Association des crevettiers acadiens du Golfe Inc. et al. v. Canada (Attorney General), 2011 FC 305

• Judge: Bédard, J.
• Court: Federal Court (Canada)
• Case Date: December 14, 2010
• Jurisdiction: Canada (Federal)
• Citations: 2011 FC 305;(2011), 385 F.T.R. 302 (FC)

Assoc. Crevettiers Acadiens v. Can. (A.G.) (2011), 385 F.T.R. 302 (FC)

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Temp. Cite: [2011] F.T.R. TBEd. MR.031

Association des crevettiers acadiens du Golfe Inc., corporation dûment constituée en vertu des lois du Nouveau-Brunswick, Michel Légère en son nom personnel et ès qualité de représentant de l'Association des crevettiers acadiens du Golfe Inc., Association des pêcheurs de crevette de Matane Inc., une corporation dûment constituée en vertu des lois du Québec, Pierre Cantin en son nom personnel et ès qualité de représentant de l'Association des pêcheurs de crevette de Matane Inc., et Oneil Bond (demandeurs) v. Procureur général du Canada (défendeur)

(T-725-08; 2011 CF 305; 2011 FC 305)

Indexed As: Association des crevettiers acadiens du Golfe Inc. et al. v. Canada (Attorney General)

Federal Court

Bédard, J.

March 14, 2011.

Summary:

The applicants, shrimp harvesters' associations and their representatives, applied for judicial review of the adoption and implementation of certain aspects of the 2008 Gulf of St. Lawrence shrimp harvesting plan by the Minster of Fisheries and Oceans. The applicants challenged an allocation to "core" fishers in Prince Edward Island and Nova Scotia (groundfish and lobster harvesters) and another allocation to groundfish harvesters in New Brunswick and Quebec.

The Federal Court dismissed the application.

Administrative Law - Topic 571

The hearing and decision - Decisions of the tribunal - Academic or moot matters - The applicants, shrimp harvesters' associations and their representatives, applied for judicial review of the adoption and implementation of certain aspects of the 2008 Gulf of St. Lawrence shrimp harvesting plan by the Minster of Fisheries and Oceans - The applicants challenged an allocation to "core" fishers in Prince Edward Island and Nova Scotia (groundfish and lobster harvesters) and another allocation to groundfish harvesters in New Brunswick and Quebec - The respondent argued that the 2008 harvesting plan and the fishing licences issued for the 2008 fishing season were no longer of any effect because the fishing season ended long ago - Consequently, these proceedings were moot and the court should not exercise it discretion to hear the case on the merits - The Federal Court held that the issues raised in this application were moot, but the court should exercise its discretion to decide the matter - Because of the limited duration of an annual harvesting plan and the delays associated with the judicial process, it was almost impossible to decide an application for judicial review while the harvesting plan was still in effect - Although moot, the issues raised interesting questions that might arise again in respect of another harvesting plan and that would in all likelihood always be moot by the time the court was asked to decide an application for judicial review - This situation would have the illogical consequence of immunizing all annual harvesting plans against judicial review - See paragraphs 16 to 21.

Administrative Law - Topic 3202

Judicial review - General - Scope or standard of review - The applicants, shrimp harvesters' associations and their representatives, applied for judicial review of the adoption and implementation of certain aspects of the 2008 Gulf of St. Lawrence shrimp harvesting plan by the Minster of Fisheries and Oceans - The applicants challenged an allocation to "core" fishers in Prince Edward Island and Nova Scotia (groundfish and lobster harvesters) and another allocation to groundfish harvesters in New Brunswick and Quebec - The applicants asserted that the application could validly challenge both the harvesting plan and the licences subsequently issued under it, without contravening Federal Court Rule 302 - The Federal Court rejected the assertion, holding that "The harvesting plan is a statement, an announcement by the Minister of the parameters he intends to apply to the management of a fishery for a given year. This plan, which is within the Minister's general jurisdiction over fisheries management, is not binding on the Minister and should not impinge on the discretion he subsequently exercises when deciding to issue a fishing licence. ... Therefore, in the present case, the harvesting plan should be distinguished from the fishing licences issued thereunder, and this application cannot challenge both the harvesting plan and the fishing licences on the basis that they are part of the continuum of the same decision. The decision to adopt a harvesting plan and the decision to issue a fishing licence are different decisions, based on different considerations and made pursuant to distinct powers. Moreover, the harvesting plan announced by the Minister is not static; it can be amended by the Minister and cannot be binding on him when he later decides to issue fishing licences." - Accordingly, the application for judicial review had to be limited to the adoption of the harvesting plan - See paragraphs 22 to 29.

Administrative Law - Topic 3202

Judicial review - General - Scope or standard of review - The applicants, shrimp harvesters' associations and their representatives, applied for judicial review of the adoption and implementation of certain aspects of the 2008 Gulf of St. Lawrence shrimp harvesting plan by the Minster of Fisheries and Oceans - The applicants challenged an allocation to "core" fishers in Prince Edward Island and Nova Scotia (groundfish and lobster harvesters) and another allocation to groundfish harvesters in New Brunswick and Quebec - The applicants asserted that the application could validly challenge both the harvesting plan and the licences subsequently issued under it, without contravening Federal Court Rule 302 - The Federal Court rejected the assertion - First, if the application was viewed as challenging the fishing licences issued after the harvesting plan was adopted, then it was deficient in several respects - It should have stated the date and details of each licence the applicants sought to have cancelled and should have joined as respondents all persons affected by the order sought, in this case, the fishers' associations and persons other than traditional shrimp harvesters to whom the Minister issued fishing licences - The applicants' record should also have contained a copy of each licence challenged in the application - Further, rule 302 provided that an application for judicial review "shall be limited to a single order in respect of which relief is sought, unless the Court orders otherwise" - The applicants never filed a motion seeking the court's authorization to have the review application challenge both the harvesting plan and the fishing licences - Accordingly, the application for judicial review had to be limited to the adoption of the harvesting plan - See paragraphs 30 to 35.

Crown - Topic 685

Authority of ministers - Exercise of - Administrative decisions - Appeals or judicial review - [See both Administrative Law - Topic 3202 and both Fish and Game - Topic 164.1 ].

Fish and Game - Topic 164.1

Fisheries - Regulation - Management plans - The applicants, shrimp harvesters' associations and their representatives, applied for judicial review of the adoption and implementation of certain aspects of the 2008 Gulf of St. Lawrence shrimp harvesting plan by the Minster of Fisheries and Oceans - The applicants challenged an allocation to "core" fishers in Prince Edward Island and Nova Scotia (groundfish and lobster harvesters) and another allocation to groundfish harvesters in New Brunswick and Quebec - The applicants asserted that the Minister failed to give reasons for his decision to amend the harvesting plan, thereby making an arbitrary decision - The Federal Court dismissed the application - The court considered the overall context in which the initial plan was announced and the discussions leading to the amendment and found that the Minister did provide reasons for his decision and that it was in no way arbitrary - The considerations on which the decision was based were amply demonstrated by the documentary evidence, by Couillard's affidavit and by his cross-examination on affidavit - See paragraphs 42 to 53.

Fish and Game - Topic 164.1

Fisheries - Regulation - Management plans - The applicants, shrimp harvesters' associations and their representatives, applied for judicial review of the adoption and implementation of certain aspects of the 2008 Gulf of St. Lawrence shrimp harvesting plan by the Minster of Fisheries and Oceans - The applicants challenged an allocation to "core" fishers in Prince Edward Island and Nova Scotia (groundfish and lobster harvesters) and another allocation to groundfish harvesters in New Brunswick and Quebec - The applicants asserted that the Minister unlawfully made fishing allocations to groundfish harvesters to fund the groundfish fishery program - The Federal Court dismissed the application - The applicable standard of review was reasonableness - Thus, the court would not intervene in the absence of bad faith, non-conformity with the principles of natural justice where their application was required by statute, or reliance placed upon considerations that were irrelevant or extraneous to the purpose of the Fisheries Act - There was no evidence of bad faith, and no principles of natural justice had been violated - The applicants failed to satisfy the court that the terms set out in the harvesting plan had been adopted on the basis of considerations that were irrelevant or extraneous to the purpose of the legislation - There was no evidence that the measures adopted for 2008 were unreasonable - On the contrary, the evidence showed that they were based on considerations that were relevant and consistent with the purposes of the Fisheries Act and the Department of Fisheries and Oceans Act - See paragraphs 54 to 69.

Cases Noticed:

Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; 92 N.R. 110; 75 Sask.R. 82; 38 C.R.R. 232; 57 D.L.R.(4th) 231, refd to. [para. 17].

Area Twenty Three Snow Crab Fisher's Association et al. v. Canada (Attorney General) et al. (2005), 279 F.T.R. 137; 2005 FC 1190, refd to. [para. 18].

Native Council of Nova Scotia v. Canada (Attorney General) (2007), 306 F.T.R. 294; 2007 FC 45, refd to. [para. 18].

Arsenault et al. v. Canada (Attorney General) (2009), 395 N.R. 223; 1 Admin. L.R.(5th) 91; 2009 FCA 300, refd to. [para. 23].

Larocque v. Canada (Minister of Fisheries and Oceans) (2006), 352 N.R. 133; 270 D.L.R.(4th) 552 (F.C.A.), refd to. [para. 54].

Maple Lodge Farms Ltd. v. Canada et al., [1982] 2 S.C.R. 2; 44 N.R. 354, refd to. [para. 56].

Carpenter Fishing Corp. et al. v. Canada (Minister of Fisheries and Oceans) et al., [1998] 2 F.C. 548; 221 N.R. 372; 155 D.L.R.(4th) 572 (F.C.A.), refd to. [para. 58].

Mainville et al. v. Canada (Attorney General) (2009), 398 N.R. 249; 2009 FCA 196, refd to. [para. 59].

Comeau's Sea Foods Ltd. v. Canada (Minister of Fisheries and Oceans), [1997] 1 S.C.R. 12; 206 N.R. 363; 142 D.L.R.(4th) 193, refd to. [para. 65].

Association des Senneurs du Golfe Inc. et al. v. Canada (Ministre des Pêches et Océans) et al. (1999), 175 F.T.R. 25; 1999 CanLII 8744 (T.D.), affd. (2001), 288 N.R. 1; 2001 FCA 276, refd to. [para. 67].

Counsel:

David Quesnel and Patrick Ferland, for the applicants;

Jean-Robert Noiseux, for the respondent.

Solicitors of Record:

Heenan Blaikie s.e.n.c.r.l., Montreal, Quebec, for the applicants;

Miles J. Kirvan, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard on December 14, 2010, at Montreal, Quebec, by Bédard, J., of the Federal Court, who delivered the following judgment at Ottawa, Ontario, on March 14, 2011.