Date: 19991117
Docket: T-949-98
Ottawa, Ontario, November 17, 1999.
Present: THE HONOURABLE MR. JUSTICE DENAULT
Between:
JEAN COULOMBE
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
ORDER
The application for judicial review is dismissed.
PIERRE DENAULT
Judge
Certified true translation
Peter Douglas
Date: 19991117
Docket: T-949-98
Between:
JEAN COULOMBE
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
DENAULT J.:
[1] This is an application for judicial review to quash and declare null and void the May 5, 1998 decision of Martin St-Gelais, Acting Resource Manager and Area Representative, North Shore District, at the Department of Fisheries and Oceans (the Department). The Department thereby required the applicant to confirm in writing that he had entered into an agreement with a certified at-sea observer company in order for the conditions of his fishing licence for the 1998 season to be issued to him.
[2] The applicant, a commercial fisherman, held a commercial fishing licence for the 1998 season to fish for snow crab in Area 16 and herring and groundfish (except cod) in Area 15. The evidence shows that on March 20, 1998, he received a request from the Department"s Regional Director-General, Laurentian Region, to arrange to have an at-sea observer on board his fishing vessel.
[3] On April 15, 1998, Martin St-Gelais, Resource Manager, North Shore District, wrote to the applicant regarding the At-Sea Observer Program, to confirm the procedure in effect and steps to be taken before the Department issues snow crab fishing licence conditions. On that occasion, Mr. St-Gelais reminded the applicant that he was required to have an observer on board his fishing vessel (condition 6 of the 1998 licence conditions)1 and requested that he confirm in writing what he intended to do to fulfill that requirement; Mr. St-Gelais also told him that if the action he took in that regard was acceptable, the Department would then take the necessary steps to issue licence conditions to allow him to begin his fishing activities for the 1998 season.
[4] The applicant initially objected to the Department"s requirement but eventually entered into an agreement with the company providing at-sea observer services and signed the form containing the 1998 licence conditions, without prejudice, on May 11, 1998. The Department, through its authorized agent, accordingly signed the document authorizing the applicant to fish. Meanwhile, unhappy with having to pay for the observer on board his vessel, the applicant commenced this application for judicial review.
[5] The applicant argues that the Department did not have the power to require him to enter into a contract with a certified observer company before issuing licence conditions to him. He also maintains that it goes against his guaranteed rights under section 7 of the Canadian Charter of Rights and Freedoms for the Department to require him"a licence holder"to contract with a third party in order to be issued his fishing licence conditions. Last, he argues that the Regional Director is not authorized to set licence conditions, a power that belongs exclusively to the Minister of Fisheries and Oceans.
[6] In the case at bar, there is nothing to suggest that the conditions set by the Department infringe the applicant"s right to life, liberty and security of the person, guaranteed by section 7 of the Charter , and given that the issue the applicant raised"payment of an observer on board his vessel"relates only to a purely economic interest, the matter does not involve a right guaranteed by that section of the Charter (see, inter alia: Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; Reference re Criminal Code (Manitoba), [1990] 1 S.C.R. 1123, pp. 1162-1171, Lamer J.; Cosyns v. Attorney General of Canada (1992), 88 D.L.R. (4th) 507, pp. 518-520 (Ont. Div. Ct.)).
[7] The applicant"s main argument is no more valid. First of all, paragraph 43(a ) of the Fisheries Act, R.S.C., c. F-14, provides that the Governor in Council may make regulations for the proper management and control of the sea-coast and inland fisheries:
| 43. The Governor in Council may make regulations for carrying out the purpose and provisions of this Act and in particular, but without restricting the generality of the foregoing, may make regulations (a) for the proper management and control of the sea-coast and inland fisheries; |
43. Le gouverneur en conseil peut prendre des règlements d"application de la présente loi, notamment : a) concernant la gestion et la surveillance judicieuse des pêches en eaux côtières et internes; |
[8] In addition, under paragraph 22(1)(n) of the Fishery (General) Regulations, SOR/93-53 (the Regulations), the Minister may specify in a licence any condition respecting verification by an observer of the weight and species of any fish caught and retained:
| 22.(1) For the proper management and control of fisheries and the conservation and protection of fish, the Minister may specify in a licence any condition that is not inconsistent with these Regulations or any of the Regulations listed in subsection 3(4) and in particular, but not restricting the generality of the foregoing, may specify conditions respecting any of the following matters: . . . (n) verification by an observer of the weight and species of any fish caught and retained; |
22.(1) Pour une gestion et une surveillance judicieuse des pêches et pour la conservation et la protection du poisson, le ministre peut indiquer sur un permis toute condition compatible avec le présent règlement et avec les règlements énumérés au paragraphe 3(4), notamment une ou plusieurs des conditions concernant ce qui suit : [...] n) la vérification, par l"observateur, du poids et de l"espèce de tout poisson pris et gardé; |
[9] Under the same Regulations, the Regional Director-General designates and assigns duties to the observer:
| 39.(1) The Regional Director-General may designate as an observer any individual who is qualified and trained to perform any of the duties described in subsection (2) and who |
39.(1) Le directeur général régional peut désigner, à titre d"observateur, tout particulier qui possède les qualifications et la formation en vue d"exercer les fonctions visées au paragraphe (2) et qui : |
| (a) does not hold a certificate of accreditation issued under the Professional Fish Harvesters Act, S.N. 1996, c. P-26.1, or a fisher"s registration card; |
a) ne détient ni certificat d"accréditation délivré en vertu de la Loi de Terre-Neuve intitulée Professional Fish Harvesters Act , S.N. 1996, ch. P-26.1, ni carte d"enregistrement de pêcheur; |
| (b) does not purchase fish for the purpose of resale; and |
b) n"achète pas de poisson en vue de la revente; |
| (c) is not an owner, operator, manager or employee of an enterprise that catches, cultures, processes or transports fish. |
c) n"est pas le propriétaire, l"exploitant, le directeur ou l"employé d"une entreprise de pêche, d"aquaculture, de transformation ou de transport du poisson. |
| (2) The Regional Director-General shall assign to an observer designed under subsection (1) one or more of the following duties: |
(2) Le directeur général régional attribue à l"observateur désigné en vertu du paragraphe (1) l"une ou plusieurs des fonctions suivantes : |
| (a) the monitoring of fishing activities, the examination and measurement of fishing gear, the recording of scientific data and observations and the taking of samples; |
a) la surveillance des activités de pêche, l"examen et le mesurage des engins de pêche, la consignation des données scientifiques et des observations et le prélèvement d"échantillons; |
| (b) the monitoring of the landing of fish and the verification of the weight and species of fish caught and retained; and |
b) la surveillance du débarquement des poissons et la vérification du poids et de l"espèce des poissons pris et gardés; |
| (c) conducting biological examination and sampling of fish. |
c) la conduite d"analyses biologiques et le prélèvement du poisson. |
[10] In order to show how the Department called for tenders to ensure the provision of at-sea observers by a company independent of the fishers, it would be useful to refer to the affidavit of John Chouinard, who is responsible for the Department"s protection operations:
| [TRANSLATION] |
| 6. The at-sea observer program has been in existence in Atlantic Canada since the late 1970s and was introduced into the region containing Quebec"s maritime territory in 1980; |
| 7. The main objective of this program is to gather the scientific data required for the assessment of fish stocks and the effective monitoring of fishing activities; |
| 8. This program is an essential tool for sound fisheries management and the conservation and protection of fish stocks; |
| . . . |
| 14. Until 1995, except for services related to a very low percentage of fishing activities, at-sea observer services were fully paid by the Canadian government with public funds; |
| 15. As of 1995, in the context of major budget reductions within the Canadian government, the Department decided to share the costs of monitoring by at-sea observers with fishers; |
| 16. Thus, in 1995, on behalf of the Department, the Department of Public Works and Government Services Canada (Public Works) called for tenders nationwide in order to retain companies to provide at-sea observer services for all of the Department"s administrative regions in Atlantic Canada, including the Laurentian region; |
| . . . |
| 18. In the Laurentian region, Biorex Inc. was awarded a three-year contract on August 1, 1995, with an optional two-year contract renewal period; |
| 19. The contract was awarded to Biorex under a call for tenders, which implies that Public Works had to retain the company that made the best proposal for the provision of the services sought; |
| 20. By winning the contract, Biorex held exclusive rights to provide at-sea observer services in the Laurentian region; |
| 21. That exclusive rights clause is included in the terms of the contract; |
| 22. The purpose of such an exclusive rights clause is to guarantee sufficient business volume to ensure the viability of the company retained, while reducing costs to the lowest possible level; |
| 23. The exclusive rights clause also aims to guarantee some form of program integrity, in that fishers are required to take observers from the firm that has the contract, which thereby avoids any form of blackmail to which observers could be subjected when reporting potential cases of illegal activities on a particular vessel to the Department. |
| . . . |
| 31. The signed contract between the Department and the observer firm contains clauses setting out the terms for recovering costs that fishers must pay; |
| 32. In the context of budget reductions and making commercial fishers more accountable for the renewable resource, the Department decided to shift all of the costs of monitoring fishing activities by at-sea observers to the fishers. This was also based on the objectives the Canadian government set for making fishers accountable for the harvesting of a public resource and the establishment of a decision-making process under which fishers participate in discussions about, inter alia, the choice of conservation measures to be monitored at sea. All of this is part of the new government initiatives known as client partnership; |
| 33. Since 1996, except for administrative costs referred to in paragraph 28, the Department no longer defrays the costs of at-sea monitoring of regular fishing activities by observers in Atlantic Canada. This applies to all of the Department"s administrative regions in Atlantic Canada and affects about 3,000 commercial fishers; |
[11] According to the Supreme Court of Canada in Comeau"s Sea Foods v. Canada, [1997] 1 S.C.R. 12, at page 25, fishing licences are granted at the Minister"s discretion, restricted only by the requirement of natural justice:
| It is my opinion that the Minister"s discretion under s. 7 to authorize the issuance of licences, like the Minister"s discretion to issue licences, is restricted only by the requirement of natural justice, no regulations currently being applicable. The Minister is bound to base his or her decision on relevant considerations, avoid arbitrariness and act in good faith. The result is an administrative scheme based primarily on the discretion of the Minister: see Thomson v. Minister of Fisheries and Oceans , F.C.T.D., No. T-113-84, February 29, 1984. |
[12] In the case at bar, the evidence shows that at the Area 16 snow crab fishing advisory committee meeting on March 18, 1998, fishers were duly notified that the Department would grant licence conditions only after an agreement was entered into with a certified at-sea observer company.
[13] Nowadays, the reign of the welfare state is over. Given the evidence showing that the Department bears the program management costs (about $324,000 per year), the Court is of the view that the Minister"s discretion to issue fishing licences includes the discretion to require fishers to provide written proof of the individual agreement they have entered into with an at-sea observer company before issuing their licence conditions to them. It was therefore not unreasonable, in the case at bar, to require the applicant to provide this proof (condition 6, see note 1) before his licence conditions were issued to him.
[14] As per Easton J. of the Supreme Court of Newfoundland in R. v. Troke, (1995) 131 Nfld. & P.E.I.R. 61, at page 64:
| A reading of the Regulations shows clearly that any costs of complying with these Regulations have to be borne by the "owner or master". And there is no provision made in the Regulations for costs to be either borne by DFO [i.e. Department of Fisheries and Oceans] or to be reimbursed by them. |
| . . . |
| . . . persons who enter the industry must be prepared to pay the costs associated with the exploiting of a public resource. Part and parcel of their right to exploit the resource is the obligation and the responsibility to ensure that they comply with all regulations that have been made relative to that industry. |
[15] With respect to the last argument the applicant put forward"that the setting of licence conditions belongs exclusively to the Minister of Fisheries and Oceans, not the Regional Director"I am of the view that it stands up to analysis no better. The Regional Director-General"s standing request for at-sea observers on board fishing vessels appears consistent with subsection 46(2) of the Regulations:
| 46. . . . (2) The owner or master of a fishing vessel shall, at the request of the Regional Director-General, |
46. [...] (2) Le propriétaire ou le capitaine d"un bateau de pêche doit, à la demande du directeur général régional : |
| (a) permit an observer who is assigned the duties set out in paragraph 39(2)(a) to go on board that vessel to perform those duties and to remain on board for the period of time specified in the request; and |
a) permettre à l"observateur à qui les fonctions visées à l"alinéa 39(2)a ) ont été attribuées de monter à bord du bateau pour y exercer ces fonctions et de rester à bord du bateau pendant la période précisée dans la demande; |
| (b) arrange for the embarkation or disembarkation of the observer at such time and place as is specified in the request. |
b) prendre les dispositions nécessaires pour embarquer ou débarquer l"observateur à la date, l"heure et à l"endroit précisés dans la demande. |
[16] Considering that the Regulations provide that the request for on-board observers comes from the Regional Director-General, the latter has the necessary authority, acting on the Minister"s behalf, to require an agreement with a certified observer company. In addition, that requirement makes it possible to confirm compliance with the Minister"s licence condition with respect to the at-sea observer, prescribed under paragraph 22(1)(n ) of the Regulations.
[17] The application for judicial review is accordingly dismissed.
PIERRE DENAULT
Ottawa, Ontario Judge
May 8, 1998
Certified true translation
Peter Douglas
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: T-949-98
STYLE OF CAUSE: Jean Coulombe v. Attorney General of
Canada
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: October 19, 1999
REASONS FOR ORDER OF Denault J.
DATED: November 17, 1999
APPEARANCES:
Jean Coulombe THE APPLICANT ACTING ON
HIS OWN BEHALF
Rosemarie Millar FOR THE RESPONDENT
SOLICITORS OF RECORD:
Morris Rosenberg
Deputy Attorney General of Canada
Montréal, Quebec FOR THE RESPONDENT
__________________1 6. AT-SEA OBSERVER Upon request by a fishery officer or a local manager of an observer company, an observer must be present aboard your fishing vessel at all times during the fishing trip regarding which the request has been made.