Doucette v. Canada (Minister of Fisheries and Oceans), (2015) 482 F.T.R. 244 (FC)

• Judge: O'Keefe, J.
• Court: Federal Court (Canada)
• Case Date: December 11, 2014
• Jurisdiction: Canada (Federal)
• Citations: (2015), 482 F.T.R. 244 (FC);2015 FC 734

Doucette v. Can. (2015), 482 F.T.R. 244 (FC)

MLB headnote and full text

Temp. Cite: [2015] F.T.R. TBEd. JL.006

Henry Doucette (applicant) v. Her Majesty the Queen in Right of Canada as represented by The Minister of Fisheries and Oceans (respondent)

(T-709-14; 2015 FC 734)

Indexed As: Doucette v. Canada (Minister of Fisheries and Oceans)

Federal Court

O'Keefe, J.

June 11, 2015.

Summary:

The applicant applied for judicial review of a decision of the Minister of Fisheries and Oceans not to reissue a snow crab licence to the applicant.

The Federal Court dismissed the application.

Administrative Law - Topic 542

The hearing and decision - Decisions of the tribunal - What constitutes a decision - [See Administrative Law - Topic 2012 ].

Administrative Law - Topic 549

The hearing and decision - Decisions of the tribunal - Reasons for decisions - Sufficiency of - [See Administrative Law - Topic 2012 ].

Administrative Law - Topic 2012

Natural justice - General principles - Effect of denial of natural justice - Shea was Minister of Fisheries and Oceans both before and after Ashfield (she was reappointed after he became ill) - On March 2, 2012, Minister Ashfield rejected the recommendation of the Atlantic Fisheries Licensing Appeal Board (AFLAB) that a snow crab licence be reissued to the applicant - Minister Ashfield's rationale was as follows: "Fisheries and Oceans Canada applies the Commercial Fisheries Licensing Policy for Eastern Canada, 1996 when making decisions with respect to licensing. As per subsection 16(2) of this policy, the issuance of a replacement licence, also commonly referred to as a licence 're-issuance', states that the request must be made by the licence holder. In this case, the Estate of Mr. Vincent Jones has not made a request for the issuance of a replacement licence to you. In recommending the re-issuance of the licences of the Estate of Mr. Vincent Jones to you, the Board failed to consider the decisions made by the New Brunswick Court of Queen's Bench (April 11, 2005) and by the New Brunswick Court of Appeal (April 11, 2006) in the dispute opposing yourself to Mr. Jones [Doucette v. Jones]. It is my understanding that the Courts concluded that the Trust Agreement you entered into with Mr. Jones for the re-issuance of his licences was frustrated, and therefore could not be executed. ..." - The Federal Court judicially reviewed Minister Ashfield's decision and a subsequent decision by Minister Shea not to reconsider Minister Ashfield's decision - The court noted that the applicant had not been informed that both Ministers had used information from Doucette v. Jones in making their decisions - Therefore, he did not get an opportunity to address the alleged inconsistency - The court held that this was a breach of procedural fairness, but the breach was immaterial as the outcome would not have changed based on Fisheries Policy - The applicant at no time had a right to the licence and at no time did Mr. Jones or his Estate request the reissuance of the licence to the applicant while they were both eligible to effectuate such a reissuance - Further, Minister Shea's reason, although brief, sufficiently explained why she refused a reconsideration - This reason also served to explain why she did not follow her alleged promise to adopt the AFLAB's recommendation when she was initially Minister of Fisheries and Oceans (allegedly creating a legitimate expectation); the reason being that Minister Ashfield had thoroughly addressed the matter - See paragraphs 31 and 95 to 105.

Administrative Law - Topic 2266

Natural justice - The duty of fairness - What constitutes procedural fairness - [See Administrative Law - Topic 2012 ].

Administrative Law - Topic 2267

Natural justice - The duty of fairness - Reasonable expectation or legitimate expectation - [See Administrative Law - Topic 2012 ].

Administrative Law - Topic 2451

Natural justice - Procedure - Notice - Effect of lack of notice - [See Administrative Law - Topic 2012 ].

Administrative Law - Topic 3354.3

Judicial review - General - Practice - Application - Limitation re orders sought - [See Courts - Topic 4071.1 ].

Courts - Topic 4071.1

Federal Court of Canada - Jurisdiction - Federal Court - Practice - Judicial review applications - General - On March 2, 2012, the Minister of Fisheries and Oceans (then, Ashfield) rejected the recommendation of the Atlantic Fisheries Licensing Appeal Board that a particular snow crab licence be reissued to the applicant - On November 10, 2013, the applicant visited the Minister of Fisheries and Oceans (now, Shea) at her home to suggest that a specific three person panel reconsider his case - In a letter dated November 27, 2013, Minister Shea wrote that she believed the applicant's matter "has been thoroughly addressed and there is no merit for further review." - At issue on judicial review was, inter alia, which decision was being judicially reviewed - The Federal Court exercised its power under rule 302 of the Federal Court Rules to review both decisions - The court held that Minister Shea's letter was not a "courtesy letter", but a refusal to reconsider - Therefore, it was subject to judicial review within the meaning of the Federal Courts Act - Further, a judicial review of a reconsideration decision could not be thoroughly conducted without looking at the original decision (i.e., Minister Ashfield's decision) - See paragraphs 31 to 38 and 71 to 76.

Crown - Topic 676

Authority of Ministers - Exercise of - Discretionary power - Limitations - Shea was Minister of Fisheries and Oceans both before and after Ashfield (she was reappointed after he became ill) - On March 2, 2012, Minister Ashfield rejected the recommendation of the Atlantic Fisheries Licensing Appeal Board (AFLAB) that a snow crab licence be reissued to the applicant - On November 10, 2013, the applicant visited the Minister of Fisheries and Oceans (now, Shea) at her home to suggest that a specific three person panel reconsider his case - In a letter dated November 27, 2013, Minister Shea wrote that she believed the applicant's matter "has been thoroughly addressed and there is no merit for further review." - On judicial review, the Federal Court held that Minister Ashfield's decision not to reissue the licence was reasonable - "The discretion of the Minister to issue fishing licences is outlined at s. 7 of the Fisheries Act. It must be exercised: i) in accordance with the requirements of natural justice; ii) based on relevant consideration; iii) without arbitrariness; iv) in good faith; v) in accordance with applicable statute or regulations; and vi) in accordance with the provisions of the Charter ... . With respect to the reissuance of a fishing licence, the Fisheries Policy in subsection 16(2) provides the request has to be submitted by the current licence holder." - The alleged promise by Minister Shea to follow the recommendation from the AFLAB did not create a substantive right for a certain result - Second, the licence holder (Mr. Jones or his Estate), did not make the request for reissuance while the applicant and licence holder were both eligible to effectuate it - The applicant's request did not meet the requirement under s. 16(2) of the Fisheries Policy - In refusing the request, Minister Ashfield exercised his discretion in accordance with the law and did not make the decision in bad faith - Third, there was insufficient evidence to show that Department of Fisheries and Oceans misled the applicant respecting the residency requirement as he alleged; and, even if established, this judicial review application was not an appropriate forum to adjudicate the issue - Minister Shea's decision not to reconsider Minister Ashfield's decision was also reasonable - She could not fetter her or Minister Ashfield's discretion by agreeing to follow the AFLAB's recommendation - The court declined the respondent's request for costs because of the difficulties the applicant had encountered in this matter and the factual history of the case - See paragraphs 106 to 122.

Fish and Game - Topic 239

Right to fish - Licensing - Transfer - [See Crown - Topic 676 ].

Practice - Topic 7029.8

Costs - Party and party costs - Entitlement to party and party costs - Successful party - Exceptions - Situation of unsuccessful party - [See Crown - Topic 676 ].

Cases Noticed:

Doucette et al. v. Jones (2005), 291 N.B.R.(2d) 38; 758 A.P.R. 38; 2005 NBQB 144 (T.D.), affd. (2006), 299 N.B.R.(2d) 288; 778 A.P.R. 288; 2006 NBCA 38, consd. [paras. 20].

Maple Lodge Farms Ltd. v. Canada and Canada (Minister of Economic Development), [1982] 2 S.C.R. 2; 44 N.R. 354, refd to. [para. 45].

Comeau's Sea Foods Ltd. v. Canada (Minister of Fisheries and Oceans), [1997] 1 S.C.R. 12; 206 N.R. 363, refd to. [para. 46].

Mount Sinai Hospital Center et al. v. Quebec (Minister of Health and Social Services), [2001] 2 S.C.R. 281; 271 N.R. 104; 2001 SCC 41, refd to. [para. 49].

Bancarz v. Canada (Minister of Transport) (2007), 312 F.T.R. 113; 157 A.C.W.S.(3d) 5; 2007 FC 451, refd to. [para. 49].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 53].

Apotex Inc. v. Merck & Co. and Merck Frosst Canada Inc., [1994] 1 F.C. 742; 162 N.R. 177 (F.C.A.), refd to. [para. 55].

Philipps v. Librarian and Archivist of Canada (2006), 303 F.T.R. 84; 157 A.C.W.S.(3d) 232; 2006 FC 1378, refd to. [para. 59].

Malcolm v. Canada (Minister of Fisheries and Oceans) et al. (2014), 460 N.R. 357; 2014 FCA 130, refd to. [para. 61].

Mainville et al. v. Canada (Attorney General) (2007), 310 F.T.R. 100; 2007 FC 251, refd to. [para. 61].

Pacific National Investments Ltd. v. Victoria (City) et al., [2000] 2 S.C.R. 919; 263 N.R. 1; 144 B.C.A.C. 203; 236 W.A.C. 203; 2000 SCC 64, refd to. [para. 64].

Andrews et al. v. Canada (Attorney General) (2009), 292 Nfld. & P.E.I.R. 175; 902 A.P.R. 175; 2009 NLCA 70, refd to. [para. 64].

Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) et al. (2013), 446 N.R. 65; 2013 SCC 36, refd to. [para. 66].

Arsenault et al. v. Canada (Attorney General) (2009), 395 N.R. 223; 2009 FCA 300, refd to. [para. 68].

Canada (Attorney General) v. TeleZone Inc. - see TeleZone Inc. v. Canada (Attorney General).

TeleZone Inc. v. Canada (Attorney General) (2010), 410 N.R. 1; 273 O.A.C. 1; 2010 SCC 62, refd to. [para. 69].

Statutes Noticed:

Federal Courts Rules, 1998, rule 302 [para. 72, Appendix].

Fisheries Act, R.S.C. 1985, c. F-14, sect. 7 [para. 46, Appendix].

Counsel:

Christian E. Michaud and S. Clifford Hood, Q.C., for the applicant;

Lori Rasmussen and M. Paul Marquis, for the respondent.

Solicitors of Record:

Cox & Palmer, Moncton, New Brunswick, for the applicant;

William F. Pentney, Deputy Attorney General of Canada, Halifax, Nova Scotia, for the respondent.

This application was heard on December 11, 2014, at Charlottetown, P.E.I., by O'Keefe, J., of the Federal Court, who delivered the following decision at Ottawa, Ontario, on June 11, 2015.