Date: 20030924
Docket: T-1705-02
Citation: 2003 FC 1097
Ottawa, Ontario, this 24th day of September 2003
Present: The Honourable Madam Justice Heneghan
BETWEEN:
THOMAS J. FENNELLY
Applicant
and
HER MAJESTY THE QUEEN
(MINISTER OF FISHERIES AND OCEANS)
Respondent
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] Mr. Thomas J. Fennelly (the "Applicant") seeks judicial review of the decision of the Honourable Robert G. Thibault, Minister of Fisheries and Oceans (the "Respondent") dated September 6, 2002. In his decision, the Respondent denied the Applicant's request for reissuance of an exploratory snow crab licence. The Applicant now seeks an order setting aside the decision together with an order that the Respondent redetermine the request for reissuance in accordance with the reasons of the Court in this application. Further, the Applicant seeks an order that the Respondent proceed on the basis that he had received a licence for the M.V. "Sandy Joanne" in 1998, rather than some authorization for use of that vessel as a replacement vessel in relation to any prior licence held by him.
FACTS
[2] The Applicant is a fisherman and has been engaged in the commercial fishery since 1972. He has held a commercial fishing licence for vessels in the 65 to 100 foot class since 1981. He currently operates a 75-foot stern trawler, the M.V. "Bear Cove Point" and a 95-foot multi-purpose trawler, the M.V. "Sandy Joanne".
[3] In 1995, the Applicant was issued an exploratory crab fishing licence for crab fishing in the North Atlantic Fisheries Organization ("NAFO") Division 3, LMNO, offshore Newfoundland and outside Canada's 200-mile limit. This licence was issued for use on the M.V. "Bear Cove Point" and has been continuously reissued since 1995. A copy of the reissued licence for the M.V. "Bear Cove Point", reference number NF-637-98, is attached as an exhibit to the main affidavit of the Applicant filed in this proceeding.
[4] On October 30, 1998, the Applicant received a document entitled "1998 Exploratory Snow Crab Licence - 3N" reference number NF-956-98, to be used on the M.V. "Sandy Joanne". The licence was said to be valid from November 1 to November 30, 1998. An amendment was issued on November 30, 1998, extending the period of validity to December 15, 1998.
[5] In the main affidavit filed by the Applicant in support of this application, he states that he understood that the two licences were separate and distinct, issued for different vessels, with different reference numbers and for fishing in different areas. He also said that in 1998, both the vessels fished for crab.
[6] In 1999, the Applicant applied for the reissuance of both exploratory crab licences. The licence for the M.V. "Bear Cove Point" was reissued but the licence for the M.V. "Sandy Joanne" was refused.
[7] The Applicant fished for crab in 1999 with Offshore Fish Resource Harvesters Inc. The M.V. "Sandy Joanne" was named on this licence held by that company. No exploratory crab licence was issued to the Applicant for the M.V. "Sandy Joanne" in 1999 or subsequently.
[8] The Applicant claims that the first reference to the status of the M.V. "Sandy Joanne" as a replacement vessel, participating in the exploratory crab fishery under the licence issued for the M.V. "Bear Cove Point", occurred in February 2000. On February 24, 2000, Roy Russell, Director-Resource Management of the Department of Fisheries and Oceans, wrote a letter to the Applicant and said as follows:
It is necessary to clarify that you were authorized to use the "Sandy Joanne" in the exploratory snow crab fishery outside 200 miles as a temporary replacement for your vessel Bear Cove Point, which you are currently eligible to use in the exploratory snow crab fishery in NAFO Divisions 3NO. The approval to use the "Sandy Joanne" as a temporary replacement in the 1998 exploratory fishery outside 200 miles does not accord the "Sandy Joanne" any status in the crab fishery.
[9] The Applicant communicated by letter with the Respondent during 2000 repeatedly requesting reissuance of the licence for the M.V. "Sandy Joanne". In November 2001, he appeared before the Regional Licence Appeal Committee (the "Committee"), a body established pursuant to the Commercial Fisheries Licensing Policy for Eastern Canada, (Ottawa: Minister of Supply and Services Canada, 1996) (the "Licensing Policy"). Chapter 7, section 35, of the Licensing Policy deals with the appeal process for persons who are not satisfied with the decisions of officials from the Department of Fisheries and Oceans ("Department"). Section 35 (2) states that the Committee reviews "all pertinent information" and makes recommendations to the Regional Director General.
[10] The Committee recommended to the Regional Director General of the Department that the Respondent's denial of the Applicant's request for reissuance of an exploratory snow crab licence be upheld. The Regional Director General accepted this recommendation and notified the Applicant of his decision by letter dated April 5, 2002.
[11] The Applicant appealed this decision to the Atlantic Fisheries Licence Appeal Board (the "Appeal Board"), upon referral of the Respondent. The Appeal Board exists pursuant to the Licensing Policy. According to Section 35(7)(c) of the Licensing Policy, its role is to hear appeals of licensing decisions and to make recommendations to the Minister by determining if the appellant was treated fairly and if "extenuating circumstances" exist that would justify deviation from "established policies, practices or procedures".
[12] The Applicant appeared before the Appeal Board and made submissions, including an account of his involvement in the exploratory crab fishery since 1995. He stated that he had not received any document from the Department of Fisheries and Oceans indicating that the M.V. "Sandy Joanne" was considered to be a temporary replacement vessel to use the licence issued for the M.V. "Bear Cove Point". Further, he noted that there is no documentation from the Department indicating that he was to bank his groundfish licence for the M.V. "Bear Cove Point" while being authorized to use the M.V. "Sandy Joanne" as a temporary replacement vessel for the M.V. "Bear Cove Point", fishing under the exploratory crab fishing licence issued for the M.V. "Bear Cove Point".
[13] The Appeal Board did not hear from a representative of the Department but was provided with a written summary of the Department's position. The summary was prepared by Mrs. Bernadette Clarke. The Department said that in November 1998 the Applicant was approved to conduct an exploratory fishery based on his holding an exploratory licence issued on the M.V. "Bear Cove Point". The Department's position was that the M.V. "Sandy Joanne" was a "temporary replacement" vessel on the condition that the Applicant banked his groundfish licence on the M.V. "Bear Cove Point". The Department stated that the original approval to register the M.V. "Sandy Joanne" was to fish scallops, and was approved as an exception to the vessel replacement rules for "scallop only".
[14] The Appeal Board recommended that the Minister deny the Applicant's appeal and made the following recommendation:
RECOMMENDATION: Appeal Denied
The Board feels that Mr. Tom Fennelly has been treated fairly in that no new exploratory crab licence has been issued since 1998.
However, the board feels that based on the work that Mr. Fennelly has done and the benefits derived for other Newfoundland crab fishers if new licences were issued a second exploratory crab licence be granted to this enterprise.
[15] In a memorandum dated August 6, 2002, the Deputy Minister, Peter Harrison, tendered his opinion to the Minister. Mr. Harrison also recommended that the Applicant's licensing appeal be denied. The Harrison memorandum referred to other licensing appeals that required a final decision from the Minister and set out the Department's opinion on the Appeal Board's recommendations, that is that the "DFO concurs with the recommendations of the AFLAB for two requests to be approved and for four requests to be denied."
[16] The Minister apparently accepted the Appeal Board's recommendation relative to the Applicant. The Minister communicated his negative decision by letter dated September 6, 2002, which stated as follows:
Dear Mr. Fennelly:
The Honourable Robert G. Thibault has asked me to respond to your letter regarding your request for a second exploratory crab licence. As you know, your request was referred to the Atlantic Fisheries Licence Appeal Board and was heard on April 29, 2002 at the Airport Plaza Hotel, St. John's, Newfoundland.
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.
I regret, once again, that this decision could not be more favourable to you.
ISSUE
[17] The issue arising from this application is whether the Minister committed a reviewable error in denying the Applicant's appeal.
APPLICANT'S SUBMISSIONS
[18] The Applicant acknowledges the Minister's discretionary authority to issue licences pursuant to section 7(1) of the Fisheries Act, R.S.C. 1985, c. F-14 (the "Act"). He says that while decisions of the Appeal Board are not prima facie reviewable, this Court can review a discretionary decision of the Minister that is based, in part, on the recommendation of the Appeal Board. Relying on Jada Fishing Co. v. Canada (Minister of Fisheries and Oceans) (2002), 288 N.R. 237 (F.C.A.) at 242; application for leave to appeal to the S.C.C. refused November 21, 2002, [2002] S.C.C.A No. 209 (QL), the Applicant argues that the Appeal Board's decision is "inexorably connected" to the Minister's ultimate decision to refuse the reissuance of the licence for the M.V. "Sandy Joanne".
[19] The Applicant submits that the appropriate standard of review, employing the pragmatic and functional approach, is reasonableness simpliciter. He relies on Jada Fishing, supra, in this regard and argues that according to that decision, the Appeal Board's recommendations will be found to be unreasonable if they fail to withstand a somewhat probing examination.
[20] Next, the Applicant argues that the Minister failed to consider relevant factors in exercising his discretion and denying the reissuance of the licence. The Applicant here relies on Comeau's Sea Foods Ltd. v. Canada (Minister of Fisheries and Oceans), [1997] 1 S.C.R. 12 and Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3. In those decisions, the Supreme Court of Canada stated that the exercise of ministerial discretion is subject to the requirements of natural justice.
[21] The Applicant also argues that the Minister based his decision on incorrect information, namely that the request related to the issuance of a "second" exploratory crab licence. In fact, the Applicant sought reissuance of the licence that had been issued in 1998 for the M.V. "Sandy Joanne". At the beginning of its report to the Minister, the Appeal Board observes that the Minister has not approved any "new licences" in the crab fishery since 1996. The Applicant was not seeking a new licence but the reissuance of a previously held licence for the M.V. "Sandy Joanne".
[22] As well, the Applicant argues that the Minister's decision was based, in part, on the Department's concern over possible controversy that might arise from the reinstatement of crab licences. According to the Applicant, evidence of this concern is found in the memorandum of Mr. Harrison to the Minister. Relying on Keating v. Canada (Minister of Fisheries and Oceans) (2002), 224 F.T.R. 98, the Applicant says reliance on potential criticism from other participants in the fishing industry has been found to be an irrelevant consideration in the context of a ministerial decision to deny the reinstatement of a crab licence.
[23] The Applicant also argues that the Appeal Board's statements that pursuant to departmental policy, no new crab licences have been issued since 1996 is not supported by the evidence. The Applicant received a licence, issued by the Minister, in October 1998 for the M.V. "Sandy Joanne". The Appeal Board's report is contradictory concerning the date when licences were no longer issued. At the beginning of its report, the Appeal Board says that the date was 1996 but in its final recommendation, the Appeal Board states 1998. This inconsistency, according to the Applicant, shows that the Appeal Board did not fully understand the policy that applied to his case. The applicable policies included the Licensing Policy, the New Emerging Fisheries Policy, and the 1997/1998 Multi-Year Snow Crab Integrated Management Plan.
[24] Further, the Applicant submits that the Appeal Board's recommendation was unreasonable because it failed to address two key issues: the differing Department policies regarding the issuance of new commercial fishing licences in comparison to licences that are either exploratory or re-issued and whether the licence for the M.V. "Sandy Joanne" was a separate licence or simply an authorization to use that vessel as a replacement vessel operating under the licence for the M.V. "Bear Cove Point". The Appeal Board failed to address this factor in its report; it also failed to comment upon or deal with vessel replacement practice.
[25] The evidence from officials of the Department indicated that vessel replacements are completed by adding the replacement vessel to an existing licence. There is no evidence that this practice was followed here, that is by the addition of the M.V. "Sandy Joanne" to an existing licence. However, this point was not addressed in the Appeal Board's report, the Harrison memorandum or in the decision itself, that is the letter dated September 6, 2002.
[26] Finally, the Applicant argues that the written recommendation of the Appeal Board does not amount to adequate reasons, in the circumstances. The Appeal Board failed to clearly show how it reached its recommendation and it is impossible for the Applicant to know why it reached a negative recommendation.
RESPONDENT'S SUBMISSIONS
[27] The Respondent argues that the Appeal Board serves an advisory role and lacks any statutory authority, since it was created pursuant to the Licensing Policy. The Appeal Board is one of many means available to the Minister to receive advice concerning the exercise of his discretionary authority conferred by section 7 of the Act. The Respondent relies on Keating, supra, in support of this argument.
[28] The Respondent submits that the Appeal Board's recommendations were reasonable. The Appeal Board made reasonable findings of fact, after hearing the Applicant's representations and reviewing the written submissions from the Department.
[29] The Respondent says the Appeal Board merely made a typographical error in its recommendation, when it said that no new exploratory crab licences had been issued since "1998". The reference should have been to "1996".
[30] The Respondent submits that the Appeal Board was not required to provide reasons for its recommendation, including reference to departmental policies. It is only required to provide a "full rationale" for its recommendation when it recommends that the Minister make an exception to a policy, practice or procedure in an individual case, pursuant to section 35(7)(e) of the Licensing Policy, supra.
[31] The Respondent submits that it was reasonable for the Appeal Board to recommend that the Applicant's request for a second exploratory crab licence be denied. The Respondent says that in reaching this position, the Appeal Board reasonably believed that the Department's position that the request for a licence for the M.V. "Sandy Joanne" was a request for a new, second exploratory crab licence, rather than for reinstatement of a previously granted licence, on the grounds that the Minister had not approved any new exploratory crab licences in the fishery since 1996.
[32] The Respondent refers to the purpose of granting exploratory crab licences, that is to determine the extent of snow crab distribution in different areas in order to further the development of the snow crab fishery. Pursuant to the 1997/1998 Multi-Year Snow Crab Integrated Management Plan, supra, the Minister implemented a freeze on the issuance of exploratory crab licences, except to those enterprises that had received such licences in 1995 and 1996.
[33] The Respondent argues that the standard of review for a decision made pursuant to section 7(1) of the Act is patent unreasonableness, relying on Tucker v. Canada (Minister of Fisheries and Oceans) (2000), 197 F.T.R. 66, aff'd. (2001), 288 N.R. 10 (F.C.A.). The Respondent also relies on Comeau's Sea Foods, supra, where it was held that the discretion to issue a licence was in the Minister's "absolute discretion", subject only to the requirements of natural justice, as identified in Carpenter Fishing Corp. v. Canada, [1998] 2 F.C. 548 (C.A.), leave to appeal to S.C.C. refused, [1999] S.C.C.A. No. 349 (QL).
[34] The Respondent argues that the decision of the Minister was not patently unreasonable, having regard to the objectives of the Act and the Minister's duty to advance those objectives. The purpose of the Act is to manage, conserve and develop the fishery. Licensing, as a means of restricting entry into a commercial fishery, is one means available to the Minister to manage the resource. There is no vested right in a licence, including an exploratory licence. Further, the Minister is under no obligation to reinstate a previously granted licence or to issue a second licence: see Comeau's Sea Foods, supra and Tucker, supra.
[35] The Respondent also argues that the reasons of the Minister show that he addressed the relevant considerations and reviewed the material before him, including the Appeal Board's report and recommendation, the Harrison memorandum and the applicable policies. The Respondent says that the comments of the Deputy Minister, concerning criticism from others in the industry, refer to those persons seeking the reinstatement of supplementary crab licences and not to this Applicant. On this basis, the situation here is distinguishable from that in Keating, supra.
[36] Alternatively, the Respondent argues that if this Court finds that the Minister did consider irrelevant factors in coming to this decision, then that is not fatal since the decision was not based entirely or predominately on irrelevant factors: see Canadian Association of Regulated Importers v. Canada (Attorney General), [1994] 2 F.C. 247 (C.A.), leave to appeal to S.C.C. denied, [1994] S.C.C.A. No. 99 (QL).
ANALYSIS
[37] 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)(d) are relevant and provide as follows:
| 18.1(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.
18.1(4) The Trial Division may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal ... (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; |
|
18.1(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 don't 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.
18.1(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_: ... 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 don't il dispose; |
[38] The decision here under review is governed by section 7(1) of the Act 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. |
[39] The Respondent was required to make a decision relative to the recommendation of the Appeal Board. The Appeal Board exists pursuant to the Licensing Policy. Section 35(7) and (8) of the Licensing 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.
[40] In the present case, the Applicant had pursued an appeal before the Regional Licensing Appeal Committee and the appeal to the Appeal Board followed a referral by the Minister.
[41] The role of the Appeal Board and the relationship between its recommendation and the decision of the Minister were discussed in Keating, supra at 109 as follows:
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.
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.
[42] Although both the Applicant and the Respondent made comprehensive submissions concerning the standard of review applicable to a discretionary decision of the Minister, pursuant to section 7(1) of the Act, that is the issuance of a licence, in my opinion, the disposition of this application does not depend on the standard of review. The decision is vulnerable on the basis that the Appeal Board, in its report and recommendation, failed to address a fundamental factual matter raised by the Applicant's appeal. This error was compounded when the Minister failed to address the same question. He then made a decision that was based on a misapprehension of the facts. In the result, he made a decision grounded on an erroneous finding of fact, made without regard to the material before him. According to section 18.1(4)(d) of the Federal Court Act, supra, such situation justifies intervention by the Court.
[43] The factual matter in issue is whether the Applicant was requesting a new exploratory crab licence or merely the reissuance of the licence that had been previously issued for the M.V. "Sandy Joanne" in October 1998. This factual question was not determined by the Appeal Board in its report or recommendation. It was not determined by the Minister in his decision. This was an essential factual determination since, as the Appeal Board observed at the beginning of its report, the Minister had not approved any "new licences" since 1996. If the Applicant was not requesting a new licence but simply the reissuance of a previously held licence, the applicable polices could have affected the Appeal Board's recommendation and the Minister's ultimate decision.
[44] I refer again to Jada Fishing, supra. In that case, the Federal Court of Appeal found that the Appeal Board's recommendation was "inexorably connected" to the Minister's decision and was without legal effect unless "adopted" by the Minister as a basis for his decision. The Court then found that the Appeal Board's recommendation could be challenged in an application for judicial review of the Minister's ultimate decision.
[45] In Jada Fishing, supra, the Minister allowed the appeal. That decision concurred with the recommendation of the Appeal Board. At page 240, the Court noted that the record did not disclose whether the Minister agreed with the Appeal Board's reasons as the decision under review simply stated that the decision had been "based on a thorough review of all available information, and the Panel's recommendation".
[46] In the present case, the decision under review is the Minister's decision, communicated in the letter of September 6, 2002. That letter, after reference to the Appeal Board hearing conducted on April 29, 2002, said that the Minister "has made a decision based on a thorough review of all available information ...". In my opinion, it is reasonable to infer that one basis for the Minister's decision was the report and recommendation of the Appeal Board. This is consistent with the purpose of the Licensing Policy that created the Appeal Board, that the Appeal Board's report and recommendation should inform the Minister's ultimate decision.
[47] It follows, in my opinion, that the Appeal Board's report and recommendation can be reviewed by this Court, as occurred in Jada Fishing, supra, when the Federal Court of Appeal examined the reasonableness of the Appeal Board's recommendation and respect for the requirements of procedural fairness.
[48] In my opinion, the present case raises a question about the manner in which the Appeal Board and then the Minister treated the evidence, rather than an issue about the reasonableness of the decision. The Minister referred the Applicant's case to the Appeal Board. The Appeal Board's mandate was to determine whether the Applicant had been treated fairly in accordance with Departmental policies and whether "extenuating circumstances" existed for deviating from established policies, practices and procedures.
[49] The Appeal Board failed to discharge its mandate, as it merely summarized the material that was presented before it and then made brief recommendations, without addressing the question whether the October 1998 licence for the M.V. "Sandy Joanne" was only an authorization for the use of a replacement vessel under the licence issued for the M.V. "Bear Cove Point", or whether it was a separate and independent licence.
[50] The Applicant raised valid points relative to the factual determination that should have been made by the Appeal Board, in the hearing of April 29, 2002. He said that he had not received any documentation from the Department indicating that the M.V. "Sandy Joanne" was a replacement vessel for the M.V. "Bear Cove Point". The first mention of this was in February 2000. Further, there was no documentation from the Department advising that he was required to bank his groundfish licence for the M.V. "Bear Cove Point" which he was purportedly allowed to use the M.V. "Sandy Joanne" as a temporary replacement vessel, using the licence for the M.V. "Bear Cove Point".
[51] In this judicial review application, the Applicant filed an affidavit that included, as exhibits, copies of the licence issued in 1998 for the M.V. "Bear Cove Point" and for the M.V. "Sandy Joanne". He noted each licence had a different reference number, permitted fishing in different areas and referred to different fishing vessels. He pointed out that neither the Appeal Board's report nor other material relied on by the Minister, including the Harrison memorandum, addressed the vessel replacement practices of the Department.
[52] The failure of the Appeal Board to address the practices and procedures concerning the replacement of one vessel for another, on an existing licence, seriously undermines the Respondent's argument that the Applicant had received only one licence, that is for the M.V. "Bear Cove Point", and the M.V. "Sandy Joanne" was only a replacement vessel. If the Respondent's argument in this regard is correct, the Appeal Board should have addressed the Department's failure to follow the usual procedures for the replacement of a vessel on the earlier licence.
[53] As well, I note that until the letter dated February 24, 2000, the record is silent on the status of the M.V. "Sandy Joanne" on the licence issued for the M.V. "Bear Cove Point".
[54] In conclusion, the application for judicial review will be allowed on the grounds that the decision by the Minister was based on an erroneous finding of fact, arising from a misapprehension by the Appeal Board of the material before it, specifically concerning the status of the M.V. "Sandy Joanne", whether it was operating as a replacement vessel or under an independent licence issued in October 1998.
[55] In light of my conclusion on the failure by the Appeal Board and subsequently the Minister to deal with this factual question, it is not necessary to address the other arguments raised by the parties. In my opinion, since an essential factual determination was not addressed, the decision cannot stand. This is sufficient to quash the decision of the Minister and refer it back for redetermination in accordance with these reasons.
RELIEF SOUGHT
[56] The Applicant set out the following prayer for relief in his application for judicial review:
1. An order setting aside the aforesaid decision of the Minister;
2. An order that the Minister redetermine the request of the Applicant for the reissue of the Exploratory Snow Crab Licence in respect of the M.V. Sandy Joanne on such terms and conditions as this Honourable Court considers just;
3. An order that prior to any redetermination, the Minister direct the Atlantic Fisheries Licence Appeal Board to make a recommendation to the Minister by determining whether, in the context of the Minister's initial refusal to reissue the Applicant's 1998 snow crab licence for subsequent years;
I. the Applicant was treated fairly in accordance with the Department of Fisheries and Oceans licensing policies, practices, or procedures; and
ii. whether there are extenuating circumstances for deviation from established policies, practices, or procedures with regard to the Applicant's request for a reissue of the snow crab licence in question.
4. Its costs in this application; and
5. Such other relief as to this Honourable Court may seem just.
[57] In my opinion, the issuance of an order that the Applicant received a separate licence for the M.V. "Sandy Joanne" in 1998 and did not receive authorization to use that vessel as a replacement vessel for the M.V. "Bear Cove Point", is beyond the jurisdiction of this Court and could invite the criticism delivered by the Federal Court of Appeal in Carpenter Fishing Corp., supra, where the Court said the following at pages 566-567:
They asked the Trial Judge, for all practical purposes, to substitute their own formula to that of the Minister, without any consultation with the industry and without any vote. In complying with their request, the Trial Judge became the Minister for a day and imposed a formula the effect of which on the halibut fishery is unknown and untested. This, clearly, the Trial Judge could not do, even if he had been right in finding the policy invalid; the most he could have done would have been to remit the matter back to the Minister for reconsideration and adoption of a different formula. ...
[58] The Appeal Board and the Minister possess the expertise and authority to determine these issues. However, they have so far failed to apply that expertise in this case.
[59] In the result, the application for judicial review is allowed. The decision of September 6, 2002 is quashed and the matter is remitted to the Minister for redetermination in accordance with these reasons. This does not preclude the Minister, in his discretion, from referring the Applicant's request to a differently constituted Appeal Board to determine the factual issue referred to above, which the original Appeal Board failed to do.
[60] The Applicant shall have his costs to be taxed, on the basis of one counsel.
ORDER
The application for judicial review is allowed. The decision of September 6, 2002 is quashed and the matter is remitted to the Minister for redetermination in accordance with these reasons.
The Applicant shall have his costs to be taxed, on the basis of one counsel.
"E. Heneghan"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1705-02
STYLE OF CAUSE: Thomas J. Fennelly v. Her Majesty the Queen
Minister of Fisheries & Oceans
PLACE OF HEARING: St. John's, Newfoundland and Labrador
DATE OF HEARING: September 2, 2003
REASONS FOR ORDER
AND ORDER: Heneghan, J.
APPEARANCES:
Frederick Constantine
Douglas Wright FOR APPLICANT
Sandra Doucette FOR RESPONDENT
SOLICITORS OF RECORD:
Patterson Palmer
Scotia Centre
235 Water Street, 10th Floor
P.O. Box 610
St. John's NF A1C 5L3 FOR APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada FOR RESPONDENT