Federal Court Decisions

     T-1832-96

BETWEEN:

     LORNE JOSEPH KELLY

     Applicant

     - and -

     THE ATTORNEY GENERAL OF CANADA

     Respondent

     REASONS FOR ORDER

MacKAY J.:

     This is an application for judicial review of, and for an order, quashing the decision of the Associate Regional Director-General, Maritimes Region (Gulf Fisheries), dated August 2, 1996. That decision was said to be with reference to an occurrence on August 3, 1995, near Skinners Pond, Prince Edward Island, when the applicant was found to be in violation of s. 57(1)(c) of the Atlantic Fishery Regulations, 1985, made pursuant to the Fisheries Act, R.S.C. 1985, c. F-14, as amended (the "Act"), for having on board a vessel a lobster trap during the closed fishing season. Noting that the applicant had appeared before the Provincial Court on February 1, 1996, when he was found guilty of a charge laid under s.57(1)(c) of the Regulations, for which he was fined $1,000.00, the decision provided that:

In accordance with the powers conferred on me by Section 7 of the Fisheries Act, I order that the following penalty be applied to your 1996 lobster fishing licence in Area 25:

Your 1996 Lobster Fishing Licence will not be issued for a period of four (4) consecutive weeks, beginning at the official opening of the lobster fishing season in Lobster Fishing Area 25.

This decision will be executed by the Department of Fisheries and Oceans when your licence is renewed for the 1996 Lobster Fishing Season.

     At the time of the violation of the regulations, August 3, 1995, the lobster fishing season was closed in Area 25 where the violation occurred, though it was, counsel were agreed, scheduled to be open there within a few days and to remain open for approximately two months. The penalty was imposed a year later by letter of August 2, 1996, which was received by the applicant on August 6, 1996, two days before the opening of the season, when he went to renew his licence and pick up tags for his lobster traps.

     The consequences for the applicant, he states by affidavit, filed with his application for judicial review in August 1996, are severe. Based on his fishing the previous year he estimates his loss of revenue for the first four weeks of the fishing season to be $45,000.00, and further he expects to lose employment insurance coverage for that period which could result in loss of benefits for the balance of the year. With mortgages on his house and his boat, and a substantial reduction in anticipated income he avers that he risks losing the basis for his livelihood.

     The application for judicial review was filed August 9, 1996. Though application records were filed, on August 15 by the applicant and on September 20, 1996 by the respondent, the matter did not come on for hearing until September 8, 1997. It was apparently the subject of discussions between counsel, concerning whether the matter should be set down for hearing in light of certain appeals anticipated in some other similar cases, but ultimately it was set down.

     I note that when heard, in September 1997, the 1996 lobster fishing season in Area 25 in the Gulf of St. Lawrence, was long past but I note also that notice of the impugned decision, received only two days before the opening of the 1996 season, in effect left no time for serious legal challenge by the applicant, to the penalty imposed before it became effective, even though the Crown urges that interim relief might have been sought from this Court pursuant to s.18.2 of the Federal Court Act, R.S.C. 1985 c. F-7, as amended.

     The circumstances of this case are essentially similar to those dealt with in Matthews v. Canada (Attorney General) (1996), 118 F.T.R. 81, [1997] 1 F.C. 206, 43 Admin. L.R. (2d) 143 (F.C.T.D.). In Matthews, decided in August 1996, I held that the imposition of a penalty in 1995, by deciding not to issue a snow crab fishing licence for the first three weeks of the 1995 season and by reducing the quota by 50% of that of the previous year, as a sanction in relation to violation of licence conditions in the 1994 season, was beyond the authority of the Minister conferred by s. 7 of the Act. In my opinion, as set out in the Reasons for the Order in that case, since Parliament has provided in the Act arrangements for penalizing violations by prosecution in the courts, including the power to suspend licenses in appropriate cases, it was not within the Minister's discretion under s. 7 to impose additional penalties or to substitute penalties.

     In this case the only factual differences from those in Matthews is that here the offence was not a violation of a term of a licence issued to the applicant, as in Matthews; rather in this case the violation is of a prohibition under the Regulations. A second difference is that in this case the penalty ordered on behalf of the Minister was to withhold the licence for a time at the commencement of the season following that in which the violation occurred, without also imposing a reduced quota as in Matthews. In my opinion those differences are not legally significant.

     The decision in Matthews was followed by my colleagues Mr. Justice Dubé in Duguay v. Canada (Ministre des Pêches et Océans) et al. (1996), 120 F.T.R. 227 and Madame Justice Tremblay-Lamer in Thibeault v. Canada (Ministre des Pêches et Océans) et al. (1996), 123 F.T.R. 35. I understand all three decisions, Matthews, Duguay and Thibeault, are on appeal to the Federal Court of Appeal.

     When this case came on for hearing, counsel for the respondent urged that Matthews was wrongly decided in view of the decision in Everett v. Canada (Minister of Fisheries and Oceans) (1994), 80 F.T.R. 160, 25 Admin L.R. (2d) 112, 169 N.R. 100, 47 A.C.W.S. (3d) 174 (F.C.A.), affirming 63 F.T.R. 279, 40 A.C.W.S. (3d) 771 (F.C.T.D.), and particularly in light of the decision of the Supreme Court of Canada in Comeau's Sea Foods Ltd. v. Canada (Minister of Fisheries and Oceans) (1997), [1997] 1 S.C.R. 12, 142 D.L.R. 4th 193, 206 N.R. 363, 43 Admin. L.R. (2d) 1, 31 C.C.L.T. (2d) 236.

     In Matthews I distinguished the circumstances in Everett, and I noted that in that case Madame Justice Desjardins expressly stated that the decision of the Minister there in issue was not penal in character. In my opinion, the Supreme Court in Comeau's Sea Foods did not consider the question raised by Matthews and by this case, that is, whether the Minister's discretion under s. 7 includes the authority to impose a penalty for violation of a term of a licence, as in Matthews, or for violation of the Regulations, as in this case, in a previous year.

     At issue in Comeau's Sea Foods was the authority of the Minister to revoke an authorization, previously given under s. 7 of the Act, to issue a fishing licence. Mr. Justice Major, for the Supreme Court, discussed the nature of the Minister's discretion under s. 7, particularly his discretion not merely to issue, but to "authorize to be issued leases and licenses for fisheries or fishing". There was no discussion or reference to the authority of the Minister in issuing a licence to impose a penalty for violation of licence conditions or of regulations, a power not specifically provided for or authorized by the Act which does include provisions for violation of the Act, the Regulations or terms of licenses. With respect for other views, I do not consider that Comeau's Sea Foods qualifies the reasoning on which Matthews was based.

     In the circumstances, I consider this case to be similar to Matthews and for the reasons there set out I reach a similar conclusion. The decision on behalf of the Minister, made on August 2, 1996 for the purpose of imposing a penalty on the applicant, in addition to the penalty already imposed upon him in the provincial court, for violation of fisheries Regulations in a previous year, is quashed. Since that provides no effective relief from the penalty imposed on behalf of the Minister, here found to be unlawful as beyond his authority, and since the issue continues to be of significance, this Court of its own volition also declares that the discretion vested in the Minister of Fisheries and Oceans pursuant to s. 7 of the Act does not include authority to refuse to issue a licence for part of a fishing season for the purpose of imposing a penalty because of violation of fisheries Regulations in a previous year.

     I deal briefly with other issues raised in relation to this application.

     First, the Minister of Fisheries and Oceans, joined as a respondent with the Attorney General in the original application for judicial review, as suggested in written submissions on behalf of the Ministers, is struck out as a respondent, leaving the Attorney General of Canada as the proper respondent, with the style of cause amended as set out at the commencement of these Reasons and in the accompanying Order.

     Second, I do not accept the applicant's submissions that the Associate Regional Director-General, Maritimes Region (Gulf Fisheries) was not a person authorized to act on behalf of the Minister of Fisheries and Oceans under s. 7 of the Act. The record indicates that that officer was advised by letter of September 14, 1995, that effective July 18 of that year, he was charged with execution of any power previously exercised by the Regional Director-General with respect to the area formerly known as the Gulf Region, with regard to, inter alia, the Fisheries Act and Regulations, and the Licence Sanction Policy of the Department. Moreover, by Ministerial determination dated April 6, 1994, and continuing thereafter, the then Minister of Fisheries and Oceans confirmed and continued the determination that Regional Directors-General of the Department "serve in a capacity appropriate to the exercise of the powers of the Minister under s. 7 and s. 9 of the Act". That clearly brings the exercise of authority on behalf of the Minister within s. 24(2)(d) of the Interpretation Act, R.S.C. 1985, c. I-21, removing any serious question about the Associate Regional Director-General's authority to exercise discretion on behalf of the Minister under s. 7 of the Fisheries Act.

     Third, I do not accept that failure to provide timely access to judicial review of the decision not to issue the applicant's licence for four weeks, precluding any effective review before the penalty took effect, constitutes a failure to observe principles of natural justice. The timing of the decision did not preclude judicial review. Whether relief for the applicant, from the financial effects of the penalty, may still be obtainable is an issue for another day.

     Fourth, I am not persuaded by the applicant's submissions that the Associate Regional Director-General erred in law by failing to give reasons for the imposition of such a harsh penalty and for rejecting compelling evidence, namely the reasons for judgment of Chief Provincial Court Judge Ralph C. Thompson when sentencing the applicant following his conviction for violation of the Regulations.

     As for the lack of reasons for the decision, it is now well settled in this Court that unless there is a statutory requirement to do so, an administrative decision-maker, i.e., a federal board, commission or tribunal, is not obliged to give reasons for a decision (see Williams v. Canada (Minister of Citizenship and Immigration), [1997] 2 F.C. 646; 147 D.L.R. (4th) 93; 212 N.R. 63 (F.C.A.)). There is no statutory requirement under the Act or Regulations for the Minister, or his or her delegate, to give reasons for a decision under s.7 of the Act, but here the basic reason was clearly stated, to impose a penalty.

     I agree with the respondent that the comments of Judge Thompson are not evidence, yet they are an opinion that is not without interest. In sentencing the applicant to a fine, Judge Thompson said:

..the Court is sometimes requested to impose license cancellations or suspensions. And in the past, the Court has done that on occasion. Given the small number of traps involved here, given the fact that there is no previous record, and given all the circumstances in this matter, for what it is worth, I do not consider this an appropriate case to suspend the Accused's license. I don't know whether this is worth anything from a departmental standpoint, but I am prepared to state that on the evidence before me that in my view that the one thousand dollar fine is an appropriate and should be considered a complete penalty in this matter.

The record shows these comments were brought to the attention of the Associate Regional Director-General by counsel for the applicant in submissions made in response to the departmental indication that sanctions would be considered. But the decision maker was not bound to follow the opinion of Judge Thompson, whose remarks indicate his awareness that if a decision on sanctions was to be made under department policy, it was not his decision.

     Finally, for the applicant it is urged that if the decision in Matthews is not here followed, the impugned decision is "patently unreasonable in that the penalty is grossly disproportionate to the offence and inconsistent with case precedents". The inconsistency referred to arises from comparison with one case reported in a document apparently released by the Minister's Department dated July 8, 1996, entitled "DFO Releases List of Sanctions Applied to Gulf Fisheries Fishermen During 1995". That list refers to only one case of a lobster licence holder, from Prince Edward Island, who, when found with lobster traps on board his vessel during a closed time in the previous year, had his licence suspended for the first day only of the 1995 season. The facts of that case are not reported in any detail that would permit full comparison with this case.

     There are no other standards suggested that would aid in assessing whether the penalty here was so patently unreasonable that it must be beyond the authority of the Minister under s. 7. Two other situations appear in the reported cases of Duguay and Thibeault.

     In the former, the alleged offence was failure to comply with snow crab licence conditions in 1993 by concealing, or not reporting, part of the catch, said to be three trays weighing between 180 and 200 pounds. For the following year the crab fishing licence, issued to the fisherman concerned, provided as a sanction a decrease in quota, from the previous year, of two metric tonnes. There was no discussion of whether the penalty was unreasonable, although it appears in that case there was no criminal prosecution and the fisherman concerned, protesting his innocence, complained of the lack of opportunity to confront his accusers.

     In Thibeault, my colleague Madame Justice Tremblay-Lamer concluded that a significant reduction in quota under a 1995 snow crab fishing licence, which would result in a seasonal loss of revenue estimated at $22,000.00 for the fisherman concerned, was unreasonable and thus not within the Minister's discretion. She so found because the record before her revealed nothing about the bases, including procedural requirements established by departmental guidelines, upon which the decision there in question was based.

     Failure to meet departmental procedural requirements was not argued in this case. Rather, the applicant's case was simply that for having two lobster traps on board his vessel in a closed season, a few days before the lobster fishing season was due to commence, the penalty imposed by the Minister, loss of licence for four weeks in the fishing season of the following year, was patently unreasonable. Clearly that would appear to be the case when the anticipated loss of revenue for the applicant, some $45,000.00, is compared with the fine imposed by the provincial court for the same violation of the Regulations. However, that is a basis different from that found in Thibeault for concluding the sanction was so unreasonable as to be beyond the Minister's authority.

     The respondent urges that since the Minister's discretion under s. 7 is expressly said to be absolute, the Court may not intervene in relation to the penalty imposed. In the absence of a standard of reasonableness related to the responsibilities of DFO officers in dealing with alleged violations of the Regulations, it is difficult to measure the exercise of the Minister's discretion in this case. Nevertheless, if it were within the Minister's discretion pursuant to s. 7 to impose a penalty for violation of fisheries Regulations, in line with Thibeault I would find the penalty here to be so unreasonable and arbitrary that the decision is beyond the Minister's authority under s. 7. Unreasonableness is measurable at least by comparison of the anticipated loss of revenue from inability to fish lobster for the four weeks at the beginning of the 1996 season, with the fine imposed upon conviction in the provincial court for the same offence. In this regard, it is worth remembering that the fine imposed in the provincial court was imposed as a result of the procedure provided by Parliament under the Act to deal with alleged violations of the Act or Regulations.

Conclusion

     Following Matthews, I find the decision here in question, made for the purpose of imposing a penalty upon the applicant for his violation of the fisheries Regulations the previous year, was not within the discretion of the Minister pursuant to s. 7 of the Act. If it were within the Minister's discretion to impose a penalty, following Thibeault I would find the penalty imposed was so unreasonable that is was beyond the discretion vested in the Minister.

     ____________________________________

     JUDGE

OTTAWA, Ontario

September 17, 1997.