Nothing fishy here: Federal Court dismisses application for judicial review in PIIFCAF case

Jennifer Taylor

Introduction

Kirby Elson had been fishing in Newfoundland and Labrador for about 50 years when the policy on Preserving the Independence of the Inshore Fleet in Canada’s Atlantic Fisheries (“PIIFCAF”) was introduced in 2007. Concerned it would cause him to lose his fishing enterprise, he sought an exemption from complying with PIIFCAF. After various procedural steps, the matter ended up in Federal Court as an application for judicial review of Fisheries Minister Hunter Tootoo’s December 2015 decision that the Applicant’s exemption request should be denied (accepting a recommendation of the Fisheries Licence Appeal Board).

In an 86-page decision reported as Elson v Canada (Attorney General), 2017 FC 459, Justice Strickland has dismissed the application and upheld the Minister’s denial. This means the Applicant no longer has valid fishing licences.

Not only is this decision important for the fishing industry in Atlantic Canada, but it also takes a broader look at the extent of, and limits on, the Minister’s discretion over fishing licences under section 7 of the Fisheries Act.

PIIFCAF and controlling agreements

PIIFCAF was intended “to reaffirm the importance of maintaining an independent and economically viable inshore fleet; strengthen the application of the Owner-Operator and Fleet Separation Policies; ensure that the benefits of fishing licences flow to the fish harvester and the coastal community; and, assist fish harvesters to retain control of their fishing enterprises.”1

As a result of PIIFCAF, an Atlantic fish harvester would only be eligible for a new or replacement licence if they were not party to a “controlling agreement.” A controlling agreement is a form of trust agreement that lets someone other than the licence holder (say, a fish processing company) make decisions about licence transfers.

The Applicant had been in a controlling agreement with Labrador Sea Products Inc. and Quinlan Brothers Limited since 2003. In 2007, PIIFCAF gave licence holders in controlling agreements seven years to comply. At the end of 2014, the Applicant was still in his controlling agreement. As mentioned, he unsuccessfully tried to seek an exemption from PIIFCAF so he could remain in the controlling agreement arrangement.

The Minister’s exercise of discretion

The legal issues on judicial review were whether the Minister (1) based his decision on irrelevant factors; (2) fettered (improperly limited) his discretion; or (3) had a closed mind when considering the Applicant’s request for an exemption.

(1) Irrelevant factors?

The Applicant argued that PIIFCAF was an irrelevant consideration because, he said, the policy itself was actually unconstitutional. The Applicant framed PIIFCAF’s requirement for fish harvesters to get out of controlling agreements as an improper interference with the provincial power over the regulation of contracts.

Justice Strickland disagreed, finding that the Minister had the discretion to “consider social, cultural or economic goals or policies when deciding whether or not to issue fishing licences”2 as part of the federal power over fisheries. PIIFCAF, she found, was meant to achieve these kinds of objectives in Atlantic Canada.

As Justice Strickland explained: “the Minister had determined that controlling agreements, which were devised to defeat the existing licencing policies, resulted in negative socio-economic consequences for coastal communities.3

Furthermore, Justice Strickland noted that PIIFCAF, as a policy and not legislation or a regulation, could not actually “be subject to a division of powers challenge.”4 (There was no constitutional challenge to section 7 of the Fisheries Act, which grants the Minister extremely broad discretion over fishing licences and related issues.)

Justice Strickland found PIIFCAF “does not frustrate contracts”; licence holders still have wide contractual freedom: “it does not prevent licence holders from entering into contracts, obtaining financing, using their licence as collateral, supplying their catch to whomever they wish or otherwise organizing their business affairs as they see fit.”5

(2) Fettered discretion?

The mandatory nature of PIIFCAF, and the absence of exemptions for individual harvesters, did not fetter the Minister’s discretion, according to Justice Strickland. The Applicant had the opportunity to seek an individual exemption from the Minister, through correspondence with DFO and through the Appeal Board process. But although the Applicant’s position was that a controlling agreement was the only way he could afford to keep fishing, he had not submitted any supporting financial or other evidence during that process.

This was not the end of Justice Strickland’s analysis, however. She ended up finding that the Minister had fettered his discretion after all.

In particular, she found a flaw in the Minister’s decision letter from December 2015 indicating that he’d improperly limited his discretion by concentrating on PIIFCAF and not explicitly relying on the Fisheries Act as a source of his decision-making authority: “the Minister’s decision letter failed to acknowledge the source and breadth of his broad discretion under section 7 of the Fisheries Act, referring only to the PIIFCAF Policy. He thereby fettered his discretion by not also considering that it was open to him to afford the relief sought other than by way of the PIIFCAF Policy and the appeal process.”6

(3) Closed mind?

Despite her conclusion that the Minister fettered his discretion, Justice Strickland found that the Applicant had not met the stricter test to show that the “Minister’s mind was closed”;7 the Minister had not prejudged the issue before it came to him, even though he decided against the Applicant.

Remedy

Justice Strickland relied on a Federal Court of Appeal decision holding that a “decision that is the product of a fettered discretion must per se be unreasonable.”8 Importantly, however, that did not automatically result in a remedy for Mr. Elson. This is because of Justice Strickland’s finding that the available remedy—returning the matter to the Minister—would not have made any difference to the result.

The Applicant did not meet the requirements of PIIFCAF, and the Minister would still have the discretion to deny him an exemption, so Justice Strickland decided there was no point in sending it back.

This decision could yet be appealed.

In the meantime, PIIFCAF continues to apply – and continues to prevent Mr. Elson from fishing his licences if he remains party to a controlling agreement.

This update is intended for general information only. If you have questions about how this case may affect you, please contact our fisheries law practitioners Will Moreira, QC, FCIArb and Sadira Jan in Halifax, or Kim Walsh in St. John’s.


1 Paragraph 6.
2 Paragraph 51.
3 Paragraph 72.
4 Paragraph 56.
5 Paragraph 73.
6 Paragraph 135.
7 Paragraph 146.
8 Paragraph 153 (see also paragraph 25).

SHARE

Archive

Search Archive


Generic filters

 
 

Are you compliant with the Canada Elections Act? New changes mean entities ought to be careful in assessing their obligations

September 9, 2019

John Samms The upcoming federal election is drawing near. You may be thinking about exercising your democratic and constitutional right to vote – you may not be. You may never even consider participating in the…

Read More

New occupational health and safety legislation regarding harassment effective in Newfoundland and Labrador January 1, 2020

August 30, 2019

Twila Reid and Kara Harrington On January 1, 2020, changes to the Newfoundland and Labrador Occupational Health and Safety Regulations, 2012 (“Regulations”) will take effect. These changes impact employers in a variety of ways, most…

Read More

Federal employers – significant changes to the Canada Labour Code to come into force September 1, 2019

August 29, 2019

Peter McLellan, QC In the January 18, 2019 article, Change is the only constant – Bill C-86 changes in federal labour and employment regulation, we outlined in detail massive changes to how federal labour and…

Read More

Proposed Workplace Harassment and Violence Prevention Regulations under the Canada Labour Code

August 2, 2019

Rick Dunlop and Madeleine Coats The proposed Workplace Harassment and Violence Prevention Regulations (“Regulations”) will replace the current workplace violence obligations in the Canada Occupational Health and Safety Regulations. Although the Regulations will likely not…

Read More

The Prince Edward Island Labour Relations Board carves out a group of firefighters from an existing bargaining unit

July 31, 2019

Hilary Foster Earlier this year, the Prince Edward Island Labour Relations Board (“Board”) issued a decision¹ wherein it certified the Charlottetown Professional Firefighters Association (“Association”) as bargaining agent for: All employees of the City of…

Read More

The New Brunswick Labour and Employment Board affirms longstanding practice against piecemeal certification of bargaining units

July 8, 2019

Bryan Mills and John Morse On May 21, 2019, the New Brunswick Labour and Employment Board (”Board”) dismissed an application by the New Brunswick Union of Public and Private Employees (“Union”) seeking certification as bargaining…

Read More

Carbon pricing: Ontario Court of Appeal delivers constitutional endorsement

July 5, 2019

Jonathan Coady and Justin Milne The Ontario Court of Appeal has found that the Greenhouse Gas Pollution Pricing Act¹ is valid federal legislation.² The Act implements national minimum pricing standards to reduce greenhouse gas (“GHG”) emissions.…

Read More

A Charter right to testamentary freedom? The NSSC decision in Lawen Estate

July 2, 2019

Richard Niedermayer, TEP, Jennifer Taylor and Bhreagh Ross, summer student There is a right to testamentary freedom under section 7 of the Charter, according to a recent decision of the Nova Scotia Supreme Court. In…

Read More

Hydro-Quebec now subject to annual energy cap, but not a monthly cap, under much-disputed 1969 power contract: Churchill Falls (Labrador) Corp. v Hydro-Quebec, 2019 QCCA 1072

June 24, 2019

John Samms Introduction Much ink has been spilled on the controversial 1969 power contract between Hydro-Quebec and CFLCo (the contract) and last week the Quebec Court of Appeal added to the pile with its decision…

Read More

Final cannabis edibles, topicals and extracts regulations released

June 17, 2019

Kevin Landry On June 14, 2019, Health Canada announced the release of the final version of amendments to the Cannabis Regulations, which will permit for the production and sale of edibles, extracts and topicals. The…

Read More

Search Archive


Generic filters