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
Filter by Custom Post Type

 
 

Client Update: Not a “token gesture”: Nova Scotia Court of Appeal confirms deductibility of future CPP disability benefits from tort damages

January 18, 2019

Jennifer Taylor In an important decision for the auto insurance industry, the Nova Scotia Court of Appeal has confirmed that future CPP disability benefits are indeed deductible from damages awarded in Nova Scotia cases for…

Read More

Client Update: Change is the only constant – Bill C-86 changes in federal labour and employment regulation

January 18, 2019

Brian Johnston, QC and Matthew Jacobs Bill C-86, enacted as SC 2018, c. 27, will effect massive changes upon how federal labour and employment relations are regulated. They come into effect in 2019 with staggered…

Read More

2018 Year in Review: Atlantic Canada Labour & Employment Law Developments

January 17, 2019

We can all make 2019 a success by building on the year that was. For employers, 2018 was a year of many notable developments in labour and employment law across the country. We saw Ontario…

Read More

Client Update: Atlantic Canada pension and benefits countdown to 2019

December 28, 2018

Level Chan and Dante Manna As 2018 comes to an end, we countdown some pension and employee benefits developments in the last year that we anticipate may lead to developments in 2019. Discrimination in benefits…

Read More

Client Update: Canada’s Proposed Cannabis Edibles, Extracts and Topicals Regulations Revealed

December 21, 2018

Kevin Landry The first look at regulations for cannabis edibles, extracts and topicals has arrived. The Federal Government has opened a 60-day consultation period respecting the strict regulation of additional cannabis products. Notice of the consultation was accompanied…

Read More

Client Update: Recent Supreme Court of Nova Scotia decision drives home the importance of credibility

December 20, 2018

Erin Best and Kara Harrington “This case is about pain, how it was caused, by what accident and the opinions of dueling experts.”¹ “In this case, like so many, the assessment of the evidence depends…

Read More

Client Update: Land use planning in Prince Edward Island: the year in review

December 20, 2018

Jonathan Coady and Michael Fleischmann Overview Once again, the time has come to review the year that was and to chart the course for the year ahead. For municipalities, developers and planning professionals throughout Prince…

Read More

Client Update: Nova Scotia Labour Standard Code changes – domestic violence leave & pregnancy / parental eligibility

December 14, 2018

Following the various Stakeholder Consultations (which Stewart McKelvey participated in on behalf of Nova Scotia Employers), the Government has changed the Labour Standards Code Regulations effective January 1, 2019 to: a) provide for up to…

Read More

Client Update: Coming to Canada? You may need biometrics / Mise à Jour : Vous pensez bientôt venir au Canada? Vous pourriez avoir besoin de fournir vos données biométriques

December 6, 2018

Version française à suivre Sara Espinal Henao Canada has expanded its permanent and temporary immigration requirements to include biometrics – the measurement of unique physical characteristics, such as fingerprints and facial features. The new requirements,…

Read More

Proposed Changes to IP Law: Will they impact your business?

December 3, 2018

Many businesses rely on trade-mark, copyright, and patent law for the protection of their intellectual property (IP). The Federal Government recently proposed changes to IP laws, which may impact your business. Bill C-86, Budget Implementation Act,…

Read More

Search Archive


Generic filters
Filter by Custom Post Type