Federal Court Decisions

Date: 19971121

Docket: T-828-97

     IN THE MATTER OF The Fisheries Act, R.S.C. 1985, c. F-14

BETWEEN:

CANADA PORTS CORPORATION

Applicant

- and -

THE MINISTER OF FISHERIES AND OCEANS,

     ROBERT EASTON (FISHERY OFFICER) and

     THE ATTORNEY GENERAL OF CANADA

Respondents

     REASONS FOR ORDER

JEROME A.C.J.

[1]      This application for judicial review of a decision by the Minister of Fisheries and Oceans ("the Minister") came on for hearing before me at Toronto, Ontario, on July 15, 1997. At the close of oral argument, I ordered that the application be dismissed and indicated that written reasons would follow.

[2]      The applicant applied to the Minister for an authorization for proposed dock operations under s. 35 of the Fisheries Act in November of 1993. Before the Minister had reached a decision, the applicant conducted the dock alterations in late 1994. On February 2, 1995, the applicant was charged with violating s. 35 of the Fisheries Act by conducting the dock alterations without authorization and allegedly destroying the fish habitat. On January 23, 1996, the Minister refused to grant the authorization requested in November 1993.

[3]      On January 16, 1997, the applicant requested that the Minister exercise his discretion to refer the January 23, 1996 decision to an independent body or panel for reconsideration. The Minister refused this request in a letter dated April 1, 1997.

[4]      As a result, the applicant sought a writ of certiorari quashing the decision of the Minister denying the applicant's appeal for an authorization pursuant to s. 35(2) of the Fisheries Act including the Minister's refusal to seek independent review pursuant to the Department of Fisheries and Oceans Policy for the Management of Fish Habitat ("the Policy"). Alternatively, the applicant sought a declaration that the Minister's decision was void.

[5]      The applicant also requested a declaration that the Minister is required to determine the applicant's appeal in a manner which does not give rise to a reasonable apprehension of bias and is in accordance with the principles of natural justice. In particular, the applicant seeks a declaration that the applicant has a legitimate expectation that the Minister will refer the applicant's appeal to independent review prior to a decision and act on that advice.

[6]      Finally, the applicant sought an order prohibiting, restraining or staying the prosecution against the applicant under s. 35(1) of the Fisheries Act until the final decision of the application for judicial review and any consequent final decision of the Minister pursuant to s. 35(2) of the Fisheries Act.

[7]      It appears that the applicant's relief depends on a finding that the Minister acted in a patently unreasonable manner by choosing not to proceed with an independent evaluation. First, the applicant argues that the Policy created a legitimate expectation that an independent evaluation would be performed. The court may find that a legitimate expectation exists when the government, through its officials or policies, makes a promise that it will provide certain procedures (eg. Reference Re Canada Assistance Plan, [1991] 2 S.C.R. 525). The Policy contains the following at section 5.2:

(1)      Should any person feel aggrieved by a habitat-related decision made by departmental staff, that person may at any time request a review of the decision of senior management levels within the Department, including Regional Directors-General, the Deputy Minister or the Ministry of Fisheries and Oceans.

(2)      Should any proponent or interested party feel aggrieved by the decision-making process an appeal may be made to senior management levels within the Department or to the Minister.

(3)      In the event of an unresolved dispute regarding a major development project, the Minister may agree to refer the project to an independent body or panel for study and recommendations.

[8]      It is clear from the word "may" in sub-paragraph (3) that the Minister has the discretion to refer the project for independent review. Thus, unless the Minister has provided the applicant with some indication that an independent review will be forthcoming, the applicant cannot complain. I can find nothing in the evidence which suggested that the Minister had indicated or promised to submit the project to study by an independent review panel. Therefore, I do not see how the applicant could have formed a legitimate expectation that the Minister would refer the project to an independent body. This ground of review must fail.

[9]      On another ground, the applicant submitted that the circumstances surrounding the Minister's decision to dismiss the applicant's appeal raised a reasonable apprehension of bias. To support this claim, the applicant submits that the decision to reject the appeal was influenced by other officials responsible for prosecuting the applicant in the criminal action. The applicant further submits that the Minister considered irrelevant factors, namely, the ongoing criminal prosecution and the belief that authorizations cannot be retroactive. The respondents counter with the argument that since the Minister is charged with other statutory duties, the applicant should realize that the Minister may be less than completely independent and impartial.

[10]      I would respond to the applicant's contention by first noting that the Minister is charged with the enforcement of all of the provisions of the Fisheries Act. It was therefore reasonable for the Minister to consider the criminal prosecution when making the decision whether to grant the applicant's request to submit the project to independent review. Indeed, the limited input of the prosecutor in the process was necessary for the Minister to make an appropriate decision. The Minister should be aware of the effect that such a decision may have on a prosecution initiated by that Minister.

[11]      As to the question of the retroactive effect of an authorization, the answer lies in a careful examination of section 35 of the Fisheries Act. Section 35 states the following:

35. (1) No person shall carry on any work or undertaking that results in the harmful alteration, disruption or destruction of fish habitat.

(2) No person contravenes subsection (1) by causing the alteration, disruption or destruction of fish habitat by any means or under any conditions authorized by the Minister or under regulations made by the Governor in Council under this Act.

[12]      Subsection 35(2) shows that a person will contravene subsection (1) by causing the alteration, disruption or destruction of fish habitat unless that person has been authorized by the Minister. The use of the word "authorized" indicates that, in order to avoid violating subsection (1), the work or undertaking must have already been authorized at the time it was performed. The statute does not say "authorize" or "will be authorized" or "may be authorized" which might suggest that a future authorization will suffice. Thus, I believe that under any reasonable interpretation of the statutory provision, the authorization must have already occurred in order for one to avail oneself of the protection afforded by section 35(2).

[13]      The applicant also submitted that the Minister did not give the applicant an opportunity to respond to all concerns. However, it is clear that the applicant and the Minister were corresponding with each other on a regular basis throughout this whole process. Surely the applicant must have had more than enough opportunity to present its case throughout that period. If the applicant had failed to submit important evidence during that time, the applicant must accept the outcome.

[14]      Finally, I note that the applicant submitted its appeal to the Minister on January 16, 1997 which is almost one year after the Minister denied authorization to the applicant. The applicant could provide no reasonable justification for this delay. Thus, even if the applicant's arguments did have merit, I would still find that it is much too late to complain about the refusal to refer the project to independent study.

[15]      For the reasons outlined above, this application for judicial review is dismissed. It follows that the request to stay or prohibit the ongoing criminal proceedings is also denied. No order as to costs.

                         "James A. Jerome"                          A.C.J.

OTTAWA, ONTARIO

November 21, 1997