Date: 20061013

Dossier: T-1502-06

Citation: 2006 FC 1208

TORONTO, ONTARIO, October 13, 2006

Present: The Honourable Mr. Justice von Finckenstein

BETWEEN:

Jean-Gilles Chiasson, Marc Couture, Pêcheries Jean-Yan II Inc., Aurélien Haché,

Robert F. Haché, Estate of Richard Allain, Roland Anglehart Jr., Bernard

Arseneault, Héliodore Aucoin, Albert Benoît, Robert Boucher, Elide Bulger, Gérard

Cassivi, Ludger Chiasson, Martin M. Chiasson, Rémi Chiasson, Jacques Collin,

Robert Colin, Roméo G. Cormier, 2973-0813 Quebec Inc., 3087-5199 Quebec Inc., Les Crustacées de Gaspé Ltée., 2973-1288 Quebec Inc., 3087-5199 Quebec Inc., Lino

Desbois, Donald Duguay, Denis Duguay, Carol Duguay, Marius Duguay, Charles-

Aimé Duguay, Randy Deveau, Cyrenus Dugas, Edgar Ferron, Livain Foulem, Simon

J. Gionet, Jocelyn Gionet, Claude Gionest, Aurèle Godin, Gregg Hinkley, Jean-Pierre

Huard, Donald R. Haché, Guy Haché, Jacques E. Haché, Jean-Pierre Haché

Jacques A. Haché, Jason-Sylvain Haché, Estate of Sylva Haché, Gaëtan

Haché, Rhéal Haché, Alban Hautcoeur, Fernand Hautcoeur, Jean-Claude

Hautcoeur, Vincent Jones, Réjean Leblanc, Christian Lelièvre, Elphège Lelièvre,

Jean-Elie Lelièvre, Jules Lelièvre, Dassise Mallet, Delphis Mallet, Francis Mallet,

Odile Mallet, Jean-Marc Marcoux, André Mazerolle, Eddy Mazerolle, Gilles A. Noël,

Lévis Noël, Serge Noël, Onésime Noël, Nicolas Noël, Martin Noël, Raymond Noël,

Francis Parisé, Domitien Paulin, Sylvain Paulin, Claude Poirier, Les Pêcheries,

Serge-Luc Inc., Pêcheries Ray-L Inc., Pêcheries FACEP Inc., Pêcheries Denise,

Quinn Syvrais Inc., Pêcheries François Inc., Pêcheries J.V.L. Ltée., Pêcheries Jimmy

L. Ltée., Bell Bay Products Ltd., Roger Pinel, Estate of Jean-Pierre Robichaud,

Adrien Roussel, Jean-Camille Roussel, Mathias Roussel, Steven Roussy, Mario

Savoie, Jean-Marc Sweeney, Michel Turbide, Réal Turbide, Donat Vienneau,

Fernand Vienneau, Livain Vienneau, Rhéal Vienneau

Applicants 

(Respondents in the motion)

and

 

ATTORNEY GENERAL OF CANADA

                                                                                                                                        Respondent

(Moving party in the motion)

 

REASONS FOR ORDER AND ORDER

 

[1]               The moving party filed this motion to strike the notice of application filed on August 31, 2006.

[2]               The facts are as follows:

(a)                On March 30, 2006, the Minister of Fisheries and Oceans exercised his discretionary fisheries management power by issuing a snow crab fishing management plan for the Southern Gulf of the Saint-Lawrence.

 

(b)               According to this decision by the Minister, the Total Allowable Catch (hereinafter TAC) of 25,682 metric tons was to be distributed among the fishery’s different fleets.  According to the sharing formula provided in the Minister’s decision, the traditional fleet, including the respondents, would receive 65.182% of the TAC.

 

(c)                Also, according to the Minister’s decision of March 30, 2006, an amount of $37.4 million from the Marshall Response Initiative fund would be distributed among the fishers of the traditional fleet in order to compensate for the expropriation of part of their individual crab quota set aside for First Nations.

 

(d)               On July 12, 2006, the applicants’ counsel sent a letter to the Minister of Fisheries and Oceans in which she requested, inter alia, a payment in the amount of $1,798,825 (in connection with the presumed “sale” of 1,000 MT of crab) for the benefit of her clients, as well as the distribution of the amount of $37.4 million.

 

(e)                On July 18, the undersigned responded to the letter from the applicants’ counsel, indicating that the Department could not accede to the request for a payment of $1,798,825, and discussed in general terms the distribution of the $37.4 million in financial assistance.

 

(f)                 Faced with this refusal, the respondents filed on August 16, 2006, a notice of application for judicial review seeking declaratory relief as well as an order of mandamus.

 

[3]               The motion to strike raises the following issues:

(a)                If several decisions are challenged, does the application for judicial review comply with section 302 of the Federal Courts Rules?

 

(b)               If the decision is the decision announced on March 30, 2006, are the respondents outside the time limits prescribed to file their application under subsection 18.1(2) of the Federal Courts Act?

 

(c)                Should the Federal Court strike the application for judicial review on a preliminary motion?

 

 

(a)        Section 302 

[4]               Section 302 of the Federal Courts Rules reads as follows:

 

[5]               The four substantive objectives of the application in this case are as follows:

(a)                Declaration that the Minister used or sold 1,000 MT of snow crab to unlawfully finance the Department’s research activities.

 

(b)               Declaration that the Minister is unlawfully withholding the proceeds of sale of 1,000 MT of snow crab sold in 2006 to the Association des Pêcheurs de Poissons de Fonds Acadiens Inc. (APPFA).

 

(c)                A writ of mandamus forcing the Minister or his officials to remit to the applicants the unlawfully withheld money in proportion to the percentage of the Total Allowable Catch (TAC) allocated to each applicant in accordance with the sharing formula established in 1990.

 

(d)               A writ of mandamus forcing the Minister or his officials to implement the decision to distribute, without requiring a waiver, the amount of 37.4 million dollars among the traditional fishers in proportion to the percentage of the TAC allocated to each applicant according to the formula established in 1990.

 

[6]               Obviously, the first three points relate to the sale of 1,000 MT of snow crab (unlawful, according to the applicants). With respect to the fourth, it relates to the Marshall Response Initiative. They are two different matters. The only connection between the fourth point and the three first points is the use of the same percentage to distribute among the applicants the proceeds of sale of the 1,000 MT of snow crab and the amount of 37.4 million dollars from the Marshall Response Initiative Fund.

[6]

[7]               The connection is superficial. The two decisions at issue were not made at the same time. The source of these two amounts does not result from the same circumstances or the same facts. This situation does not satisfy the conditions prescribed by Truehope Nutritional Support v. Canada [2004] F.C.J. No. 806, paragraph 6. Accordingly, points 1 to 3 of the application must be the subject of an application for judicial review different from the application for judicial review for point 4.

 

(a)               Thirty-day time limit

[8]               The moving party argues the following:

[translation]

(a)                 As stated earlier, the application seems to actually bear not on the letter of July 18, 2006, but rather on: (i) the use or the sale of 1,000 MT of snow crab to finance the Department’s research activities; (ii) withholding from the APPFA the proceeds of sale for the 1,000MT of snow crab;  (iii) the execution of the decision to distribute the sum of 37.4 million dollars.

 

(b)                 At this time, the evidence in the record does not specifically indicate when this decision regarding the use and sale of 1,000 MT of snow crab was made (Note: applicants’ wording with which the moving party does not necessarily agree).  However, the affidavit of Jean-Gilles Chiasson indicates that the respondents were aware of this decision well before July 18, 2006, such date that the respondents would have been within the 30-day time limit provided under subsection 18.1(2) of the Federal Courts Act to file an application for judicial review.

 

(c)                 The following excerpts from the affidavit of Jean-Gilles Chiasson, already filed in the Court record, state the applicants’ positions with regard to when the decision was made:

 

(i)             July 12, 2006, On behalf of the fishers belonging to the four crabbers’ associations, including the ACA, which I represent, Brigitte Sivret sent a request to James B. Jones, Director General of the Department of Fisheries and Oceans for the Gulf region, asking that the amount of 1.9 million dollars obtained through the unlawful sale of 1,000 MT of snow crab (from the TAC established for 2006) be remitted to the fishers in accordance with each fisher’s percentage as established in 1990. Attached to this affidavit, marked “B” is a copy of this letter that was sent to Mr. Jones.

 

(ii)           On March 30, 2006, the Honourable Loyola Hearn, Minister of Fisheries and Oceans, announced his snow crab management plan for the 2006 season. According to that plan, the Minister established the TAC for all of the fleets at 25,869 MT and this TAC was to be distributed as follows:

 

            - The traditional fleet: 65.182%

            - First Nations: 15.816%

            - Area 18 fishers: 4.002%

            - Other fleets: 15%

 

(iii)          Before proceeding with this distribution, the MFO, Gulf Region, first sold 1,000 MT of the 25,869 MT TAC to the Association des Pêcheurs de Poissons de Fond (hereinafter the APPFA) in exchange foe an amount of scientific research.

 

(d)                 According to the applicants’ evidence, the alleged decision to “sell” 1,000 MT of snow crab to the APPFA, was made, in their opinion, before proceeding to distribute the TAC announced on March 30, 2006.  The respondents were aware of this alleged decision well before July 18, but certainly before July 12, when the letter from their counsel, Ms. Sivret, had been sent.

 

(e)                 The respondents are therefore outside the 30-day time limit provided under the Federal Courts Act and cannot file an application for judicial review without obtaining leave from the Court, which was not done. This application for judicial review must therefore be struck on this point or, at the very least, a motion for extension of time should be filed in proper form, and the moving party should have the chance to adequately respond to it.

 

Motion record of Respondent (Moving party)

pages 11-14

 

[9]               Even if these dates are correct and if the prescribed time limits were violated, this would not be sufficient reason to strike the application. Without evidence of prejudice established by the moving party, the Court may grant an extension of time to the applicants, and will probably do so. All of these allegations are really preliminary points. As Strayer J.A. explained in David Bull Laboratories Inc. v. Pharmacia Inc. (1995) 1 F.C. 588, at paragraph 11:

. . . Thus, the direct and proper way to contest an originating notice of motion which the respondent thinks to be without merit is to appear and argue at the hearing of the motion itself.

 

 

 

(c)        Striking a judicial review on a preliminary motion

[10]           The case law on this issue is well established in David Bull Laboratories, supra, where Strayer J.A. established the general principle:

11.           The basic explanation for the lack of a provision in the Federal Court Rules for striking out notices of motion can be found in the differences between actions and other proceedings. An action involves, once the pleadings are filed, discovery of documents, examinations for discovery, and then trials with viva voce evidence. It is obviously important that parties not be put to the delay and expense involved in taking a matter to trial if it is "plain and obvious" (the test for striking out pleadings) that the pleading in question cannot amount to a cause of action or a defence to a cause of action. Even though it is important both to the parties and the Court that futile claims or defences not be carried forward to trial, it is still the rare case where a judge is prepared to strike out a pleading under Rule 419. Further, the process of striking out is much more feasible in the case of actions because there are numerous rules which require precise pleadings as to the nature of the claim or the defence and the facts upon which it is based. There are no comparable rules with respect to notices of motion. Both Rule 319(1) [as am. by SOR/88-221 , s. 4], the general provision with respect to applications to the Court, and Rule 1602(2) [as enacted by SOR/92-43 , s. 19], the relevant rule in the present case which involves an application for judicial review, merely require that the notice of motion identify "the precise relief" being sought, and "the grounds intended to be argued." The lack of requirements for precise allegations of fact in notices of motion would make it far more risky for a court to strike such documents. Further, the disposition of an application commenced by originating notice of motion does not involve discovery and trial, matters which can be avoided in actions by a decision to strike. In fact, the disposition of an originating notice proceeds in much the same way that an application to strike the notice of motion would proceed: on the basis of affidavit evidence and argument before a single judge of the Court. Thus, the direct and proper way to contest an originating notice of motion which the respondent thinks to be without merit is to appear and argue at the hearing of the motion itself.

 

[11]           But Strayer J.A. also stated the exception at paragraph 15:

. . . This is not to say that there is no jurisdiction in this Court either inherent or through Rule 5 by analogy to other rules, to dismiss in summary manner a notice of motion which is so clearly improper as to be bereft of any possibility of success. [See Note 10 below] Such cases must be very exceptional and cannot include cases such as the present where there is simply a debatable issue as to the adequacy of the allegations in the notice of motion.

 

 

[12]           In Ominayak v. Lubicon Lake Indian Nation Election (Returning Officer) [2000] F.C.J. No. 247 Reed J. elaborated this idea:

5.             Counsel also asserts that the application should be struck because no practical consequences can flow from quashing Ms. Venne's decision. He argues that the evidence filed by the applicants only shows that five individuals were not allowed to vote, and since those who were elected, were elected by more than 5 votes, there are no practical consequences. That is a matter for consideration by the judge hearing the application on the merits. There is authority that the proper way to contest an application is to appear and argue at the hearing of the application rather than bringing a motion to strike. The decision in David Bull Laboratories (Can.) Inc. v. Pharmacia Inc., [1995] 1 F.C. 588, 176 N.R. 48 (sub. nom. Pharmacia Inc. v. Canada (Min. of National Health & Welfare)), 58 C.P.R. (3d) 209 (C.A.) was annotated in Sgayias, Kinnear, Rennie, Saunders, Federal Court Practice, 2000, at page 153, as follows:

 

The proper way to contest an originating notice of motion, which a respondent thinks to be without merit, is to appear and argue at the hearing of the motion itself rather than to bring a motion to strike. While the Court has the jurisdiction to dismiss in a summary manner an originating notice of motion that is so clearly improper as to be bereft of any possibility of success, such cases must be very exceptional.

 

 

[13]           Without having the facts and circumstances well established for the two decisions in question, namely:

(a)                The decision not to distribute the amount of $1,798,825, obtained from the sale of 1,000 MT of the snow crab TAC;

 

(b)               The decision to require a waiver before distributing the $37.4 million in Marshall Response Initiative funds;

 

 

I do not see how I can determine, based solely on the moving party’s allegations, that the motion is [translation] “so irregular that it is completely frivolous”.

 

[14]           In my opinion, this kind of determination must be made by the judge on the merits, based on the sworn statements and arguments of the parties.

 

(d)        Costs

[15]           Given that neither party was completely successful in this motion, there will be no order on costs.

 

Conclusion

[16]           In conclusion, this motion to strike cannot succeed but the application for judicial review must be amended and divided in two. The Attorney General will be given an extension of time so that he may file his record and the sworn statement required under section 307 of the Rules.

 

ORDER

 

THE COURT ORDERS that

(1)                  The application for judicial review must be divided in two:

(a)        one on the distribution of the amount of $1,798,825, received for the sale of 1,000 MT of the snow crab TAC;

(b)       one on the decision to require a waiver before distributing the $37.4 million in Marshall Response Initiative funds;

(2)                The applicants have 10 days to issue and file these two new applications for judicial review;

(3)                The Attorney General is granted an extension of time so that he can file his sworn statement pursuant to section 307 of the Rules;

(4)                There is no order on costs.

 

 

“Konrad W. von Finckenstein”

Certified true translation

Kelley A. Harvey, BCL, LLB

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

 

DOCKET:                                          T-1502-06

 

STYLE OF CAUSE:                          Chiasson et al. v. Attorney General of Canada

 

PLACE OF HEARING:                    Fredericton (New Brunswick)

 

DATE OF HEARING:                      October 2, 2006

 

REASONS FOR ORDER

AND ORDER:                                   MR. JUSTICE VON FINCKENSTEIN

 

DATE OF REASONS:                      October 13, 2006

 

 

 

APPEARANCES:

 

Brigitte Sivret	FOR THE APPLICANTS
Dominique Gallant	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

Brigitte Sivret Bathurst, New Brunswick	FOR THE APPLICANTS
John H. Sims, Q.C. Deputy Attorney General of Canada	FOR THE RESPONDENT