Date: 20001116
Docket: T-159-98
BETWEEN:
OSWAN TUCKER AND TUCKER & SON LTD.
Plaintiffs
- and -
HER MAJESTY THE QUEEN
as represented by the Minister of
Fisheries and Oceans
Defendant
REASONS FOR JUDGMENT
ROTHSTEIN J. (ex officio)
INTRODUCTION
[1] This is an action for damages arising from a decision of the Minister of Fisheries and Oceans requiring Oswan Tucker (the plaintiff) to elect either to utilize an inshore fishing licence for groundfish or an offshore fishing licence for turbot. The plaintiff says that the Minister exercised his discretion under section 7 of the Fisheries Act in a patently unreasonable manner. Alternatively, he says the Minister made a negligent misrepresentation upon which the plaintiff relied to his detriment.
FACTS
[2] On June 15, 1990, the Minister of Fisheries and Oceans issued a press release setting out details of a developmental program designed to encourage the development and exploration of under-utilized groundfish stocks in Atlantic Canada. The program specified that under-utilized species of groundfish included Greenland halibut (turbot) in fishing subarea O and divisions 2GH and 2J3KL, areas quite far north (e.g., subarea O is between Baffin Island and Greenland). Fishing quotas in these areas were not being fully met and the fish there were thought to be larger and more plentiful than in areas further south.
[3] Proposals for entry into the developmental program were called for from holders of groundfish licences, other licensees and new entrants in that order. A further call for proposals was made by a news release dated February 18, 1991.
[4] The plaintiff has been a fisherman all his working life. He has fished under inshore fishing licences (registered vessels up to 65 feet in length) and under offshore fishing licences (registered vessels of 65 feet or more in length). In the late 1980's and early 1990's, the plaintiff was issued inshore fishing licences and had utilized them with vessels under 65 feet in length. He fished for northern cod and crab, but due to a scarcity of fish, the cod fishery closed.
[5] As a result, the plaintiff decided to pursue an opportunity in the developmental program. He had heard about the developmental program initially from other sources and then from the Minister's press releases. The plaintiff was approved under the developmental program for 1991 and received some funding for experimental gear. In 1991, he fished with a 75 foot vessel under the licence of Great Northern Leasing.
[6] In 1992, the plaintiff applied for and obtained his own offshore licence under the developmental program. At the same time, he had an inshore licence for an under 65 foot vessel independent of the program. Although he did not utilize his inshore licence in 1992, he says he was never told he could not use both the offshore and inshore licences at the same time.
[7] In 1993, although he was allowed to do so, the plaintiff did not obtain or utilize an offshore licence. Instead, he fished under an inshore licence with a vessel under 65 feet in length, independently from the developmental program.
[8] In 1994, the developmental program was terminated. However, the announcement of termination was provided late in the season. Because of the late announcement of the termination, fishermen who had previously fished under the developmental program were granted licences to fish for turbot in the previous developmental areas. In 1994, the plaintiff had two licences, an inshore licence for groundfish and an offshore licence for turbot in the previous developmental areas.
[9] In 1995, the plaintiff obtained an offshore licence for turbot in divisions 2GH & J for a vessel of 65 feet or over. Prior to obtaining this licence, he had obtained an inshore licence for a vessel under 65 feet. Six days after the offshore licence was issued, Jim Baird, Chief of Resource Allocation and Licensing for the Department of Fisheries and Oceans in St. John's, wrote to the plaintiff advising him that while he was utilizing a vessel in the 65 foot or over category for turbot, his groundfish licence for a vessel under 65 feet could not be utilized at the same time. Nonetheless, the plaintiff continued to fish utilizing both licences and vessels in 1995.
[10] In 1996, the plaintiff was advised that he would be issued an offshore licence to utilize a vessel of 65 feet or over for turbot in divisions 2GH & J. However, he was told that when utilizing the 65 foot and over vessel, he would have to "bank" any licence he held for a vessel under 65 feet. The plaintiff refused to sign an acknowledgement of this condition. In 1996, no offshore licence was issued to him.
[11] In the years 1997, 1998, 1999 and 2000, the plaintiff fished for turbot utilizing a vessel in excess of 65 feet in divisions 2GH & J. He did not participate in the inshore fishery utilizing a vessel under 65 feet.
[12] It is the condition that the plaintiff only fish under either the offshore or inshore licence but not both at the same time, that gives rise to this action. The plaintiff says that the decision by the Minister requiring him to elect constitutes a patently unreasonable exercise of discretion. Alternatively, he says the Minister negligently represented, through his press releases and actions in 1992, 1993 and 1994, that the plaintiff could utilize both licences at the same time and the plaintiff relied on such misrepresentations to his detriment.
PATENTLY UNREASONABLE EXERCISE OF DISCRETION
Standard of Review
[13] The Minister's exercise of discretion in respect of the issue of fishing licences is pursuant to section 7 of the Fisheries Act. Section 7 provides:
| 7. (1) Subject to subsection (2), the Minister may, in his absolute discretion, wherever the exclusive right of fishing does not already exist by law, issue or authorize to be issued leases and licences for fisheries or fishing, wherever situated or carried on. (2) Except as otherwise provided in this Act, leases or licences for any term exceeding nine years shall be issued only under the authority of the Governor in Council. |
7. (1) En l'absence d'exclusivité du droit de pêche conférée par la loi, le ministre peut, à discrétion, octroyer des baux et permis de pêche ainsi que des licences d'exploitation de pêcheries -- ou en permettre l'octroi --, indépendamment du lieu de l'exploitation ou de l'activité de pêche. (2) Sous réserve des autres dispositions de la présente loi, l'octroi de baux, permis et licences pour un terme supérieur à neuf ans est subordonné à l'autorisation du gouverneur général en conseil. |
The parties agree that the standard of review of the Minister's exercise of this discretion is patent unreasonableness. I also agree. The words of section 7 place no restrictions on the Minister in the exercise of his discretion. Indeed, the provision includes the term "absolute" discretion which I interpret to be a signal of Parliament's intention that the Court should grant significant deference to the Minister. The Minister has expertise with respect to the issuance of fishing licences.
[14] In exercising his duties, the Minister is charged with the management of the fishery and conservation. In Comeau's Sea Foods Ltd. v. Canada (Minister of Fisheries and Oceans), [1997] 1 S.C.R. 12, at para. 37, Major J. stated:
| This interpretation of the breadth of the Minister's discretion is consonant with the overall policy of the Fisheries Act. Canada's fisheries are a "common property resource", belonging to all the people of Canada. Under the Fisheries Act, it is the Minister's duty to manage, conserve and develop the fishery on behalf of Canadians in the public interest (s. 43). Licensing is a tool in the arsenal of powers available to the Minister under the Fisheries Act to manage fisheries. It restricts the entry into the commercial fishery, it limits the numbers of fishermen, vessels, gear and other aspects of commercial fishery. |
These are polycentric considerations requiring the Minister to take a wide variety of interests into account, as opposed to ones in which the government is the singular antagonist of the individual.
[15] Finally, the decision to issue a fishing licence is not one of precedential importance.
[16] All these considerations indicate that the standard of review of the exercise of the Minister's discretion under section 7 of the Fisheries Act is patent unreasonableness.
Is The Exercise Of Discretion Patently Unreasonable?
[17] The policy of the Fisheries Act and the considerations that are relevant to the exercise of the Minister's discretion under section 7 of the Act are those set forth by Major J. in Comeau above. Specifically, under the Fisheries Act, it is the duty of the Minister to manage the fisheries. Licensing to restrict entry into the commercial fishery and to limit the number of fishermen and vessels is an instrument or device available to the Minister to carry out such management.
[18] Considering that it is the duty of the Minister to manage the fisheries and that licensing is a recognized management instrument, the question is whether it is patently unreasonable for the Minister to require that the plaintiff utilize either an inshore licence or offshore licence but not both at the same time. It was explained in evidence that a policy to which the Minister's management of the fishery is directed is to discourage concentration in the industry and that such policy was developed in consultation with participants in the industry. One might argue, as the plaintiff has here, that allowing him to utilize both an inshore and offshore licence at the same time will not increase concentration in the industry in any material way. However, it is not for the Court to judge the wisdom of the anti-concentration policy or whether a less restrictive licensing approach might still be consistent with the policy. Limiting concentration certainly falls within the ambit of the management of the fishery and restricting licences is a means of achieving that objective. Having regard to the Minister's duty to manage the fishery and the unlimited breadth of his section 7 discretion in respect of licensing, there is nothing patently unreasonable about the Minister refusing the plaintiff the opportunity to utilize both an inshore and offshore licence at the same time.
[19] The plaintiff sought to rely on the wording of the Minister's "single species" and "fleet separation" policies to demonstrate that restricting him from utilizing an inshore and offshore licence at the same time was not consistent with those policies. These policies are included in the Commercial Fisheries Licensing Policy for Eastern Canada issued by the Department of Fisheries and Oceans. It is not necessary to analyze the policies in detail. As defendant's counsel pointed out, they are policies, not law, and to elevate them to the level of law would fetter the Minister in the exercise of his discretion under section 7. In Maple Lodge Farms Limited v. Government of Canada, [1982] 2 S.C.R. 2, McIntyre J. stated at pages 6-7:
| The discretion is given by the Statute and the formulation and adoption of general policy guidelines cannot confine it. There is nothing improper or unlawful for the Minister charged with responsibility for the administration of the general scheme provided for in the Act and Regulations to formulate and to state general requirements for the granting of import permits. It will be helpful to applicants for permits to know in general terms what the policy and practice of the Minister will be. To give the guidelines the effect contended for by the appellant would be to elevate ministerial directions to the level of law and fetter the Minister in the exercise of his discretion. |
The Commercial Fisheries Licensing Policy for Eastern Canada may assist fishermen to know, in general terms, the policies of the Department of Fisheries and Oceans in respect of licensing. However, the Policy cannot fetter the Minister's discretion under section 7.
[20] In any event, I am satisfied from the evidence that the Minister, in refusing to allow the utilization of both inshore and offshore licences at the same time by the plaintiff, was not exercising his discretion contrary to the single species or fleet separation policies as they have been interpreted in the past and as they are understood by those in the industry. Indeed, the evidence is that for Newfoundland, there are some 8,000 inshore licences and only about 15 offshore licences, that inshore licences are issued only to owner-operators and that no licensees (other than the plaintiff) hold both inshore and offshore licences.
[21] The plaintiff seems to argue that by reason of past practice, in 1992, 1993 and 1994, when he was not prohibited from utilizing both an inshore and offshore licence at the same time, his right to utilize both at the same time is now grandfathered. Jim Baird testified that during the period of the developmental program, the plaintiff was indeed permitted to utilize both inshore and offshore licences at the same time. However, this practice did not set any precedent or obligation on the Minister to permit utilization of both licences at the same time indefinitely into the future. Section 10 of the Fisheries (General) Regulations SOR/93-53, February 4, 1993, provides:
| 10. Unless otherwise specified in a document, a document expires (a) where it is issued for a calendar year, on December 31 of the year for which it is issued; or (b) where it is issued for a fiscal year, on March 31 of the year for which it is issued. |
10. Sauf indication contraire dans le document, celui-ci expire à l'une des dates suivantes : a) le 31 décembre de l'année pour laquelle il a été délivré, s'il est délivré pour une année civile; b) le 31 mars de l'année pour laquelle il a été délivré, s'il est délivré pour un exercice. |
There was no time specified in any licence issued to the plaintiff and all licences were issued for calendar years.
[22] There is no vested right in a licence. At paragraph 43 of Comeau, Major J. stated:
| The power to issue the licence, once exercised in any single instance, is expended and may only be revised or revoked under the specific statutory conditions in s. 9. However, the power to authorize is a continuing power within the meaning of s. 31(3) of the Interpretation Act. I do not think that the authorization to issue the licence conferred upon the appellant an irrevocable legal right to a licence. Until the licence is issued, there is no licence and therefore no permission to do what is otherwise prohibited, namely fish for lobster in the offshore. Unless and until the licence is actually issued, the Minister in furtherance of government policy may reevaluate or reconsider his initial decision to authorize the licence. Until the Minister actually issued the licence, he possessed a continuing power to reconsider his earlier decision to authorize and or issue the licence: Reference re Maritime Freight Rates Act, [1933] S.C.R. 423. |
The plaintiff was issued annual fishing licences. At the end of each calendar year, they expired. The Minister was not under an obligation, because a previous licence had been issued, to reissue the same licence the following year or permit the utilization of inshore and offshore licences at the same time because this had been permitted in a prior year.
[23] The plaintiff relies on Matthews v. Canada (Attorney General), [1997] 1 F.C. 206, affd. 242 N.R. 181, leave to appeal to Supreme Court of Canada refused (2000), 255 N.R. 398. In Matthews, it was determined that the discretion respecting licensing under section 7 of the Fisheries Act did not include imposing sanctions for an individual's past behaviour. Like in Matthews, the plaintiff here argues that the Minister was not acting within the ambit of the discretion afforded to him under section 7 since, in his submission, the Minister's decision was not related to the management of the fishery. Matthews is simply inapplicable to the case at bar. As is found in paragraph 18, the Minister in the circumstances here was acting in pursuance of the management of the fishery and the decision he made was within the discretion vested in him under section 7.
Negligent Misrepresentation
[24] The plaintiff's alternative argument is based on negligent misrepresentation. There are numerous problems with this cause of action. The plaintiff has not demonstrated a duty of care based on a special relationship between the Minister and the plaintiff. Nor has he shown that the Minister acted negligently in making the representation or that he relied to his detriment on anything the Minister said, in press releases, contracts, or in any other manner. The plaintiff simply wants the Minister to be bound to permit him to utilize both inshore and offshore licences at the same time because at some time in the past, in conjunction with the offshore developmental program, the Minister allowed this to occur. However, as indicated, the elements necessary to prove negligent misrepresentation are not present. In oral argument, plaintiff's counsel sought to characterize the cause of action as one of estoppel. Even if it is characterized in that manner, there is still no evidence of reliance by the plaintiff to his detriment on anything said or done by the Minister.
DISPOSITION
[25] The plaintiffs' claim is dismissed with costs.
"Marshall Rothstein"
JUDGE