Ottawa, Ontario, April 21, 2006
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
THOMAS CAMPBELL, CLAUDE COLEMAN,
JOHN "JACKIE" de VRIES, TOBY FUDGE,
GRAHAM MACCUSPIC, MALCOLM MACDONALD,
MURDOCK MACMULLIN, CONRAD MILLS, and
ROGER STODDARD
and
THE ATTORNEY GENERAL OF CANADA
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review of a decision of the Minister of Fisheries and Oceans (the Minister) with respect to nine applicants denying their requests for access to the Eastern Nova Scotia Snow Crab Fishery in 2005 (the Fishery).
FACTS
[2] The applicants (other than Mr. MacCuspic), for some years, profited from temporary access to the Fishery through membership in fishing industry groups, after having previously disposed of their permanent licences in various ways.
[3] The applicants' (with the exception of Mr. MacCuspic) particular access during that time was possible under a Department of Fisheries and Oceans (the DFO) policy in place, which granted a limited number of temporary permits to those who met the criterion of being adjacent "CORE" fishermen who had home ports within the boundaries of Area 23 on January 1, 1996. In order to take advantage of the policy, fishers were required to contact one of the industry groups responsible for the organization of the program, who then confirmed with the DFO that the fishers met the criteria. The fishers then received a share of the proceeds of the sale of the crab caught with that industry group's quota. The number of fishers holding permits within a certain group had no effect on the overall allocation of crab quota (or biomass) to the particular industry group.
[4] In 2004, the Minister struck an Independent Panel (the Panel) to provide him with recommendations for the future management plans of the Fishery.
[5] In February 2005, the Panel provided its report, containing nine recommendations, to the Minister.
[6] On May 15, 2005, the Minister approved all but one of the Panel's recommendations (that one not being relevant to this application), including Recommendation 8, which concerns "Eligibility Criteria" and reads as follows:
Participation in the snow crab fishery and CFA's 20-24 should be closed to additional entrants. Eligibility for quota holder status should be based on a single criterion: those who held a temporary permit in 2004.
(...)
This recommendation may require clarification for specific situations:
(...)
Those who ever held a permanent crab licence and sold it should not be eligible for re-entry to the crab fishery unless it is through the valid transfer (purchase) of an existing permit or licence. Some permanent licence-holders took advantage of earlier access criteria by capitalizing on the value of the permanent licence by selling it and then adding to income by using their core status to be issued a temporary permit. This practice should not have been permitted and steps should be taken to tighten the criteria to exclude anyone who has ever held a permanent licence from entitlement to a permit. Any new licence criterion issued by DFO in response to Recommendation 8 should be worded in such a manner to accomplish this.
[7] Each of the applicants appealed the Minister's denial of temporary access to the 2005 Fishery to AFLAB. The role of AFLAB, an appeal process pursuant to the Commercial Fisheries Licensing Policy for Eastern Canada, 1996, is to offer recommendations to the Minister on licensing appeals by determining (i) if the appellant was treating fairly in accordance with DFO policies, practices, and procedures; and (ii) whether there are any extenuating circumstances for deviation from established policies, practices or procedures.
[8] In the concluding passages of the reports given in the disposition of the applicants' appeals, AFLAB recommended as follows:
[9] In making its recommendations to the Minister on the appeals of Malcolm MacDonald, Tom Campbell and John "Jackie" deVries (three of the applicants), AFLAB recommended that these appeals be denied. The recommendation further stated:
"The Board found no extenuating circumstances to warrant approval of the request and believes the appellant was treated fairly in accordance with DFO policy. The Board believes that, although the permanent licence was transferred to a family member and recognizes that money may not have changed hands, the result was an overall increase in access to the fishery. The Board further feels that the appellant should not have been granted temporary access in the past, and the Independent Panel identifies this in recommendation eight."
[10] In making its recommendations to the Minister on the appeals of Murdock MacMullin, Roger Stoddard, Toby Fudge, Claude Coleman and Conrad Mills (five of the applicants), AFLAB recommended that these appeals be denied. The recommendations further stated:
"The Board found no extenuating circumstances to warrant approval of the request, and believe the appellant was treated fairly in accordance with DFO policy. The Board further feels that the appellant should not have been granted temporary access in the past, and the Independent Panel identifies this in recommendation eight."
[11] In making its recommendation to the Minister on the appeal of Graham MacCuspic, the remaining applicant, AFLAB stated:
"It is recommended that Graham MacCuspic's appeal be denied. The Board could find no extenuating circumstances to warrant approval of the request, and feels the appellant was treated fairly in accordance with DFO policy. The criteria for temporary access in 2004 was limited to Core enterprises with approved temporary access in 2003. Mr. MacCuspic held a permanent snow crab licence in 2003 and could, therefore, not be eligible for 2004 and subsequently 2005."
[12] On August 10, 2005, the Minister approved the recommendations of AFLAB contained within the reports. This decision is the subject of the present application.
ANALYSIS
1. Mootness
[13] The doctrine of mootness supports the concept that a Court will decline to hear a case that cannot resolve a live controversy affecting the rights of the parties to the proceeding. However, a Court may exercise its discretion to hear a case, if the interests of justice so dictate: Borowski v. Canada(Attorney General), [1989] 1 S.C.R. 342.
[14] In the recent decision of Area Twenty Three Snow Crab Fisher's Assn. v. Canada (Attorney General), 2005 FC 1190, [2005] F.C.J. No. 1454 (F.C.) (QL) at paragraphs 26-35, my colleague Justice Richard Mosley dealt with a nearly identical issue. The case before him involved the 2004-05 fishing season and thus he was satisfied that there was no present live controversy affecting the rights of the applicants. He then went on to consider whether the Court should exercise its discretion to address the issues.
[15] His conclusions were two-fold and drawn according to each distinct issue. With regard to the first issue, he concluded that the Court should not exercise its discretion to review the imposition of the licence conditions restricting access to the slope edge as, given that there was no evidence to indicate that the same trap survey would continue in subsequent seasons, any future controversy in that respect would be entirely hypothetical. As for the second issue, he found it to be arguable that the quota reduction sharing formula would apply in future years and thus that there was some merit to the applicants' argument that this remained an adversarial context between the parties. He was also sympathetic to the applicants' argument that the exigencies of the judicial review process meant that it would be practically impossible to hear an application respecting the crab fishery quota in any given year before the issue had become moot.
[16] For similar reasons, I have also concluded that the application before me is moot as there is clearly no live controversy affecting the rights of the applicants with respect to the 2005 Fishery. Nevertheless, as did my colleague Justice Mosley, I believe that it is in the public interest for the Court to exercise its discretion to hear the matter to determine whether the decision to deny the applicants access was made in error or not. I agree with the applicants that, unless a new policy is introduced, the Minister's decision is unlikely to change in future years and thus will affect the applicants' future access to the Fishery. Moreover, given the nature of the judicial review process, it would be practically impossible to hear an application respecting access to the Fishery in any given year before the issue becomes moot and therefore the question would always evade review by the Court: Borowski, above, at para. 36.
[17] Accordingly, even though I have found the application to be moot, I still believe it necessary to consider whether the Minister's decision was made in error.
2. Nature of the Impugned Decision
[18] From the outset, it is important to stress thatministerial policies, including fishing quota policies, are not binding. They are not law. Therefore, even if the Minister did deviate from an adopted policy, such deviation, in and of itself, would not warrant judicial review. In Skycharter Ltd. v. Canada (Minister of Transport), [1997] F.C.J. No. 128 (T.D.) at paragraphs 11-12, Justice Wetston held that policy statements and directives are not binding on an authority (i.e. the Minister) and are not enforceable by members of the public. In the result, he held that the errors alleged by the applicants related solely to the authority's failure to adhere to non-binding, unenforceable policy directives and dismissed the application for judicial review.
[19] Subsection 7(1) of the Fisheries Act, R.S.C., 1985, c. F-14 provides the Minister with absolute discretion to issue fishing licenses, subject to certain narrow exceptions. I support the interpretation of Justice Mosley in Area Twenty Three, above, that the use of the term "absolute discretion" in subsection 7(1) is a signal of Parliament's intention that the Court should grant significant deference to the Minister. The Minister has special expertise with respect to the issuance of fishing licenses and it is the Minister who is charged with the management of the fishery and its conservation: Area Twenty Three, above, at paras. 19-20.
[20] In Comeau's Sea Foods Ltd. v. Canada (Minister of Fisheries and Oceans), [1997] 1 S.C.R. 12, Justice Major, speaking for the Court, reiterated the principle that there is no such thing as a vested right in a fishing licence beyond those rights granted for the period for which the license was issued. Drawing upon the decision of Justice Strayer in Joliffe v. The Queen in right of Canada, [1986] 1 F.C. 511 (T.D.), the Court reaffirmed that following the expiration of a licence, the Minister has an absolute discretion in the issuance of a new licence. "Licensing is a tool in the arsenal of powers available to the Minister under the Fisheries Act to manage fisheries.": Comeau's Sea Foods, above, at paras. 33 and 37.
[21] As reiterated by Justice Mosley in the Area Twenty Three, above, case, the Minister's exercise of "absolute discretion" is subject only to the requirements of natural justice: Comeau's Sea Foods, above, at para. 36. Therefore, such decisions are not reviewable except upon demonstration by the applicants that the Minister exercised bad faith, denied them procedural fairness, or relied predominantly on extraneous or irrelevant factors in making the decision: Area Twenty Three, above, at para. 25; Maple Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2 at 4.
[22] It is important to emphasize that the principles of natural justice do not apply to the determination of the policy itself. The Court's function is not to review the actual policy adopted by the Minister, but rather the individual decisions respecting the issuance of licenses. To do otherwise would amount to Court interference with what is essentially a legislative or policy matter and thus any remedy that may be available would be political, not legal: Canadian Association of Regulated Importers v. Canada (Attorney General), [1994] 2 F.C. 247 (F.C.A.) at 10.
3. Natural Justice
[23] In Area Twenty Three, above, Justice Mosley, at paragraphs 17-25, conducted a detailed analysis to determine the standard of review when faced with an exercise of the Minister's discretion under section 7 of the Fisheries Act and concluded that the standard was that of patent unreasonableness. With respect, and for the following reasons, I am of the view that the pragmatic and functional approach does not apply to questions of natural justice.
[24] In Canadian Union of Public Employees (C.U.P.E.) v. Ontario(Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539, the Minister made discretionary appointments under the Ontario Labour Relations Act, 1995, S.O. 1995, c. 1. The unions objected to the appointments themselves and further complained that the Minister's actions had breached procedural fairness and denied natural justice.
[25] In dismissing the appeal, Justice Binnie, writing for a majority of the Supreme Court of Canada, drew a distinction between the substantive and procedural issues before the Court. He wrote that while the discretionary appointments themselves are subject to the pragmatic and functional analysis, any questions regarding acts or omissions relevant to procedural fairness and the principles of natural justice were for the Courts, not the Minister, to answer (at para. 100). "The content of procedural fairness goes to the manner in which the Minister went about making his decision, whereas the standard of review is applied to the end product of his deliberations" (para. 102).
[26] In the case before me, what is challenged is not the Minister's ultimate decision or "end product of his deliberations" (although the applicants clearly disagree with it), but rather the "manner" in which he arrived at the decision. Moreover, it is recognized by both parties, by virtue of Comeau's Sea Foods, above, that the Minister's absolute discretion in issuing fishing licenses must withstand only the rigours of natural justice. As held by the Court in C.U.P.E., above, the content of such natural justice is a matter for the Courts, and not the Minister, to decide. The questions before me do not raise substantive issues and, therefore, no standard of review will apply.
4. Alleged Violations of Natural Justice
[27] This application is to determine whether the Minister, in approving AFLAB's reports and recommendations, violated the principles of natural justice. AFLAB's reports and recommendations are thus inextricably tied to the Minister's decision and so their content will form the subject of review by this Court: Jada Fishing Co. v. Canada(Minister of Fisheries and Oceans), 2002 FCA 103, [2002] F.C.J. No. 436 (F.C.A.) (QL) at paras. 12-13; Decker v. Canada(Attorney General), 2004 FC 1464, [2004] F.C.J. No. 1762 (F.C.) (T.D.) at paras. 56-61.
[28] The applicants submit that AFLAB failed to take into account "extenuating circumstances"; failed to address the alleged deviation by the DFO from the Panel's recommendations; took into account an irrelevant consideration; and finally, that the decision promotes the private interest of some fishers to the exclusion of others.
[29] Before turning to consider each of these allegations, I will deal first with the applicant, Mr. MacCuspic, since his case is different. Mr. MacCuspic held a permanent snow crab license which he transferred on April 30, 2004. AFLAB found that, according to the Policy, access for temporary access in 2004 was limited to those with approved temporary access in 2003. This did not include Mr. MacCuspic because he held a permanent license in 2003.
[30] The applicants submit that Mr. MacCuspic would have been eligible for access according to the criteria set out in the DFO policy in existence at the time he applied (i.e. a CORE fisherman with a home port as of January 1, 1996 in Area 23, who did not hold a permanent licence at the time of application), however, the DFO did not process that application until a new policy was introduced on May 20, 2004. By virtue of that new policy (and not the policy in existence at the time that he had made his application), he was no longer eligible as he had not had access in 2003, a new criteria brought in by the new policy. Thus, his application for temporary access to the Fishery in 2004 should have been processed under the former policy, and not under the policy that was introduced on May 20, 2004.
[31] I disagree with the applicants' statement of the facts. As pointed out in the affidavit of Michael Eagles, at paragraphs 16 and 17, Mr. MacCuspic was not eligible for temporary access in 2003 as he held a permanent snow crab license at that time. He relinquished his permanent snow crab licence in 2004, which allowed him to apply for temporary access to the 2004 Fishery. At that time, there were no approved criteria for temporary access to the 2004 Fishery. The eligibility criteria for the 2004 season were released subsequently, on May 20, 2004, and mandated that an eligible 2004 CORE enterprise must have been approved for temporary access in 2003. It is that criteria which was applied to Mr. MacCuspic's request. This is the evidence on the record. The applicant MacCuspic's case is different from those of the other applicants because he was never eligible, and had never been previously granted temporary access to the Fishery. He does not bring any allegation of bad faith on the part of the Minister. I fail to understand how his denial of temporary access constitutes a breach of natural justice.
[32] I will now consider the remaining applicants' allegations relating to a breach of natural justice on the part of AFLAB.
(i) Did AFLAB fail to take into account "extenuating circumstances"?
[33] The applicants submit that one of the "extenuating circumstances" before AFLAB was that the new policy instituted by the DFO was inconsistent with the recommendation of the Panel, which was accepted by the Minister, that the sole criteria should be that those who had access in 2004 should continue to have access. They further submit that based on the case of Decker, above, AFLAB was required to consider this circumstance and the failure to analyse this point constitutes a denial of natural justice. I disagree with the applicants.
[34] The key distinguishing factor between Decker, above, and the case before me is that, in that case, there was evidence before AFLAB which might have constituted "extenuating circumstances" to which AFLAB made no mention. In the present case, AFLAB did in fact consider Recommendation 8 but found it not to constitute an "extenuating circumstance". It is apparent from each of the nine AFLAB reports concerning the applicants that AFLAB specifically referred to Recommendation 8, which dealt with the revised access criteria. The applicants do not identify any other evidence before AFLAB which should have been considered.
[35] The applicants further submit that in the cases of other fishers, there was no analysis as to what factors would satisfy the concept of "extenuating circumstances" and that AFLAB should have given guidance on the factors to be considered as relevant in determining "extenuating circumstances."
[36] It is difficult to envisage what the applicant has in mind when it comes to criteria to determine if there are extenuating circumstances. The Commercial Fisheries Licensing Policy for Eastern Canada is clear that one of the roles of AFLAB is to determine whether there are any extenuating circumstances for deviation from established policies, practices or procedures. In my opinion, this type of analysis must be conducted on a case-by-case basis in light of the evidence before AFLAB.
(ii) Did AFLAB fail to address the alleged deviation by the DFO from the Panel's recommendations?
[37] The applicants submit that the DFO policy, by which their access was denied, deviates from the Panel's recommendations, which were ultimately adopted by the Minister and that it was a denial of natural justice for AFLAB to fail to address this deviation issue in its decision. Each of the applicants (with the exception of Mr. MacCuspic, who had initiated an appeal within the system) met the criteria set out in Recommendation 8: they had temporary access in 2004.
[38] The respondent, on the other hand, submits that the applicants have chosen to put their argument on the strength of only part of Recommendation 8, namely the first paragraph, and that there is no mileage in this selective effort, which fails to take account of the specific and relevant clarification offered by the Panel in the text that follows the introduction of Recommendation 8. In that clarification, the Panel recognizes that the original intent of the access sharing program was to provide temporary access to heads of CORE enterprises as of January 1, 1999, but then the Panel goes on to explain that it was never intended to facilitate what the applicants did, that is dispose of their permanent crab licence, and then continue to benefit from the Fishery by way of temporary access.
[39] I agree with the respondent that there is no merit to the applicants' contention that AFLAB failed to address the matter of the policy respecting eligibility for temporary access to the Fishery, including the alleged deviation from the adopted policy. It is clear from AFLAB's reports that it was aware and understood the applicants' concern regarding Recommendation 8. I also note that the DFO took the opposite position. AFLAB clearly made note of both sides and ultimately agreed with the DFO's position. I can see no error in so doing.
(iii) Did AFLAB take into account an irrelevant consideration?
[40] A Minister's decision is not reviewable when it takes into account a minor irrelevant factor. Instead, what is necessary is to show that the Minister predominantly took into account irrelevant factors in arriving at the decision: Area Twenty Three, above, at para. 25.
[41] According to the applicants, each year the DFO determines the total amount of biomass to be fished. This biomass is then allocated between different affected groups. Granting access to certain individuals, such as the applicants, did not create additional pressure on the fishery, but would simply include the applicants within the allocation of biomass that had been allocated to fishers in the same category. In other words, it would "spread it around" or divide it among a larger group. The applicants thus submit that in finding that granting temporary access to the applicants created additional pressure on the fishery, AFLAB took account of an irrelevant consideration.
[42] The respondent submits that the applicants are entitled to their views, but not entitled to dictate to the Minister who and how many fishers should be allowed to participate in any particular fishery. I am in complete agreement with the respondent's position.
[43] Whether granting the applicants temporary access would increase pressure on the Fishery is indeed a relevant factor for the Minister to consider and it is not the role of the Court to review decisions that only the Minister can make.
(iv) Does the Minister's decision promote the private interest of some fishers to the exclusion of others?
[44] The applicants' arguments are once again sourced in the perceived deviation by DFO staff from the recommendations adopted by the Minister. In this regard, the applicants rely on the case of Carpenter Fishing Corp. v. Canada, [1997] 1 F.C. 874 (T.D.) rev'd [1998] 2 F.C. 548 (C.A.). Unfortunately, that decision was overturned on appeal on the very grounds on which the applicants seek to rely. Justice Décary, for the Federal Court of Appeal, decided that when examining an exercise of the Minister's discretion in relation to the establishment and implementation of fishing quota policy, courts must recognize the intent of Parliament and only intervene when the Minister's actions are beyond the purposes of the Fisheries Act. Quotas may carry with them some element of arbitrariness and unfairness, but the imposition of such a quota does not amount to reviewable action. It is not the function of the courts to question whether a quota policy is good or bad: Carpenter, FCA, above, at paras. 28, 37, 39 and 41. Moreover, I borrow the words of Justice Nadon in Assoc. des Senneurs du Golf Inc. v. Canada (Minister of Fisheries and Oceans), [1999] F.C.J. No. 1449, that within the scheme of the Fisheries Act, there is nothing wrong with the "Minister favouring one group of fishers at the expense of another" (at para. 25).
Conclusion
[45] To conclude, it bears repeating that there is no such thing as a permanent vested right in a fishing license. The rights that come with a fishing license are only granted for the period of time for which the license is issued. Following the expiration of that license, the Minister has absolute discretion in deciding whether to issue a new license. Even if the applicants' denial of continued temporary access could be characterized as a departure from the Minister's policy, this does not in itself constitute grounds for judicial review. Policies are not law, they are neither binding on an authority nor enforceable by members of the public. To proceed under the misconception that policies should be elevated to the level of binding law would amount to a fettering of the Minister's absolute discretion in granting fishing licenses. While I am sympathetic to the applicants' frustration in being denied access to the Fishery, it is not the Court's role to interfere with the Minister's policy decisions in the management of the fisheries.
[46] In the result, this application for judicial review is dismissed.
JUDGMENT
The application for judicial review is dismissed.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1534-05
STYLE OF CAUSE: Thomas Campbell et al
and
The Attorney General of Canada
PLACE OF HEARING: Halifax, Nova Scotia
DATE OF HEARING: April 13, 2006
REASONS FOR : TREMBLAY-LAMER J.
APPEARANCES:
| Mr. Ralph Ripley
|
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| Mr. Reinhold Endres, Q.C.
|
SOLICITORS OF RECORD:
| Barrister and Solicitor PO Box 7 295 Charlotte Street, Suite 202 Sydney, Nova Scotia B1P 6G9
|
|
| John H. Sims, Q.C. Deputy Attorney General of Canada
|
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