Date: 20050725
Docket: T-1745-04
Citation: 2005 FC 1020
Ottawa, Ontario, the 25th day of July 2005
Present: THE HONOURABLE MR. JUSTICE LUC MARTINEAU
BETWEEN:
JAMES DOBBIN, FINTAN DOBBIN, FINTAN RUMBOLT,
REG RUMBOLT, DEON LAVERS, BARRY BUCKLE
Applicants
and
DEPARTMENT OF FISHERIES AND OCEANS CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] The relevant facts leading to the present judicial review application are not in dispute.
[2] The Applicants are lifelong residents of the province of Newfoundland and Labrador. They hold licences to pursue snow crab fishery which have been in existence since the 1980's.
[3] In the early 1980's, the Respondent, Department of Fisheries and Oceans Canada, wanted to develop a commercial crab fishery in the Gulf of St. Lawrence (the Gulf) where previously none existed. To do so, the Respondent issued a number of snow crab licenses in the Gulf. Each licence holder assumed the financial risk to outfit a vessel and find a way to develop this new fishery.
[4] The initial quota provided with each licence was 100,000 pounds of snow crab. The vessels in question formed a fleet of 49 vessels; 43 were operated by licence holders residing in the province of Quebec and the remaining 6 vessels were operated by licence holders residing in the province of Newfoundland and Labrador, the Applicants in this proceeding (the Applicants). For over two decades, the entire 49 vessel fleet fished in Crab Fishing Area (CFA) 13. It appears that all fishermen were accorded the same treatment. Over time, this fishery was very successful and it appears that the Respondent issued licences and quotas to numerous other fishermen, particularly small boat inshore fishermen. Also, over time, the initial quota granted to each of the 49 licence holders was reduced so that by 2002 each vessel was limited to 26,000 pounds of snow crab.
[5] That being said, in 2002, a new CFA 16 fishing zone was opened to the west of CFA 13. Quotas of 20,000 pounds of snow crab were given in CFA 16 to the 43 licence holders residing in the province of Quebec while no quota was given to the 6 Applicants. In a letter dated May 22, 2003, the Regional Director General, Newfoundland and Labrador Region, for the Respondent, explained the rationale for this decision:
[...]
As indicated in your letter, Quebec based fishers were provided some fishing opportunity for CFA 16. The crab fishery in CFA 16 is managed by the Quebec Region. The allocation to the CFA 13 Quebec based fishers in CFA 16 in 2002 was a decision of the department through consultation with the industry in the Quebec Region. There was no agreement to provide the same opportunity to the Newfoundland based fishers. Because of declining quotas in CFA 16, the allocation for the Quebec based CFA 13 fishers will not be available in 2003.
The Newfoundland and Labrador Region explored options to assist the Newfoundland based fishers from CFA 13. However, with the crab fishery in the 4R portion of CFA 12 already fully subscribed, there was no opportunity to provide them access to this area. An exploratory fishery for the northern portion of CFA 13 was authorized for the Newfoundland based fishers. Unfortunately this was not successful.
[6] In February 2004, as a result of the Respondent's decision to refuse to provide the same fishing opportunity for CFA 16 to the Newfoundland based fishers, the Applicants made a complaint against the Respondent before the Canadian Human Rights Commission. The allegations in the complaint are of differential treatment based on national or ethnic origin. The Applicants rely on sections 3 and 5 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (the Act) which provide that it is a discriminatory practice to deny or differentiate on the basis of race, national or ethnic origin or colour with respect to the provision of goods, services, facilities or accommodations customarily available to the public.
[7] On August 26, 2004, pursuant to paragraph 41(1)(c) of the Act, the Commission decided not to deal with the Applicants' complaint. The impugned decision was released to the Applicants by a letter from the Secretary of the Commission which stated that "the complaint is beyond the jurisdiction of the Commission in that the matters raised in the complaint are not related to one of the prohibited grounds of discrimination stated in the Act." In the case at bar, the Commission apparently considered that the complaint dealt solely with the question of residence, rather than an enumerated ground such as nationality or ethnic origin.
[8] I find no reviewable error in the Commission's decision to refuse to deal with the Applicants' complaint pursuant to paragraph 41(1)(c) of the Act. Since a person's place of residence is not an enumerated ground of discrimination, it follows that the Commission would have no jurisdiction to enquire on alleged differential treatment of Newfoundland and Labrador fishers, as compared to the fishers in other provinces, based on quotas that were put into place by the Respondent. Distinction based on place of residence does not constitute a prohibited ground of discrimination under the Act. Clearly, the Act does not give the Commission statutory authority to investigage how a resident or a group of residents of one province or territory may be treated by a government department or federally regulated company as compared to how that organisation might treat a resident or group of residents of another province or territory.
[9] There are numerous situations where individuals have been treated differently because of their "place of residence". This will not normally constitute a prohibited ground or distinction under human rights legislation. For example, in Nova Scotia Confederation of University Faculty Assn. v. Nova Scotia (Human Rights Commission), [1995] N.S.J. No. 296 (NSSC) (QL), the Nova Scotia Supreme Court reviewed a decision of the Nova Scotia Human Rights Commission to dismiss a complaint that was based on "place of residence". In that case, the basis for discrimination was that a differential fee was charged to foreign students by Universities in Nova Scotia. The Court upheld the finding of the Commission that the complaint was beyond its jurisdiction since the differential treatment was determined to be based on "place of residence". See also, Simon Fraser University International Students v. Simon Fraser University, [1996] B.C.C.H.R.D. No. 13 (BCCHR) (QL).
[10] Moreover, the Applicants' complaint fails to disclose any material fact suggesting that the Respondent's decision to refuse to provide the same fishing opportunity for CFA 16 to the Newfoundland based fishers may be motivated, in whole or in part, on the ground that the Applicants, as Newfoundlanders, are ethnically different or constitute a distinct group from the fishermen based in other provinces because of their national origin. The fact of the matter is that CFA 16 is managed by the Quebec Region. It appears that the allocation to the CFA 13 Quebec based fishers in CFA 16 in 2002 was a decision of the Respondent through consultation with the industry in the Quebec Region. While the Respondent has favoured the Quebec based fishers when it delivered the disputed quotas, the differential treatment is clearly based on their place of residence and not on their ethnicity or particular national origin.
[11] In conclusion, I find that the Applicants' complaint is not based on one of the enumerated grounds mentioned in section 3 of the Act, and as such, does not fall within the ambit of section 5 of the Act. Consequently, the Commission was correct when it determined that it did not have jurisdiction in this case.
ORDER
THIS COURT ORDERS that the present application for judicial review be dismissed.
"Luc Martineau"
Judge
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: T-1745-04
STYLE OF CAUSE: James Dobbin et al. v. Department of Fisheries and Oceans Canada
PLACE OF HEARING: St. John's, Newfoundland and Labrador
DATE OF HEARING: July 14, 2005
REASONS FOR ORDER BY: MARTINEAU J.
DATED: July 25, 2005
APPEARANCES BY:
T. James Bennett For the Applicants
Melissa R. Cameron For the Respondent
SOLICITORS OF RECORD:
Bennett Law Firm For the Applicants
Daniel's Harbour, NL
John H. Sims, Q.C. For the Respondent
Deputy Attorney General of Canada