BETWEEN:
and
GEOFF REGAN, MINISTER OF FISHERIES
AND OCEANS CANADA, FISHERIES AND OCEANS CANADA
and AZULEMAR FISHING LTD.
REASONS FOR ORDER
[1] Randy Barnard is a fisherman who feels that the manner in which he and his boat were ranked by the Respondent Minister for Canadian tuna fishing licences in U.S. waters was improper. He missed the 30-day period for filing a judicial review of the Respondent Minister's decision regarding this ranking. He is seeking an extension of time to file his judicial review from October 13 to November 4, 2005. He denies that there is any prejudice to either of the Respondents.
BACKGROUND
[2] The Respondent Minister refused Barnard's application to amend the Albacore tuna fishing history of his current boat PRINCE OF DENMARK to take into account the fishing history of his previous vessel, the OLD SPICE.
[3] The effect of this decision was to adjust his ranking from 90th to 97th in a system where only the top 94 boats may be permitted under a Canada-U.S. treaty to fish tuna in U.S. waters in 2007. The adjustment in ranking does not affect Barnard in respect of Canadian waters and only affects him in U.S. waters if the treaty is not renegotiated and in any event, only after this current year.
[4] Barnard has had a most unfortunate history apparently through no fault of his own. He is a long-time tuna fisherman. His first boat OLD SPICE burned in a fire at Tofino, British Columbia. The fire started in another vessel tied alongside and spread to OLD SPICE. He replaced that boat with the PRINCE OF DENMARK.
[5] In 2004 Fisheries and Oceans Canada ("DFO") gave notice that, because the U.S. was reducing, over three years, the number of Canadian boats permitted to fish tuna (as the U.S. apparently was entitled to do under the expiring fishing treaty), DFO would likely use past tuna catch history to establish ranking and manage the reduction in licences. The catch history "would follow the vessel", not the fisherman.
[6] Barnard therefore requested that DFO include the OLD SPICE's catch history in its consideration of the PRINCE OF DENMARK's catch history. This request was denied.
[7] The Minister had set up an industry-based committee - the Albacore Tuna Review Committee - to advise the Minister on how to manage the changes precipitated by the U.S. position on the reduction in licences Canada could issue to fish in U.S. waters. One of its functions was to handle any appeals from DFO decisions on the basis that "extenuating circumstances" existed and to make recommendations to the Minister for the disposition of those appeals.
[8] Barnard appealed the DFO decision to the Committee. The Committee recommended no change in the calculation of the fishing history of the PRINCE OF DENMARK. The Committee's recommendation outlined the basis of Barnard's appeal. It reported - and this is the major point in Barnard's proposed judicial review -
"He is requesting the history of the M/V Old Spice be attributed to the landings history of the M/V "Prince of Denmark", so that the vessel has a higher total fishing history in USA waters.
The Committee considered the circumstances of this appeal and determined that an exception to DFO policy that the history follows the vessel was not warranted."
[9] The Minister's decision of September 1, 2005 referred to Barnard's written appeal and said:
"... the Minister concluded that an amendment to the vessel fishing history of the M/V Prince of Denmark was not warranted. Your request to combine vessel fishing history from two vessels would be contrary to current Fisheries and Oceans Canada policies and management objectives."
[10] While the decision was sent September 1, 2005, Barnard was at sea and did not receive it until September 13, 2005. He then engaged counsel and a period of time passed where Barnard and counsel were in touch with DFO officials but no judicial review was filed until November 4, 2005.
[11] As a result of the calculation by DFO of vessel catch histories, Azulemar Fishing Ltd. (owned by Gordon Brooks), the owner of the vessel MOONDANCER, was ranked 94th and therefore is the last vessel to be licensed for U.S. tuna fishing.
[12] On October 25, 2005, the MOONDANCER was put in for refit to make the vessel more suitable for tuna fishing. This was a long planned for refit and there is no evidence that Azulemar relied on the absence of a judicial review before proceeding for refit. However, it was argued that the B.C. tuna fishing industry is small and that through radio traffic and "scuttlebutt", fishermen generally knew who was doing what and hence who would likely have appealed a decision concerning tuna licences.
[13] Azulemar says that it would be prejudiced by an extension of time in that it exposes its investment and ranking to risk, at best, from the uncertainty of pending proceedings. It says that it was entitled to rely on the Minister's decision, its own ranking and the fact that it was not served with notice of these proceedings or of the possible judicial review until December 23, 2005.
ANALYSIS
[14] The decision on whether to grant an extension of time for late filing of a judicial review is one of the exercise of this Court's discretion. As Justice Hugessen (when he was on the Federal Court of Appeal) said, in Council of Canadians v. Canada(Director of Investigation and Research, Competition Act), [1997] F.C.J. No. 408:
There is no immutable check list of matters that must be reviewed whenever the grant of an extension of time is being considered; the most that can be said is that the Court will generally look at whether there is an adequate explanation for the failure to act timely and whether the applicant has an arguable case.
[15] I would add to that non-exhaustive list such factors as the period of delay, the intent to bring judicial review proceedings, and the prejudice not only to the Applicant but to third parties and the public.
[16] The Applicant's principal complaint is that he believes that both the Committee and the Minister misunderstood his appeal. He believes that they thought that he wanted to combine the catch histories of both vessels over the qualifying period 1995-2002 - a form of double counting since the OLD SPICE was only destroyed in 2001. He said that all he wanted was for the OLD SPICE catch history to be considered the PRINCE OF DENMARK's catch history for 1995-2001.
[17] Having reviewed the materials on file, I cannot see that either the Committee or the Minister laboured under this misunderstanding. The proposition of double counting is so unreasonable and unfair that it could not have been considered as Barnard's position - absent some real evidence to show that that was in fact the Minister's and the Committee's understanding. Therefore, in my view, the Applicant does not have an arguable case on this critical issue.
[18] My view is reinforced somewhat by the Applicant's and his counsel's own conduct. Following the decision, both of them, but principally counsel, spent time trying to find out what happened at DFO and what real loss the Applicant had suffered. All of this, they say, was necessary for them to determine whether to seek judicial review.
[19] There is nothing in what they discovered over the time period that gives credence to the basis for the judicial review. If such a misunderstanding existed or could be inferred, the information was in front of them on the face of the decision itself. It is noted that the decision refers to the request as one which seeks to "combine fishing history from two vessels" - not combining fishing histories of two vessels as the Applicant says the Minister understood his request to be. (Underlining by Court)
[20] The decision clearly states that the decision was based on policy and management objectives - factors known to the Applicant since 2004.
[21] It is a simple act to file a judicial review notice immediately if those grounds really existed. In my view, the Applicant spent the time looking for a "cause of action" and when nothing further came to light, they relied (no doubt in good faith) on this argument of misunderstanding.
[22] It is clear from the evidence that the Applicant did not form the intention to seek judicial review until three weeks after the due date. It is settled law that it is an inadequate explanation for delay if the delay is due to efforts to determine what was behind an impugned decision and determining what remedies to take. (See Westinghouse Canada Inc. v. Canada (Canadian International Trade Tribunal), [1989] F.C.J. No. 540, (1989), 104 N.R. 191.) This is precisely what the Applicant was doing.
[23] I should add that the decision at issue is in reality a decision not to vary a policy. As such, it is not one for which judicial review is readily available. (See Skycharter Ltd. v. Canada(Minister of Transport)(1997), 125 F.T.R. 307.) For all of these reasons, I am not convinced that the Applicant has an arguable case.
[24] Even if there is some basis for contending that there is an arguable case, other factors also weigh against the Applicant. While the delay itself is not long - approximately three weeks - and should favour the Applicant, the delay is extensive as regards the other Respondent Azulemar and does result in prejudice. There is the prejudice to the public in that there is a public interest in finality of decisions and the 30-day rule is an important part of that finality. (See Grenier v. Canada, 2005 FCA 348.)
[25] There is a clear prejudice to Azulemar - the 94th licensee. The DFO system is a "zero sum" game in which the success of the 97th licensee is to the detriment of the current 94th. There is also the fact that the MOONDANCER was refitted for purposes of the tuna fishery, a process which was ongoing during the delay prior to service on December 23, 2005. Therefore, there is real prejudice to Azulemar in terms of loss of potential profit and the expenditure for at least a portion of the refit. That prejudice was compounded, if not created, by the Applicant's failure to serve this third party in a timely manner.
[26] In these circumstances, while the Applicant may suffer some prejudice, it is a prejudice of its own making.
[27] Taking all of these factors into consideration, the Court will not grant this motion for extension of time.
[28] This motion is dismissed with costs to both the Respondent Minister and Azulemar.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1999-05
STYLE OF CAUSE: Randy Barnard
and
Geoff Regan, Minister of Fishers and Oceans Canada
et al
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: January 23 & 24, 2006
REASONS FOR : The Honourable Mr. Justice Phelan
APPEARANCES:
| Mr. Andrew P. Mayer
|
|
| Mr. R.S. Whittaker Mr. Paul Partridge
|
Minister of Fisheries and Oceans Canada
|
| Mr. Brad Caldwell |
FOR THE RESPONDENT Azulemar Fishing Ltd. |
SOLICITORS OF RECORD:
| BERNARD & PARTNERS Barristers & Solicitors Vancouver, B.C.
|
|
| JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Vancouver, British Columbia
|
Minister of Fisheries and Oceans Canada |
| CALDWELL & CO. Barristers & Solicitors Vancouver, B.C. |
FOR THE RESPONDENT Azulemar Fishing Ltd.
|