Date: 20021113
Docket: T-1986-01
Neutral citation: 2002 FCT 1174
BETWEEN:
BRIAN KEATING
Applicant
and
THE MINISTER OF FISHERIES AND OCEANS 1
Respondent
INTRODUCTION
[1] Mr. Brian Keating (the "Applicant") seeks judicial review of the decision of Mr. Herb Dhaliwal, Minister of Fisheries and Oceans (the "Respondent") dated October 9, 2001. In his decision, the Respondent rejected the Applicant's request for reinstatement of his supplementary crab licence.
BACKGROUND
[2] This application arises from the decision of the Respondent to deny the Applicant's request for reinstatement of his supplementary crab licence, following a positive recommendation from the Atlantic Fisheries Licence Appeal Board (the "Appeal Board") that his licence should be reinstated.
[3] The Applicant is a fisherman in Newfoundland and Labrador. Prior to April 1990, he had an enterprise that included a groundfish licence for a 38 foot vessel, as well as a supplementary crab licence, No. NF-40715, for the same vessel. Although this vessel was registered in the Applicant's name, it was actually owned by his brother-in-law, William Morris.
[4] In April 1990, Mr. Morris sold the vessel to David Lear. The Applicant signed several documents to complete the transaction, at the request of both Mr. Morris and Mr. Lear. The Applicant is illiterate and claims that he unknowingly and unintentionally transferred his groundfish licence to Mr. Lear at this time. The Applicant was not aware that he had transferred his groundfish licence until Mr. Lear mentioned this in conversation, some time in 1998.
[5] In 1998, the Applicant heard about an internal appeal process concerning denial of licences. The Department of Fisheries and Oceans (the "Department"), however, refused to allow the Applicant to appeal the alleged surrender of the crab licence on the grounds that he had not commenced his appeal within the three year limitation set out in the Commercial Fisheries Licensing Policy for Eastern Canada, 1996 (the "Licensing Policy"). According to chapter 7, section 34(1) any such appeal had to be commenced within three years of the denial of the licence. Further, the Department took the position that as of March 1993, supplementary crab licences were no longer being issued.
[6] The Applicant filed an application for judicial review against this decision, being case number T-2348-00. Subsequently, the Respondent referred the Applicant's request for an appeal to the Appeal Board, pursuant to section 35(8) of the Licensing Policy.
THE APPEAL BOARD HEARING AND REPORT
[7] On May 24, 2001, the Appeal Board heard the Applicant's appeal for the reinstatement of his supplementary crab licence. The Appeal Board subsequently made a report to the Respondent. The report consisted of a summary of the submissions made by both the Applicant and the Department, followed by the Appeal Board's recommendation.
[8] The Applicant and his brother, Gary Keating, testified before the Board. The Applicant was represented by a lawyer. In the report prepared by the Appeal Board following the hearing, the Board found that if the groundfish licence had not been transferred with the vessel in 1990, the Applicant would have qualified to maintain his groundfish licence for a period of two years. Within that time he would have had to replace the vessel.
[9] At the hearing, Mr. Robin Smith spoke on behalf of the Department and he began his submissions by stating that prior to April 1990, the Applicant held an enterprise that included a 39 foot vessel, CFV129391, a groundfish fixed year licence for a vessel greater than 35 feet length overall and a supplementary crab licence. In April 1990, Mr. Smith contended that the Applicant acquired a new groundfish licence for a vessel less than 35 feet, as new groundfish licences were available to full time fishers. According to Mr. Smith, acquisition of this licence resulted in forfeiture of the Applicant's eligibility to hold a supplementary crab licence since those licences were available to fishers who held a groundfish licence and a vessel eligibility greater than 35 feet.
[10] Supplementary crab licences were available to fishers operating vessels in the 35 foot to 65 foot capacity up to March 3, 1993. After that time, the crab fishery became a limited entry fishery.
[11] According to the Appeal Board, Mr. Smith "felt" that the Applicant requested a re-issuance of his greater than 35 foot fishing enterprise in 1990 and as a result, he became ineligible to hold a supplementary crab licence since he did not meet the policy requirement. Mr. Smith apparently said it was difficult to confirm what details were communicated to the Applicant at the time the licence was transferred and that the reinstatement of the crab licence did not become an issue until 1998.
[12] Mr. Smith took the position that the Applicant was treated fairly by the Department and in accordance with the Licensing Policy but, unfortunately, he was not eligible to hold a supplementary crab licence pursuant to that policy.
[13] Presentations were also made on behalf of the Applicant. The report prepared by the Appeal Board indicates that the presentation on behalf of the Applicant began with inquires from his legal counsel concerning the circumstances in which a new groundfish licence was issued to the Applicant on August 29, 1991 when he had not requested the issuance of such a licence and no request for a new licence was on file. According to the report of the Appeal Board, the licence was issued to the Applicant because of a prior commitment to do so.
[14] Mr. Gary Keating advised the Appeal Board that when his brother, the Applicant, participated in the sale of the 35 foot vessel he thought he still maintained the groundfish licence for a vessel greater than 35 feet in length.
[15] Ms. Patricia Carpenter, the lawyer representing the Applicant before the Appeal Board, presented the Appeal Board with letters submitted by the Applicant to the Department of Fisheries and Oceans on February 9, 1999, April 20, 1999, July 12, 1999 and January 14, 2000.
[16] On behalf of the Applicant, Ms. Carpenter advised the Appeal Board that her client had left school in the fourth grade. He was able to sign his name but otherwise relied upon his brother to read his mail and to advise him when to sign cheques.
[17] Ms. Carpenter advised the Appeal Board that prior to April 1990, the Applicant operated two vessels, an 18 foot vessel and a 38 foot vessel. His groundfish and supplementary crab licences were held on the 38 foot vessel. However, this vessel was owned by his brother-in-law, William Morris and in 1990 Mr. Morris sold the vessel to a Mr. David Lear. Since the vessel was registered in the name of the Applicant, he was required to sign various documents to give effect to the sale and signed the documents placed before him. No one advised him that he was transferring his groundfish licence.
[18] According to Ms. Carpenter, Mr. Lear believed that the groundfish licence was part of the sale of the vessel but Mr. Keating, the Applicant, never intended to transfer the groundfish licence to Mr. Lear.
[19] In 1991, the Applicant's licence was due for renewal. According to the notes maintained by the Appeal Board, the Applicant believed that he still held the licence which had been transferred to Mr. Lear but he could not use it because he no longer had a vessel which was larger than 35 feet.
[20] Counsel for the Applicant further advised the Appeal Board that her client believed that if he kept his supplementary crab licence and did not use it, the licence would be revoked. Therefore, he wrote a letter to the Department of Fisheries and Oceans, over his signature, explaining that he could not fish on the supplementary crab licence at that time but intended to do so as soon as he could buy another boat. According to the report of the Appeal Board, the Applicant thought that this letter would protect him against revocation of his supplementary crab licence. He never intended to surrender the licence on a permanent basis.
[21] Counsel for the Applicant advised the Appeal Board that her client made numerous attempts to appeal the reinstatement of his supplementary crab licence. She said that one of the reasons why his requests were denied was that he was outside the three year limitation period for commencing the appeal. She advised that her client attempted to have his case reviewed in 1993 and was told that an appeal was not possible due to the limitation period in the Licensing Policy.
[22] Counsel for the Applicant further advised the Appeal Board that her client lost the reinstatement of his supplementary crab licence when he transferred his groundfish licence to David Lear in 1990. Her client did not become aware of the transfer of the licence until Mr. Lear spoke about this in a conversation in 1998.
[23] Before the Appeal Board, the Applicant sought reinstatement of his supplementary crab licence on the basis of extenuating circumstances. His lawyer argued that he had demonstrated financial commitments to the industry and that he had purchased a new vessel with the understanding that he still held a groundfish licence for a greater than 35 foot vessel, and a supplementary crab licence.
[24] Ms. Carpenter, on behalf of the Applicant, requested the Appeal Board to reinstate the supplementary crab licence or to issue a new licence under the Policies and Guidelines which existed prior to March 1993.
[25] An Appeal Board member asked if the Applicant would have been able to bank his groundfish licence if it had not been transferred with the boat in 1990. She was advised by Mr. Tom Perry that if the licence had not been transferred with the vessel, the Applicant could have maintained it and replaced his vessel within two years.
[26] Ms. Dwyer, a member of the Appeal Board, then sought confirmation from the Applicant that he had indeed fished for groundfish after April 1990. The Appeal Board sought this information to confirm the Applicant's belief that he still held his groundfish licence.
[27] On May 25, 2001 and May 30, 2001, the Applicant provided copies of purchase slips to the Appeal Board, to demonstrate that he had sold cod in 1990 and again in 1991.
[28] On June 15, 2001, the Board held a conference call to review the new evidence submitted by the Applicant and recommended that his appeal be allowed, to the effect that his supplementary crab licence be reinstated and that he be eligible to register a vessel up to 44 feet 11 inches, 6000 cubic feet. The Board recommended that the supplementary crab licence will not be eligible for reissuance at any time in the future.
[29] According to its report to the Respondent, the Appeal Board concluded, after reviewing the file and the new evidence submitted by the Applicant, that he had demonstrated participation in the fishing industry in 1990 and 1991. This participation confirmed his belief that he still held the groundfish licence.
[30] The Appeal Board also found that the Applicant's illiteracy constituted an extenuating factor. Due to his illiteracy, he would not have understood the complexities related to many of the licensing issues affecting him.
[31] The Board's recommendation was sent to the Respondent. It appears that the report of the Appeal Board was initially seen by the Deputy Minister of the Department of Fisheries and Oceans who prepared a memorandum dated August 21, 2001 for the Respondent. The memorandum requests a decision from the Respondent concerning the recommendations made by the Appeal Board. The Deputy Minister, in the covering note, indicated that the Department did not agree with the recommended approval in the case concerning the Applicant. In the covering memorandum, the Deputy Minister provided some remarks supporting the position taken in relation to the Applicant and said, in part, as follows:
Mr. Keating is appealing the reinstatement of a supplementary crab licence last held in 1990. The Board has recommended the reinstatement of the license. It is our opinion that the recommendation is clearly outside policy and will create considerable criticism from licensed crab fishers in the area, particularly in light of the current status of the resource.
[32] By letter dated October 9, 2001, written by P. S. Chamut, Assistant Deputy Minister, of the Department, the Respondent communicated his decision. The letter provides in part as follows:
The Minister has made a decision based on a thorough review of all available information and I regret to inform you that he has denied your appeal. The Minister concluded that the Licensing Policy was correctly interpreted and applied by the Department of Fisheries and Oceans in your case.
APPLICANT'S SUBMISSIONS
[33] The Applicant argues that the Respondent violated the principles of natural justice in denying his appeal and further, that his decision was patently unreasonable.
[34] The Applicant acknowledges that the Respondent has absolute discretion over the issuance of fishing licences. In Comeau's Sea Foods Ltd. v. Canada (Minister of Fisheries and Oceans), [1997] 1 S.C.R. 12, the Supreme Court of Canada stated that this absolute discretion is restricted only by the requirements of natural justice. The issuance of a fishing licence involves the exercise of discretion. The Applicant acknowledges that as long as the statutory decision-maker has exercised his discretion in good faith and where required, in accordance with the principles of natural justice, that decision will be immune from interference by a court.
[35] However, the exercise of that statutory discretion must be based upon considerations which are relevant to the statutory purpose and the decision-maker must consider relevant evidence in the exercise of the discretion. In this regard, the Applicant relies on Guo v. Canada (Minister of Citizenship and Immigration) (2001), 17 Imm.L.R. (3d) 313 (F.C.T.D.) at paragraphs 9 and 15 and Canada Post Corporation v. Canadian Human Rights Commission et al. (1997), 130 F.T.R. 241; affirmed (1999) 245 N.R. 397 (F.C.A.).
[36] In the letter dated October 9th, 2001, the Respondent denied the Applicant's appeal. That letter contained the following statement:
The Minister concluded that the Licensing Policy was correctly interpreted and applied by the Department of Fisheries and Oceans in your case.
[37] The Applicant submits that this statement does not amount to reasons for the decision. Consequently, he holds a reasonable apprehension that the Respondent failed to consider all relevant evidence or alternatively, considered irrelevant evidence.
[38] The Applicant argues that the Respondent took into account extraneous and irrelevant considerations in reaching his decision, including the memorandum from the Deputy Minister. The Deputy Minister stated as follows:
The Board has recommended the reinstatement of the licence. It is our opinion that the recommendation is clearly outside the policy and will create considerable criticism from licensed crab fishers in the area. [Emphasis added]
[39] The Applicant argues that the possibility of criticism from other licensed fishers in the area was totally irrelevant to the decision of whether or not to reinstate his licence.
[40] Furthermore, the Applicant argues that the Respondent failed to consider all relevant evidence in deciding to deny his request for reinstatement. In particular, the Applicant says that the Respondent failed to consider the conclusions and recommendations of the Appeal Board, that is the Appeal Board's findings that the Applicant believed that he still held his groundfish licence after he had transferred it and that his illiteracy was an extenuating circumstance that impaired him from understanding that he had transferred his groundfish licence or from learning about the appeal process earlier. Finally, the Applicant says that the recommendation of the Appeal Board was relevant and that it was ignored by the Respondent.
[41] The second issue addressed by the Applicant is that the Respondent's decision was patently unreasonable. In this regard, the Applicant argues that the decision in question cannot be sustained on any reasonable interpretation of the facts or the law and relies on National Corn Growers' Association v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324.
[42] The Applicant argues that there is no evidence that the Respondent's decision follows the policies of the Department of Fisheries and Oceans. The Policy provides for the establishment of an Appeal Board and also allows that Appeal Board to recommend the reinstatement of a licence where a person can show that extenuating circumstances exist. The Appeal Board reported that the Applicant is illiterate and the Respondent does not dispute this. The Applicant contends it is patently unreasonable to find that an illiterate person is not acting under a disability or that this amounts to extenuating circumstances.
[43] A mere statement that the Department of Fisheries and Oceans "correctly interpreted and applied" relevant policies does not mean that the Respondent's decision was reasonable. The lack of reasons in the letter of October 9, 2001 reasonably supports the conclusion that the decision in question was based upon a patently unreasonable interpretation of the facts.
[44] In these circumstances, the Applicant submits that the decision should be quashed and that an order issue directing the Respondent to issue a crab licence to him.
RESPONDENT'S SUBMISSIONS
[45] The Respondent raises a preliminary issue concerning the scope of the evidence and says that upon an application for judicial review, the court is bound by the record which was before the decision-maker. In this case, the Respondent takes exception to the affidavit filed by the Applicant in this proceeding on the grounds that it introduces evidence which was not before the decision-maker.
[46] The Respondent seeks an order striking paragraphs 2 through 34 of the Applicant's affidavit and relies on the decision of the Federal Court of Appeal in Gitxsan Treaty Society v. Hospital Employees' Union (1999), [2000] 1 F.C. 135 (C.A.) in support of the argument that evidence extrinsic to the record before the federal decision-maker whose decision is being reviewed cannot be introduced unless the issue for which the evidence is tendered deals with the jurisdiction of the federal board.
[47] The Respondent denies that his decision was reached in the absence or breach of the principles of natural justice. He argues that reasons for the decision were provided and to the extent that he took into account the recommendations of the Deputy Minister, he was entitled to do so; see Pure Spring Co. Ltd. v. Minister of National Revenue, [1947] 1 D.L.R. 501 at 530 (Ex. Ct.).
[48] The Respondent argues that the Appeal Board is an advisory board only. It has been created pursuant to the Licensing Policy as an internal appeal process to provide recommendations on the matter of issuing licences. It is not a statutory body but is a means available to the Respondent to receive advice relative to his exercise of discretionary authority pursuant to section 7 of the Fisheries Act, R.S.C. 1985, c. F-14, as amended (the "Fisheries Act") The Respondent, however, is not bound to follow the recommendations of the Appeal Board and the fact that he did not do so does not mean that there was a breach of natural justice.
[49] The Respondent argues that the Deputy Minister's memorandum only contained an opinion about the recommendation made by the Appeal Board. The memorandum did not contain any new evidence.
[50] Furthermore, the observations of the Deputy Minister as to the possible concerns of the industry are relevant and consistent with the necessity of responding to immediate policy concerns affecting the fishery. This was recognized by the Supreme Court of Canada in Comeau's Sea Foods Limited v. Canada (Minister of Fisheries and Oceans), supra, at page 25.
[51] As well, the Respondent argues that policy guidelines concerning the issuance of licenses do not have the force of law. By themselves, policy guidelines are not subject to judicial review, absence bad faith, failure to respect natural justice or reliance upon irrelevant considerations. Here the Respondent relies on Carpenter Fishing Corp. v. Canada, [1998] 2 F.C. 548 at 561 (C.A.); leave to appeal to S.C.C. refused (1998), 230 N.R. 398n (S.C.C.) and Maple Lodge Farms v. Government of Canada, [1982] 2 S.C.R. 2 at 6-7.
[52] Alternatively, the Respondent argues that if the record contains irrelevant factors, it is not fatal to a policy decision that those irrelevant factors were taken into account. A decision is vulnerable only when it is based entirely or predominately on irrelevant factors; see Canadian Association of Regulated Importers v. Canada (Attorney-General), [1994] 2 F.C. 247 at 260 (C.A.); leave to appeal to S.C.C. refused (1994) 176 N.R. 75n (S.C.C.).
[53] As for the standard of review, the Respondent argues that his decision should be assessed against the standard of patent unreasonableness and in this regard, relies on the decision of the Federal Court of Appeal in Jada Fishing Co. Limited and Evco Fishing Limited v. Canada (Minister of Fisheries and Oceans) (2002), 288 N.R. 237 (F.C.A.), [2002] F.C.J. No. 436 (QL), at paragraph 14, leave to appeal to S.C.C. requested, [2002] S.C.C.A. No. 209.
[54] The Respondent submits that it was not patently unreasonable for him to deny the Applicant's appeal. He made his decision upon the basis of the information before him, including the findings of the Appeal Board concerning the Applicant's illiteracy. He submits that the Court cannot set aside his decision, even if it might reach a different conclusion on the facts, unless the decision is so patently unreasonable that it is unsupported by the facts.
[55] The Respondent submits that such circumstances do not exist in this case and the present application should be dismissed.
ANALYSIS
[56] This application for judicial review is brought pursuant to the Federal Court Act, R.S.C. 1985, c. F-7, as amended, section 18.1. Sections 18.1(3) and 18.1(4) are relevant and provide as follows:
| (3) On an application for judicial review, the Trial Division may
(a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or
(b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal.
(4) The Trial Division may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal
(a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction; (b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe; (c) erred in law in making a decision or an order, whether or not the error appears on the face of the record; (d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it;
(e) acted, or failed to act, by reason of fraud or perjured evidence; or (f) acted in any other way that was contrary to law. |
|
(3) Sur présentation d'une demande de contrôle judiciaire, la Section de première instance peut_:
a) ordonner à l'office fédéral en cause d'accomplir tout acte qu'il a illégalement omis ou refusé d'accomplir ou dont il a retardé l'exécution de manière déraisonnable;
b) déclarer nul ou illégal, ou annuler, ou infirmer et renvoyer pour jugement conformément aux instructions qu'elle estime appropriées, ou prohiber ou encore restreindre toute décision, ordonnance, procédure ou tout autre acte de l'office fédéral.
(4) Les mesures prévues au paragraphe (3) sont prises par la Section de première instance si elle est convaincue que l'office fédéral, selon le cas_:
a) a agi sans compétence, outrepassé celle-ci ou refusé de l'exercer; b) n'a pas observé un principe de justice naturelle ou d'équité procédurale ou toute autre procédure qu'il était légalement tenu de respecter; c) a rendu une décision ou une ordonnance entachée d'une erreur de droit, que celle-ci soit manifeste ou non au vu du dossier; d) a rendu une décision ou une ordonnance fondée sur une conclusion de fait erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des éléments dont il dispose; e) a agi ou omis d'agir en raison d'une fraude ou de faux témoignages; f) a agi de toute autre façon contraire à la loi. |
[57] The decision here under review was made by the Respondent pursuant to the Fisheries Act, R.S.C. 1985, c. F-14, as amended, section 7(1) which provides as follows:
| 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. |
|
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. |
[58] The Respondent raises a preliminary argument concerning the appropriate evidence to be considered by the court in this application. He objects to paragraphs 2 through 34 of the Applicant's affidavit filed in support of this application, on the basis that the scope of the evidence to be considered in an application for judicial review is confined to the evidence before the decision-maker, except in limited circumstances. In this regard, the Respondent relies on Gitxsan Treaty Society, supra. In that case, the Federal Court of Appeal held that evidence extrinsic to the record before the federal tribunal whose decision is under review may be introduced in judicial review when it is the only way to challenge a lack of jurisdiction.
[59] There is no question in the present case involving the jurisdiction of the Respondent to make the decision under review. Accordingly, the principle enunciated in Gitxan, supra, is not applicable here.
[60] Here, the affidavit does not introduce material facts that were not part of the record before the Minister and hence an order striking the affidavit is not required I remain mindful of the established principle that this Court on a judicial review application is bound by the record which was before the federal decision-maker.
[61] The Respondent was asked to make a decision on the Applicant's request for reinstatement of his supplementary crab licence, following a positive recommendation from an Appeal Board. That Board is constituted pursuant to the Commercial Fisheries Licensing Policy for Eastern Canada, 1996. Extracts of the Policy appear in the record as attachments to the Affidavit of Robin Smith, Area Licensing Administrator for the Department of Fisheries and Oceans in Grand Bank, Newfoundland and Labrador. Section 35(7) and (8) of the Policy are relevant and provide as follows:
(7) The Atlantic Fisheries Licence Appeal Board will only hear appeals requested by fishers who have had their appeals rejected following hearings by Regional Licensing Appeal Committees, except where the Minister refers.
...
(c) The Board will make recommendations to the Minister on licensing appeals rejected through the Regional Licensing Appeal Structure by:
(i ) determining if the appellant was treated fairly in accordance with the Department's licensing policies, practices and procedures;
(ii) determining if extenuating circumstances exist for deviation from established policies, practices, or procedures;
[(d)- not within the Policy]
(e) Where the Board recommends making an exception to policy, practice or procedure in an individual case, the Board will provide a full rationale for its recommendation to the Minister.
(8) Notwithstanding subsection (7), the Minister may refer to the Board any decision he may wish to have reviewed.
[62] The Appeal Board has no statutory duty; it exists pursuant to a policy adopted by the Department of Fisheries and Oceans. However, according to the policy statement, it acts as an advisory body to make recommendations. The decision making authority remains in the hands of the Respondent.
[63] The reasons provided by the Appeal Board, in support of their recommendation that the Applicant's crab licence be reinstated, are not the subject of this application for judicial review. In Jada Fishing Co., supra, the Federal Court of Appeal commented on the relationship between the recommendation given by an appeal panel and a decision ultimately made by the Minister. At paragraphs 12 and 13, the Court said as follows:
It is clear that the Minister is empowered under section 7 of the Fisheries Act, R.S.C. 1985, c. F-14, with absolute discretion to make decisions with regard to fishing licences. The Panel, on the other hand, was without statutory authority and merely made recommendations which the Minister was entitled to accept or reject. Accordingly, the Panel's recommendations are not in themselves prima facie reviewable. In this case, due to the breadth of the Notice of Application for Judicial Review before Pelletier J., I am well satisfied that this Court can review a discretionary decision of the Minister based, in part, upon the Panel's recommendation.
The present appeal seeks to set aside the Reviewing Judge's order, and refers only to the "decision" of the Panel and its conduct, without reference to the Minister. However, the Minister's decision of April 3, 1998, still stands, and, in any event, the decision or recommendation of the Panel is inexorably connected to his decision, being without legal effect unless "adopted" by the Minister as one of the basis of his decision. In my analysis, this appeal can only continue as a review of the Minister's decision, albeit under the guise of an attack on the Panel's recommendation, based on paragraph 18.1(4) of the Act as a review of the exercise of Ministerial discretion.
[64] The Respondent exercises a statutory discretion, pursuant to section 7(1) of the Fisheries Act, when deciding whether to issue a licence. As long as he exercises his statutory discretion in accordance with the principles of natural justice, the courts will not intervene in the exercise of that discretion. This point was addressed by the Supreme Court of Canada in Comeau's Sea Foods Ltd., supra, where the Court said at paragraph 37:
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.
[65] In my opinion, the disposition of the present application turns on the issue of whether the Respondent exercised his discretion in accordance with the requirements of natural justice. That concern arises from the memorandum from the Deputy Minister, expressing an opinion about the recommendation from the Appeal Board.
[66] The Applicant argued that if the Respondent relied upon the opinions expressed by the Deputy Minister, then he took into account irrelevant considerations, in particular the comment about potential criticism from other licensed fishers in the area if a licence were issued to the Applicant. The Applicant characterizes this as a political concern and says that it is totally irrelevant to the decision which the Respondent was required to make concerning the reinstatement of his supplementary crab licence.
[67] While the courts have recognized that it is appropriate for a Minister to take into account the overall policy of a statute in deciding how to exercise a statutory discretion, as for example in Comeau's Sea Foods Limited, supra, at paragraph 37, I do not accept that reliance on political considerations is the same as reliance on policy concerns. The reference by the Deputy Minister to potential criticism from others in the fishing industry is not a proper consideration, in my opinion, when considering the Applicant's request to the Minister.
[68] The Deputy Minister's comments give rise to the apprehension that the Applicant's application was assessed by taking into consideration the reaction and possible controversy that a positive decision may cause among others in the industry. This consideration was irrelevant to the Applicant's individual situation. While broader policy and economic considerations are proper considerations in many instances, when a government body makes a decision regarding an individual, particularly where the individual has much at stake, the decision-maker does not act fairly when basing its decision, at least to some degree, on the desire to quiet the criticism of others.
[69] The letter from the Respondent dated October 9, 2001 does not clearly demonstrate that the decision in question was made without regard to this irrelevant factor. It has been held that the requirements of natural justice, relative to a discretionary decision authorized by statute, require that the decision-maker provide adequate reasons for the decision. In this regard, see Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paragraph 43.
[70] The record produced pursuant to Rule 317 of the Federal Court Rules, 1998, consists of the memorandum of the Deputy Minister dated August 21, 2001, the report of the Appeal Board and the brief paragraph of reasons for the decision of the Respondent, in his letter of October 9, 2001.
[71] To the extent that the tribunal record purports to provide reasons for this decision, there is a reasonable apprehension, in my opinion, that the Respondent relied on extraneous and irrelevant matters in reaching that negative decision. The irrelevant and extraneous material are the comments of the Deputy Minister mentioned above.
[72] In these circumstances, I am not satisfied that the requirements of natural justice have been respected in the manner in which the decision under review was reached. Accordingly, an order will issue quashing that decision.
[73] The Applicant seeks the additional relief of an order of mandamus, directing the Respondent to issue a supplementary crab licence. That remedy is beyond the jurisdiction of this Court to order and in this regard, see Kahlon v. Canada (Minister of Employment and Immigration), [1986] 3 F.C. 386 at 387 (C. A.). The matter of issuing licences is within the absolute discretion of the Respondent; see Carpenter Fishing Corp. v. Canada, supra, at 566-567.
[74] In the result, the application for judicial review is allowed. The decision of the Respondent dated October 9, 2001 is quashed and the matter is remitted to the Respondent for consideration in accordance with the requirements of natural justice.
[75] The Applicant shall have his costs.
"E. Heneghan"
J.F.C.C.
OTTAWA, ONTARIO
November 13, 2002
1. The style of cause was amended, upon motion, at the hearing of the within application.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1986-01
STYLE OF CAUSE: BRIAN KEATING v. THE ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: ST. JOHN'S, NEWFOUNDLAND AND LABRADOR
DATE OF HEARING: SEPTEMBER 27th, 2002
REASONS FOR ORDER : THE HONOURABLE MADAM JUSTICE HENEGHAN
DATED: NOVEMBER 13TH, 2002
APPEARANCES:
GREGORY PITTMAN FOR APPLICANT
KATHLEEN McMANUS FOR RESPONDENT
SOLICITORS OF RECORD:
MILLS HUSSEY & PITTMAN FOR APPLICANT
DEPARTMENT OF JUSTICE FOR RESPONDENT
HALIFAX, NOVA SCOTIA