphs 6 to 11):
6. The American eel is found in the waters off the eastern coast of North America, stretching from Labrador to the Caribbean. Elvers are defined by section 35 of the Maritime Provinces Fishery Regulations, SOR/93-55, as eels less than 10 cm in length. Despite their presence offshore, elvers are harvested in rivers. The elver market is profitable and has grown considerably in recent years because of increasing demand for eels in Asia. Elvers are harvested here but sold to Asian markets, where they are allowed to mature in farms until they are ready for human consumption. The value of the elver fishery in Atlantic Canada increased from $19 million in 2017 to $45 million in 2022. In 2022 and 2023, the price for elvers was, respectively, $5,000 and $4,415 per kilogram.
7. At the same time as demand for elvers has increased, there has been growing concern for the species’ conservation. The American eel has been designated a threatened species by the Committee on the Status of Endangered Wildlife in Canada, and the Government of Canada is considering listing it in the Species at Risk Act, SC 2002, c 29. But that is not the only problem. Unauthorized harvesting has plagued the fishery for several years now. In April 2020, concerns over conservation and proper management of the fishery led to its closure by the Minister. The fishery was not closed in 2021 or 2022, but unauthorized fishing and violence were observed realities. In 2023, the Minister temporarily closed the fishery in April and renewed the closure in May, in both cases citing conservation and unauthorized harvesting. Some fishery stakeholders have sought judicial review before this Court of the April 2023 fishery closure; that matter is ongoing and is awaiting a hearing.
8. In 2023, the TAC was 9,960 kilograms, wet weight. That amount has not changed since 2005, though the 2005 TAC represented a 10% reduction from prior levels and was motivated by conservation. In 2022 and 2023, the Minister set aside 13.7% of the TAC for licenses allocated to Indigenous communities in the Maritimes. This was done by reducing the individual quotas of existing licensees. Various fishery stakeholders sought judicial review of these quota reductions before this Court. The challenges to the 2022 individual quota reductions were dismissed by Justice Walker, then of this Court, in Shelburne Elver Limited v Canada (Fisheries, Oceans and Coast Guard), 2023 FC 1166 [Shelburne Elver]; the appeal of that decision (A-253-23) has not yet been heard by the Federal Court of Appeal. The applications for judicial review of the 2023 individual quota reductions are still live before this Court—they too have not yet been heard.
9. The TAC has for many years been the product of negotiating different priorities. Most relevant here, and in no particular order, are the profitability of the industry generally; Indigenous reconciliation and the availability and profitability of elver stocks for Indigenous harvesters; conservation of the American eel species; and preservation of the integrity and efficacy of fishery regulations. On January 10, 2024, the Regional Director, Fisheries Management for the Department of Fisheries and Oceans [DFO] recommended to the Minister that for the upcoming 2024 season, the TAC for elver remain at 9,960 kilograms, wet weight. The Regional Director General Maritime Region, the Minister’s representative, accepted and adopted that recommendation the very same day; the 2024 TAC Decision was made.
10. On February 9, 2024, the applicants sought judicial review of that decision. In the underlying application they seek the following:
1. That this Application be expedited and specially managed;
2. an Order quashing the Decision as unreasonable, incorrect, and/or procedurally unfair;
3. an Order referring the matter back to the DFO Minister for reconsideration and/or to take further steps to avoid a repeat in future years;
4. an Order requiring the Department and Minister, in the management of the elver fishery, to act in accordance with their duties of procedural fairness, specifically in a manner that is open minded and gives appropriate consideration to the points raised by Applicants and related stakeholders;
5. an Order requiring the DFO Minister to continue consultation and negotiations with respect to the 2024 glass eel fishery in accordance with directions provided by this Court;
6. Retaining the Court’s jurisdiction and supervising the Respondent DFO to ensure its fulfilment of its responsibilities in a manner that is fair, reasonable and correct, and as dictated by the requested Order;
7. in the alternative to the above Order, a Declaration that the Decision was unreasonable and/or incorrect;
8. costs of this Application; and
9. such further and other relief as this Honourable Court deems to be just and appropriate.
11. On March 11, 2024, the Minister decided not to issue any elver fishing licenses for 2024, and proceeded to close the fishery for the upcoming season. She communicated this decision through a statement posted to the DFO website. DFO also sent letters to licence holders, which explained the decision in more detail.
[4] CCSEF May 2024 struck relief measures 4, 5, and 6 of this application for judicial review, such that the relief now being sought includes quashing the Decision, referring the matter back to the decision-maker for redetermination, in the alternative a declaration that the Decision was unreasonable and/or incorrect (depending on the applicable standard of review), and costs.
[5] I also note that CCSEF May 2024 considered whether this application for judicial review is moot because, after making the Decision on the 2024 TAC, the Minister made the subsequent decision to close the elver fishery. Justice Pamel concluded (at paras 17–36) that this matter was indeed moot but, under the second stage of the test prescribed by Borowski v Canada (Attorney General), 1989 CanLII 123, [1989] 1 S.C.R. 342 (SCC), that the relevant factors favoured the Court exercising its discretion to hear the application on its merits.
[6] In a subsequent interlocutory decision dated December 3, 2024 (Canadian Committee For a Sustainable Eel Fishery Inc v Canada (Fisheries, Oceans and Coast Guard), 2024 FC 1951 [CCSEF Dec 2024]), Justice Pamel addressed further motions from both parties, which resulted in one of the originally named Applicants, Mr. Mitchell Feigenbaum, being removed as an Applicant for lack of standing to challenge the Decision. The remaining Applicants at the time of the hearing of this application for judicial review were the Canadian Committee for a Sustainable Eel Fishery, Inc. [CCSEF], NovaEel Inc. [NovaEel], and South Shore Trading Co. Ltd. [South Shore].
[7] CCSEF, a non-profit corporation located in Nova Scotia, is described as an organization that advocates for the conservation of American eel stocks through sustainable fishing practices and scientific monitoring. CCSEF is presently comprised of five members, each of which holds an elver fishing licence.
[8] NovaEel is a Nova Scotia company involved in the research, development, and promotion of global-scale eel aquaculture in Canada. Its shareholders include five Canadian elver quota-holders and individuals who are members of a quota-holder.
[9] South Shore is a Nova Scotia company located in New Brunswick and has held a commercial elver licence since the mid 1990s, entitling it to participate in the commercial elver fishery in the Maritimes Region, which is the only Fisheries and Oceans Canada [DFO] region with a commercial elver fishery [the Fishery]. The Fishery consists of a number of commercial licences, including communal commercial licences (two of which are interim communal commercial licences introduced to support increased Indigenous participation in the Fishery).
[10] The Applicants’ Amended Amended Notice of Application dated August 21, 2024, names the Minister of Fisheries, Oceans and the Canadian Coast Guard and the Attorney General of Canada as the Respondents.
III. Decision under Review
[11] On January 10, 2024, the Regional Director, Fisheries Management issued a document entitled “Memorandum for the Regional Director General”
[the Memorandum] requesting that the RDG set the 2024 season TAC for the Fishery and recommending that it be set at 9,960 kg. On January 10, 2024, in the Decision that is the subject of this application for judicial review, the RDG concurred with the recommendations in the Memorandum, resulting in a TAC of 9,960 kg, wet weight in the Fishery for the 2024 season.
[12] In the Memorandum, DFO canvassed the recent background of the Fishery, including the value of elver, concern regarding the American eel population, and closures of the Fishery in the 2020 and 2023 seasons due to threats to conservation and the proper management of the Fishery. DFO highlighted the widespread unauthorized removal of elver that occurred in the 2023 season, which resulted in the Minister closing the Fishery via successive Fisheries Management Orders [FMO]. DFO estimated that in 2023, accounting for both licensed and unauthorized removals, over half of the 9,960 kg TAC for that season had already been landed early in the fishing season, before the number of harvesters and catch per unit effort of all harvesters were expected to increase at the peak of the season.
[13] The Memorandum further explained that, to address the circumstances observed in the Fishery, DFO undertook in 2023 to review the management of the Fishery, including access and allocation to support increased Indigenous participation and further distribute the Fishery’s economic benefits; regulation development to support reporting and traceability systems to more readily identify legally and illegally harvested elver throughout the supply chain; and a review of the design of the Fishery to support orderly fisheries management.
[14] Under the heading “Science Advice”
, the Memorandum summarized research underlying DFO’s recommendation, including a 2013 Recovery Potential Assessment of American Eel [RPA] and assessments updated between 2018 and 2023 regarding removals of elver by fishing and the overall elver population and productive capacity. DFO also identified sources of uncertainty for its assessments. A briefing summary and draft Science Advisory Report, entitled “Update on the Status of American Eel and Elver Fisheries in Maritimes Region and Science Advice on Available Regional Indices”
and appearing to have been prepared in 2023, were attached to the Memorandum.
[15] In the Memorandum, DFO explained that, due to uncertainties with the overall health of the American eel population, it has managed the Fishery using a “precautionary approach”
to keep the overall fishing mortality of American eel moderate. Relying on the science advice referenced above, DFO noted that the number of elvers returning to the single index river has remained above the long-term median value. While acknowledging that ordinarily this trend would be encouraging and could support increasing the TAC, DFO also noted that the increase in recruitment observed in the Maritimes Region had not been observed elsewhere in Canada where American eel are present. Further, due to increasing instances of unauthorized fishing, the actual level of elver removals from the Fishery was uncertain.
[16] The Memorandum then referred to ongoing efforts to address the circumstances facing the Fishery, which could result in a dramatic change in the number of participants authorized to fish, changes to fishing methods and areas, and new regulations to support traceability. However, DFO noted that these initiatives may not be in place before the traditional start time for the Fishery and that consultation and engagement about these initiatives would require sufficient time to allow meaningful feedback and analysis to support DFO’s decisions.
[17] DFO also observed that no specific consultations regarding the TAC for the 2024 season occurred with stakeholders such as Indigenous communities and the commercial industry. However, DFO noted consistent messaging from commercial licence-holders that there was room for new access in the Fishery by expanding the TAC and that the Fishery could be expanded without impacting the overall health of the American eel population. DFO also noted that some Indigenous communities may see the maintenance of the TAC level as a barrier to increasing access.
[18] Ultimately, DFO recommended continuing the precautionary approach and maintaining the TAC at 9,960 kg, wet weight for the 2024 season. The RDG concurred with this recommendation, and that result was subsequently communicated by DFO.
IV. Issues and Standard of Review
[19] In this application, the parties’ arguments together raise the following issues for the Court’s determination:
[20] The parties largely agree on the applicable standard of review although, as I will explain later in these Reasons, they do have some disagreement that the Court must address. I will therefore focus further upon the standard of review when canvassing the parties’ arguments below.
V. Analysis
A. Do NovaEel and CCSEF lack standing to bring this application for judicial review?
[21] As a preliminary issue in this matter, the Respondents submit that two of the remaining Applicants, NovaEel and CCSEF, lack standing to bring this application for judicial review, because the Decision under review does not directly affect either of them within the meaning of subsection 18.1(1) of the Federal Courts Act, RSC 1985, c F-7 [Federal Courts Act], which provides as follows:
Application for judicial review
18.1 (1) An application for judicial review may be made by the Attorney General of Canada or by anyone directly affected by the matter in respect of which relief is sought.
|
Demande de contrôle judiciaire
18.1 (1) Une demande de contrôle judiciaire peut être présentée par le procureur général du Canada ou par quiconque est directement touché par l’objet de la demande.
|
[22] As previously noted, CCSEF is a non-profit corporation that advocates for the conservation of American eel stocks through sustainable fishing practices and scientific monitoring. It is presently comprised of five members, each of which holds an elver fishing licence. The evidentiary record before the Court in this application includes an affidavit sworn by CCSEF’s president, Ms. Genna Carey, as to her belief that the Decision has a compelling impact on CCSEF’s members.
[23] NovaEel is a company involved in the research, development, and promotion of eel aquaculture in Canada. Its shareholders include five Canadian elver quota-holders and individuals who are members of a quota-holder. The record before the Court includes an affidavit sworn by Mr. Paul Smith, who describes NovaEel’s shareholders as leaders from the glass eel fishery and glass eel exporting industries in Canada and the US, commercial fisheries management and advocacy experts, experts in developing aquaculture technology, and regulatory experts. The Applicants’ counsel emphasizes that the Decision affects NovaEel because it affects the availability of glass eels to be harvested by its members, and it is its members who supply glass eels to NovaEel to pursue its mandate.
[24] Against this backdrop, the Respondents emphasize that, in order for an applicant to be “directly affected”
by a decision within the meaning of subsection 18.1(1) of the Federal Courts Act, the decision must have affected the applicant’s legal rights, imposed legal obligations upon it, or prejudicially affected it in some way (League for Human Rights of B’Nai Brith Canada v Odynsky, 2010 FCA 307 at para 58). However, a commercial interest in the issues in a judicial review application is not a sufficient basis for standing (Oceanex Inc v Canada (Transport), 2018 FC 250 at paras 259–66, aff’d on other grounds 2019 FCA 250, leave to appeal to SCC refused, 38942 (26 March 2020)). An applicant’s interest in a decision under review cannot be an indirect or consequential interest (Forest Ethics Advocacy Association v Canada (National Energy Board), 2013 FCA 236 at paras 26–27).
[25] As previously noted, in CCSEF Dec 2024, Justice Pamel granted the Respondents’ motion to remove another of the originally named Applicants, Mr. Mitchell Feigenbaum, for lack of standing to challenge the Decision. Mr. Feigenbaum argued that he was affected by the Decision, not only financially but also personally, including as the controlling shareholder of South Shore and through his active participation in NovaEel. Although recognizing Mr. Feigenbaum’s significant involvement in, devotion to, and knowledge of the Fishery, as well as the impact of the Decision upon his personal life and interests, Justice Pamel found that those impacts were indirect and did not support a finding that Mr. Feigenbaum had standing to challenge the Decision (at paras 12–13).
[26] Justice Pamel also considered whether Mr. Feigenbaum met the test for public interest standing, which requires demonstration that: (a) a serious justiciable issue has been raised; (b) the party seeking public interest standing has a genuine or direct interest in the outcome of the litigation; and (c) there is no other reasonable and effective way to bring the issue before the Court (Canadian Council of Churches v Canada (Minister of Employment and Immigration), 1992 CanLII 116, [1992] 1 S.C.R. 236 (SCC)).
[27] The Court accepted that this application raises a serious issue and that Mr. Feigenbaum’s interest may be genuine. However, there was no distinction between the arguments he would make and those raised by the other Applicants. Therefore, there existed another reasonable and effective way for the issues raised by the application to be determined by the Court. Justice Pamel therefore declined to grant Mr. Feigenbaum public interest standing (at paras 15–17).
[28] I find Justice Pamel’s analysis to apply to the question of the standing of NovaEel and CCSEF. Each of these Applicants has an interest in the Decision but, like that of Mr. Feigenbaum, it is an indirect or consequential interest that is not sufficient for purposes of subsection 18.1(1) of the Federal Courts Act. The Court accepts that both NovaEel and CCSEF have knowledge of the Fishery and involvement in the larger industry of which the Fishery is a part. Indeed, in other circumstances, in the absence of an applicant with a direct interest in the Decision, NovaEel and/or CCSEF might satisfy the test for public interest standing. However, just as Justice Pamel was not satisfied that Mr. Feigenbaum met that test because of the involvement of the other Applicants in this application, I find that NovaEel and CCSEF do not meet the test in the case at hand, because of the involvement of South Shore.
[29] South Shore holds a licence to harvest elver in the Fishery. It therefore has a direct interest in the Decision and is entitled to standing to bring this application for judicial review. As found in CCSEF Dec 2024 at paragraphs 15 to 17, there is no distinction among the arguments being advanced by the various Applicants. All Applicants are represented by the same counsel, who is capable of handling the task of advancing the submissions challenging the Decision (and did so ably at the hearing of this application).
[30] I have considered the Applicants’ argument at the hearing that the Respondents have raised the standing issue in relation to NovaEel and CCSEF very late in the day. Notwithstanding that the Respondents previously challenged the standing of Mr. Feigenbaum in the motion adjudicated in CCSEF Dec 2024, they first raised the issue of the standing of NovaEel and CCSEF in their Memorandum of Fact and Law dated December 20, 2024, in anticipation of the hearing of this application for judicial review.
[31] However, the Applicants have not identified any support for a position that the hearing of an application itself is too late for a respondent to raise a standing issue. Moreover, no prejudice results from this timing, as the Applicants’ counsel advanced the Applicants’ intended submissions, based on the affidavit evidence of Mr. Feigenbaum, Ms. Carey, and Mr. Smith, all of which remains part of the record before the Court to be considered in deciding this application, regardless of the removal of NovaEel and CCSEF as Applicants. Indeed, the Respondents explained at the hearing that they raise the standing issue solely as a matter of principle (and with a view to possible future litigation) and that the request for removal of NovaEel and CCSEF as parties is not intended to have any effect on the adjudication of the merits of this application.
[32] To avoid inconsistencies in the expression of these Reasons, which reflect arguments that as of the time of the hearing were being advanced on behalf of the three remaining Applicants, I will continue to refer to the Applicants in plural. However, as I agree that NovaEel and CCSEF lack standing, my Judgment will amend the style of cause in this matter to remove them.
B. Were the Applicants afforded requisite procedural fairness or natural justice?
[33] The Applicants’ Memorandum of Fact and Law does not formally include an alleged breach of procedural fairness or natural justice among its list of issues to be adjudicated by the Court. However, the Applicants’ Memorandum of Fact and Law does elsewhere assert that the decision-maker’s choice of procedure was unfair and that a breach of the Applicants’ legitimate expectations constituted a denial of procedural fairness. As such, for the sake of good order, I will briefly address those assertions.
[34] To do so, I must turn to the selection of the standard of review. Issues relating to procedural fairness or natural justice are subject to the standard of correctness, or an approach akin to correctness. Put otherwise, the Court’s role is to assess whether the process followed was fair, considering all applicable circumstances (Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at para 54).
[35] However, the Respondents assert that, given the nature of the Decision that is under review in the case at hand, no duty of procedural fairness was owed to the Applicants. The Respondents submit that the setting of the TAC was a discretionary policy decision, to which common law principles of procedural fairness do not apply. Among other authorities, the Respondents rely on this Court’s decision in Barry Seafoods NB Inc v Canada (Fisheries, Oceans and Coast Guard), 2021 FC 725 [Barry Seafoods], which held that the TAC and quota decision under review in that matter (at para 1) was a decision of the nature of policy or legislative action, not an administrative decision (at para 33), which affected principles governing the application of the relevant standard of review (at para 34).
[36] The Respondents argue that the Decision under review in the matter at hand, involving setting the TAC for the entire Fishery, is similarly a discretionary policy decision. The Applicants have not advanced arguments to the contrary and, employing the principles canvassed in Barry Seafoods at paragraphs 23 to 33, I agree with the Respondents’ position.
[37] Barry Seafoods, at paragraphs 34 to 36, relied on the explanation in Maple Lodge Farms v Government of Canada, [1982] 2 S.C.R. 2, 1982 CanLII 24 (SCC) [Maple Lodge Farms] at pages 7 to 8, of principles governing judicial review of discretionary policy decisions. In relation to procedural issues, Maple Lodge Farms identified the scope for judicial review to be limited to nonadherence to statutorily mandated natural justice.
[38] I also note the recent decision in South Shore Trading Co Ltd v Canada (Fisheries and Oceans), 2025 FC 174, which addressed an application by South Shore and Mr. Feigenbaum challenging the FMO that caused the closure of the Fishery in 2023. Justice Ekaterina Tsimberis followed Barry Seafoods and other authorities in concluding that, absent any natural justice requirements statutorily mandated by the Fisheries Act, RSC 1985, c F-14 [Fisheries Act] or other applicable legislation, no duty of procedural fairness or natural justice was owed by the Minister in connection with that decision (at paras 52–54).
[39] Similarly, in the case at hand, the Applicants have not identified any statutorily mandated natural justice requirements applicable to the Decision to set the TAC and, in the absence of such requirements, no procedural fairness obligations applied to the Minister (or to the RDG as her delegate) in making the Decision.
[40] Moreover, while not raised in oral submissions at the hearing of this application, the only procedural fairness argument advanced with any particularity in the Applicants’ written submissions was the assertion that the decision-maker breached procedural fairness obligations arising from the Applicants’ legitimate expectations, presumably that the Applicants would be consulted prior to the Decision being made. The Applicants note the express statement in the Memorandum that no specific consultation and engagement had occurred regarding the TAC for the 2024 season.
[41] Even if the principles identified in Maple Lodge Farms did not apply, such that duties of procedural fairness could be engaged, the Applicants have not advanced submissions identifying evidence sufficient to invoke the doctrine of legitimate expectations. In order to give rise to particular procedural fairness obligations, the doctrine of legitimate expectations requires that a government official have made clear, unambiguous, and unqualified representations that they would follow a particular administrative process (Barry Seafoods at para 62; Canada (Attorney General) v Mavi, 2011 SCC 30 at para 68).
[42] Also, while not particularly relevant in the absence of a procedural fairness obligation requiring consultation before setting the TAC, I note the Memorandum’s observation of consistent messaging from commercial licence-holders that there is room for incorporating new access in the Fishery by increasing the TAC and that the Fishery can be expanded without impacting the overall health of the American eel population. While expressed in summary form, this description of the industry’s messaging is consistent with the position the Applicants are advancing in this application for judicial review, related to setting the TAC, and therefore demonstrates that DFO and the RDG were aware of the industry’s position when the Decision was made.
[43] For the reasons explained above, I find no reviewable error involving a breach of principles of procedural fairness or natural justice.
C. Is the Decision unreasonable or incorrect?
[44] As is implicit in the articulation of this issue, the merits of a decision subject to judicial review are to be assessed according to the reasonableness standard, unless the presumption that the reasonableness standard applies can be rebutted (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] at paras 16–17).
[45] The Respondents argue that the reasonableness standard applies to the Court’s consideration of the Applicants’ arguments. The Applicants largely agree, except that they take the position that the correctness standard applies to an argument they advance related to the interaction of decision-making authority under the Fisheries Act and under the Species at Risk Act, SC 2002, c 29 [SARA]. The Applicants submit that this argument engages a question related to the jurisdictional boundaries between two administrative bodies, which is one of the exceptions to reasonableness review contemplated by Vavilov (at para 17). I will turn to that aspect of the Applicants’ position on the standard of review when I address their arguments relating to the effect of the SARA upon the Decision.
[46] To the extent that both parties accept that the standard of reasonableness applies, they also agree on principles derived from Vavilov that govern the manner in which reasonableness review is to be performed. In conducting reasonableness review, the Court must ask whether the relevant decision bears the hallmarks of reasonableness, being justification, transparency, and intelligibility (at para 99). The two types of fundamental flaws that would make an impugned decision unreasonable are: (a) a failure of rationality internal to the reasoning process; or (b) the decision being untenable in light of the factual and legal constraints that bear upon it (at para 101).
[47] I also note the Respondents’ position that, while the reasonableness standard applies to the Court’s review of the Applicants’ arguments, that standard is informed by the principle that, where the impugned decision is a discretionary policy decision, decision-makers are entitled to considerable deference because they are less constrained than in other areas of administrative decision-making (Entertainment Software Association v Society of Composers, Authors and Music Publishers of Canada, 2020 FCA 100 at paras 24–32, aff’d on other grounds 2022 SCC 30).
[48] In relation to the particular legislative context applicable to the case at hand, the Respondents further argue that the power of the Minister to manage fisheries in accordance with the Fisheries Act bestows upon the Minister an extremely broad discretion to manage the fisheries in the public interest (Malcolm v Canada (Fisheries and Oceans), 2014 FCA 130 at para 52, leave to appeal to SCC refused, 36012 (20 November 2014); Carpenter Fishing Corp v Canada, 1997 CanLII 26668, [1998] 2 FC 548 (FCA); Canada (Attorney General) v Arsenault, 2009 FCA 300 at para 40, leave to appeal to SCC refused, 33457 (8 April 2010); Barry Seafoods at para 36).
[49] I accept that these jurisprudential principles apply to the matter at hand. I also agree with the Respondents that the so-called precautionary approach (also referred to as the precautionary principle) referenced in the Decision is embedded in paragraph 2.5(a) of the Fisheries Act. The focus of the precautionary approach is to achieve the exercise of more caution when information is uncertain and, where appropriate, to ensure that steps are taken to prevent irreversible harm, even when the potential risk of causing harm is uncertain (Morton v Canada (Fisheries and Oceans), 2019 FC 143 at para 168, rev’d in part on other grounds ‘Namgis First Nation v Canada (Fisheries and Oceans), 2020 FCA 122).
[50] Against that backdrop, I will turn to the Applicants’ arguments that the Decision is unreasonable.
[51] Among their initial points, the Applicants assert that the Memorandum represents an effort by DFO to constrain the Minister into adopting its preferred result, i.e., setting the TAC at the same level as past years, by failing to include a TAC increase as an option for consideration by the RDG as the Minister’s delegate. The Applicants also emphasize that the Minister is not personally engaged in the decision-making process, as the authority to set the TAC for the Fishery is delegated to the RDG.
[52] I find little merit to these arguments. There has been no suggestion that the Minister’s delegation of authority to the RDG is itself defective or improper. Further, as the Respondents submit, the Minister (and therefore the RDG as her delegate) has the power and discretion to refuse a departmental recommendation and to direct the preparation of further options should she deem it appropriate (Grand Manan Fishermens Association, Inc v Canada (Attorney General), 2023 FC 1418 at para 68).
[53] The Applicants also argue that the setting of the TAC at 9,960 kg for the 2024 season represents an abdication of the responsibility imposed upon the RDG, described by the Applicants as a “non-decision”
, because the RDG simply rolled over the TAC from the previous season without any granular assessment or explanation of the particular figure selected.
[54] Again, I find no merit to this argument. The Memorandum, which significantly informs the Court’s understanding of the reasons for the Decision, explains the rationale for the conclusion that the TAC for the Fishery should be maintained at the existing level. While those reasons will be further dimensioned in considering the Applicants’ other arguments below, the “Summary”
section appearing at the beginning of the Memorandum explains in broad strokes the basis for the Decision. That is, the TAC had been set at 9,960 kg since 2005; the regional science advice had been impacted by the unavailability of data due to the Fishery having been shut down in two of the previous five years due to safety concerns arising from unauthorized fishing and resulting conflict; the number of elvers returning to the single index river being studied in the Maritimes Region had remained above the long-term median value (i.e., an encouraging indication); but the unreported removal of elver resulting from unauthorized fishing was a source of uncertainty.
[55] Taking these considerations into account, DFO recommended to the RDG, and the RDG concurred, that the status quo should be maintained, i.e., that the TAC should remain at the level at which it had been set for many years. In the language of Vavilov, the reasoning underlying the Decision is transparent and intelligible, and I find no basis to conclude that the Decision is unreasonable simply because it did not alter the TAC from the level at which it had previously been set.
[56] Delving further into the details in the Memorandum and its attachments, the Applicants’ submissions emphasize the Memorandum’s reference to the 2013 RPA, which modelled threats to American eel and reported that elver fisheries in the Maritimes Region, as modelled, had very little effect on the population overall. The Applicants also note the Memorandum’s explanation that science advice provided for the elver fishery in 2018 stated that, at the time, removals by fishing were considered moderate relative to the overall productive capacity of the region. Furthermore, annual estimates indicated that, since 2018, the number of elvers returning to the index river (the East River in the area of Chester, Nova Scotia) had remained above the long-term median value.
[57] The Applicants also emphasize, including based on evidence in their supporting affidavits, that the American eel represents a single population, with elvers spawned in the Sargasso Sea potentially travelling to anywhere within the geographic reach of the population. As such, the Applicants assert that, regardless of the number of elvers harvested in the Maritimes Region (which is the only commercial elver fishery in Canada), the entire population remains available to contribute to the presence of the species in Canada, such that an area that is devoid of eels can be repopulated in just a few years (a phenomenon that Mr. Feigenbaum’s affidavit refers to as the “rescue effect”
).
[58] The Applicants’ evidence also references tools that they argue can be employed to mitigate any adverse effect of elver harvesting upon the overall eel population. They describe what they refer to as DFO’s “conversion policy”
(the concept that substantial reductions of harvesting in the adult eel fishery have created conservation benefits that offset fishing pressure at the glass eel life stage) and the possibility of using new river-specific reference points and related individual river quotas, which could support TAC increases in a precautionary manner. On the subject of unauthorized harvesting, the Applicants advocate for the creation of traceability systems to assist in identifying illegally harvested elver.
[59] Based on the information derived from the Memorandum and its attachments, as well as the Applicants’ evidence, they argue that there is scope for generous harvesting of elvers in the Maritimes Region, with little risk of significant adverse impact upon the overall American eel population or its presence in Canada. The Applicants also argue that increasing the TAC would reduce the incentive for unauthorized fishing and, by reducing resulting conflict, further the objective of reconciliation with First Nations.
[60] The Applicants assert that the Decision is therefore unreasonable, because it is illogical to constrain a fishery that is recognized not to have a significant adverse effect on the relevant species population. They also argue that the Decision is unreasonable for failing to engage with relevant management tools that could serve to improve the information available as to the health of the stock, reduce the level of unauthorized fishing, enhance enforcement initiatives against unauthorized fishing, and mitigate the effect of the Fishery on the species population.
[61] In considering these arguments, I note first the principle that, with limited exceptions, applications for judicial review are to be determined based on the record that was before the decision-maker at the time the decision under review was made (Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 [Access Copyright] at paras 19–20). Applying this principle, CCSEF Dec 2024 granted in part the Respondents’ motion to strike large portions of the evidence that was contained in the Applicants’ affidavits as originally filed in this matter. In declining to accede to the Applicants’ argument that the admissibility of the evidence impugned by the Respondents should be addressed at the hearing of this matter, Justice Pamel held as follows (at para 26):
In this case, I am of the view that an advanced ruling is necessary. From my review of the affidavit evidence, it seems to me that the applicants are looking to debate the manner in which the elver fishery in Canada has been managed, and will continue to be managed in the future. Not only is that issue beyond the scope of this application, but, as I mentioned in my decision of May 3, 2024, at paragraph 38, the Court should not get involved in the management and policing of the fisheries in this country, and should certainly avoid managing the manner in which the Minister is carrying out her statutory powers. Here, the only issue is the reasonableness of the 2024 TAC decision.
[62] Nevertheless, Justice Pamel concluded that some of the Applicants’ evidence should survive the Respondents’ motion to strike, on the basis that it fell within one of the Access Copyright exceptions (CCSEF Dec 2024 at paras 32-33). The Applicants subsequently amended their Application Record to include only the surviving evidence. There is no basis for the Court to revisit Justice Pamel’s conclusions. As such, I am prepared to take the Applicants’ surviving evidence into account. However, as explained below, I am not satisfied that any of the Applicants’ arguments undermine the reasonableness of the Decision.
[63] While the Applicants emphasize aspects of the scientific information that could support an increased harvesting effort, there is no basis to conclude that DFO or the RDG overlooked favourable aspects that might have supported a decision to increase the TAC. As the Applicants acknowledge, the Memorandum noted the RPA modelling that showed little effect of the Maritimes Region elver fisheries on the population overall, the 2018 science advice that removals by fishing were considered moderate, and the trend since 2018 of the number of elver returning to the index river being above the long-term median value. Indeed, the Memorandum expressly stated that, ordinarily, this trend would be encouraging and could support an argument to increase the TAC.
[64] These portions of the Memorandum also demonstrate DFO’s reasoning in deciding not to recommend an increase to the TAC (and therefore the RDG’s reasoning in deciding not to set an increase), notwithstanding these favourable indications. The Memorandum references the RPA’s explanation that the understanding of the threat from elver fisheries to the American eel population, and the effectiveness of mitigation measures, is limited by uncertainties associated with the degree of density-dependent survival that occurs between the elver and silver eel phase. The Memorandum also references uncertainties about American eel abundances throughout its range and, notwithstanding increases in recruitment in the Maritimes Region, evidence of an overall declining population trend in Canada.
[65] The Memorandum also emphasizes in particular the significant uncertainty surrounding the level of overall removals in the Maritimes Region, because of several years of increasing unauthorized fishing. Against that backdrop, the Memorandum further explains that there are fisheries management initiatives under development that could change the number of authorized participants in the Fishery, changes to the methods and areas in which they fish, and new regulations to support traceability. The Memorandum therefore advocates (and the RDG ultimately accepted) a precautious path, involving setting the TAC at the same level as had been maintained since 2005.
[66] When the aspects of the science upon which the Applicants rely are considered in the context of the rest of the Memorandum, the reasoning underlying the Decision is comprehensible and rational.
[67] I also note the Memorandum’s reference to new regulations to support traceability, which is one of the management initiatives that the Applicants appear to favour. The Memorandum does not reference the conversion policy or river-specific reference points to which the Applicants’ evidence refers. However, consistent with the reasoning in CCSEF Dec 2024, the Court’s role is not to assess the wisdom of particular tools or methods for managing the Fishery. Rather, the Court’s mandate is to review the reasonableness of the Decision. As explained above, the Decision is intelligible and logical and, while there may have been scope for the RDG to have arrived at a different decision as to the TAC level in the Fishery for the 2024 season, that possibility does not undermine the Decision’s reasonableness.
[68] Finally, I will turn to the Applicants’ arguments surrounding the effect of the SARA upon the Decision, including their argument that the standard of correctness applies to the Court’s review of that aspect of the Decision. As previously noted, the background canvassed by the Memorandum included concern regarding the American eel population. In relation to the SARA, the Memorandum made the following observations:
… American eel has been assessed as Threatened by the Committee on the Status of Endangered Wildlife in Canada (COSEWIC) and is currently being considered for listing under the Species at Risk Act. This continues to influence management considerations for the elver fishery.
[69] The Applicants’ evidence provides additional information on this subject. Mr. Feigenbaum states in his affidavit that DFO has still not made a recommendation to list the American eel under the SARA and, argumentatively, that this represents a failure to fulfil a statutory duty for over 11 years. He also refers to DFO officials (including the official who signed the Memorandum in 2024 and the RDG who made the Decision) having stated in 2021 and in years prior that DFO would not consider an increase in the TAC for glass eels while a decision to list American eel as threatened on the SARA registry remains pending.
[70] There is no evidence before the Court as to the status of the government’s consideration whether to list American eel under the SARA, other than Mr. Feigenbaum’s evidence that DFO has still not made a recommendation to that effect. However, the government’s decision whether or not to list American eel under the SARA is not under review in this application. Rather, against the evidentiary backdrop described above, the Applicants submit that the long-pending decision to be made under the SARA represents a consideration that is irrelevant or extraneous to the TAC decision the RDG was required to make under the Fisheries Act. The Applicants therefore submit that the influence of this consideration (which the Applicants’ written submissions describe as the sole or primary reason for refusing to increase the TAC) renders the Decision unreasonable.
[71] Turning to the standard of review applicable to this argument, the Applicants seek to invoke the less deferential standard of correctness, relying on the exception to the presumptive reasonableness standard that applies to questions regarding the jurisdictional boundaries between two or more administrative bodies. Vavilov explains the rationale for correctness applying in such circumstances, being that the rule of law cannot tolerate conflicting orders and proceedings where they result in a true operational conflict between two administrative bodies, pulling a party in two different and incompatible directions (at para 64).
[72] This exception to the reasonableness standard does not apply to the argument the Applicants are advancing. The Court is not being asked to adjudicate which of two competing administrative bodies has the statutory authority to set the TAC. Rather, as explained above, the Applicants argue that, in setting the TAC under the Fisheries Act, the RDG took into account irrelevant considerations. The reasonableness standard clearly applies to the Court’s consideration of that question.
[73] Returning to the reasons for the Decision as reflected in the Memorandum, I cannot agree with the Applicants that the pending decision to be made under the SARA was the sole or primary reason for the Decision. The Memorandum’s reference to the COSEWIC’s assessment of the American eel as threatened and its consideration for listing under the SARA appears in the background portion of the Memorandum and (taking into account the reasoning underlying the Decision as identified earlier in these Reasons) by no means presents as an overriding factor.
[74] That said, the Memorandum does state that the COSEWIC’s assessment and possible SARA listing continue to influence management considerations for the elver fishery. I therefore accept that the COSEWIC recommendation and possible SARA listing were a factor taken into account in formulating the recommendation contained in the Memorandum, and therefore a factor underlying the Decision. However, given the clear significance of conservation as a factor underlying fisheries management decisions (Comeau’s Sea Foods Ltd v Canada (Minister of Fisheries and Oceans), [1997] 1 S.C.R. 12 at para 37, 1997 CanLII 399 (SCC)) and the statutory enshrinement of the precautionary approach, I do not find this factor to be an irrelevant consideration, such that its influence would undermine the reasonableness of the Decision.
D. What is the appropriate relief, if any?
[75] As the Applicants have not been successful in their arguments challenging the Decision, no relief will be awarded.
VI. Conclusion and Costs
[76] As I have identified no reviewable error in the Decision, this application for judicial review must be dismissed, and my Judgment will so provide.
[77] At the hearing of this application, following prompting by the Court, the parties consulted with each other and jointly proposed that a lump-sum costs figure of $5000.00 be awarded to the successful party. As the Respondents have succeeded in this application, they shall have costs in that amount.
[78] The parties also agreed that, in the event the Respondents succeeded both on the merits of the application and in arguing that NovaEel and CCSEF should be removed for lack of standing, the three named Applicants as of the commencement of the hearing (South Shore, NovaEel and CCSEF) should all bear the costs award. I agree with this result, and my Judgment will so provide.
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