Goodwin et al. v. Canada (Attorney General) et al., (2005) 279 F.T.R. 100 (FC)

• Judge: Mosley, J.
• Court: Federal Court (Canada)
• Case Date: May 03, 2005
• Jurisdiction: Canada (Federal)
• Citations: (2005), 279 F.T.R. 100 (FC);2005 FC 1185

Goodwin v. Can. (A.G.) (2005), 279 F.T.R. 100 (FC)

MLB headnote and full text

Temp. Cite: [2005] F.T.R. TBEd. SE.008

Joel Wayne Goodwin, of Melbourne, in the County of Yarmouth, Province of Nova Scotia, and Derek Patrick D'Entremont, of Middle West Pubnico, in the said County (applicants) v. The Attorney General of Canada for The Minister of Fisheries and Oceans of Canada (respondent)

(T-486-04; 2005 FC 1185)

Indexed As: Goodwin et al. v. Canada (Attorney General) et al.

Federal Court

Mosley, J.

August 30, 2005.

Summary:

The applicants applied for judicial review of a decision of the Minister of Fisheries and Oceans respecting the length of vessels used in the lobster fishery during the 2004-2005 fishing season.

The Federal Court dismissed the application. The application was both out of time and without merit.

Administrative Law - Topic 2274

Natural justice - The duty of fairness - Exceptions - Legislative acts - [See first Fish and Game - Topic 229 ].

Administrative Law - Topic 3205.1

Judicial review - General - Policy statements - Longstanding Department of Fisheries and Oceans (DFO) policy prohibited lobster boats in Lobster Fishing Area 34 from exceeding an overall hull length of 13.7 meters - Following complaints by fishers that the policy was not being enforced, the DFO revised the policy so as to permit temporary extensions to a maximum of 1.5 meters - The applicants applied for judicial review - The Federal Court applied the pragmatic and functional analysis to the limited question of whether the DFO had jurisdiction under the Fisheries Act to engage in decision-making and held that the appropriate standard of review was correctness - The decision in this case was discretionary, polycentric, and largely political in nature - The expertise of the Minister and departmental officials in determining matters of fishery regulation was greater than that of the court and warranted considerable deference - To the extent that the question in issue consisted of a finding of fact, the standard was patent unreasonableness - See paragraphs 16 to 25.

Administrative Law - Topic 3342

Judicial review - General - Practice - Limitation period - Longstanding Department of Fisheries and Oceans (DFO) policy prohibited lobster boats in Lobster Fishing Area (LFA) 34 from exceeding an overall hull length of 13.7 meters - Following complaints by fishers that the policy was not being enforced, the DFO revised the policy so as to permit temporary extensions to a maximum of 1.5 meters - In June 2003, the revised policy was announced by way of press release - In March 2004, DFO sent letters of the LFA 34 fleet reiterating the licensing conditions in the revised policy - The applicants applied for judicial review - The Federal Court dismissed the application - The application was out of time where it was not filed with the 30 day limitation period after the June 2003 decision (Federal Courts Act, s. 18.1(2)) - The applicants' argument that they were justified in waiting for the "detailed document" (the March 2004 letter) was not tenable in light of the fact that they did nothing to change their application to reflect the licence conditions issued - In any event, waiting for the information before filing the application for judicial review was analogous to waiting for the reasons supporting a decision - That in itself was not sufficient reason to justify failing to file a timely application - See paragraphs 29 to 37.

Administrative Law - Topic 3348

Judicial review - General - Practice - Time for application - [See Administrative Law - Topic 3342 ].

Crown - Topic 683

Authority of Ministers - Exercise of - Policy statements - Judicial review - [See Administrative Law - Topic 3205.1 and first Fish and Game - Topic 229 ].

Fish and Game - Topic 165

Fisheries - Regulation - Appeals or judicial review (incl. standard of review) - [See Administrative Law - Topic 3205.1 and Administrative Law - Topic 3342 ].

Fish and Game - Topic 229

Right to fish - Licensing - Conditions of licence - Vessel size - Longstanding Department of Fisheries and Oceans (DFO) policy prohibited lobster boats in Lobster Fishing Area 34 from exceeding an overall hull length of 13.7 meters - Following complaints by fishers that the policy was not being enforced, the DFO revised the policy so as to permit temporary extensions to a maximum of 1.5 meters - The applicants applied for judicial review - They argued that the Minister had exceeded his jurisdiction - The Federal Court dismissed the application - Discretionary policy decisions could only be reviewed in the following circumstances: bad faith, breach of natural justice or reliance upon considerations that were irrelevant or extraneous - The applicants had not made express or unequivocal allegations of bad faith - The change of the vessel length policy was more in the nature of a legislative act than an administrative decision - Minimal natural justice considerations applied to such decisions and there was no basis upon which to conclude that the applicants were denied procedural fairness - Finally, the decision did not appear to have been made entirely or predominantly on irrelevant or extraneous considerations - See paragraphs 38 to 49.

Fish and Game - Topic 229

Right to fish - Licensing - Conditions of licence - Vessel size - Longstanding Department of Fisheries and Oceans (DFO) policy prohibited lobster boats in Lobster Fishing Area 34 from exceeding an overall hull length of 13.7 meters - Following complaints by fishers that the policy was not being enforced, the DFO revised the policy so as to permit temporary extensions to a maximum of 1.5 meters - The applicants applied for judicial review - They argued that as owners of nonconforming vessels they had acquired rights to use boats that they had constructed or modified and put into service to fish for lobster during the period when the vessel length policy was not enforced - The Federal Court dismissed the application - Describing a policy decision as being in the nature of a legislative act did not necessarily import principles of statutory construction to the analysis of the validity of that decision - However, even assuming that the presumption against retrospective effect applied to policy decisions, vested rights were not acquired in the context of fishing licenses, as a new license had to be obtained each year - See paragraphs 50 to 54.

Fish and Game - Topic 229

Right to fish - Licensing - Conditions of licence - Vessel size - Longstanding Department of Fisheries and Oceans (DFO) policy prohibited lobster boats in Lobster Fishing Area (LFA) 34 from exceeding an overall hull length of 13.7 meters - Following complaints by fishers that the policy was not being enforced, the DFO revised the policy so as to permit temporary extensions to a maximum of 1.5 meters - In June 2003, the revised policy was announced by way of press release - In March 2004, DFO sent letters to the LFA 34 fleet reiterating the licensing conditions in the revised policy - The applicants applied for judicial review - They argued that the licence conditions as communicated to the fishers in the March 2004 letter did not conform to the recommendations that the Minister signed off on, nor did they conform to the recommendation of the LFA 34 Advisory Committee - Neither the Minister nor the Advisory Committee mentioned that permitted extensions would not include underwater tank extensions but the licence conditions did not allow for them - The Federal Court dismissed the application - The proposed licence conditions were consistent with the Minister's decision - The intent of the decision was to limit the overall length of vessels - The effect of the underwater stern tanks forming an integral part of the hull was to extend the overall length of the vessels beyond the limit permitted - See paragraphs 55 to 59.

Statutes - Topic 2263

Interpretation - Presumptions and rules in aid - Against interference with vested rights (incl. pending litigation) - [See second Fish and Game - Topic 229 ].

Statutes - Topic 2272

Interpretation - Presumptions and rules in aid - Presumption against retrospective or retroactive operation - [See second Fish and Game - Topic 229 ].

Statutes - Topic 6704

Operation and effect - Commencement, duration and repeal - Retrospective and retroactive enactments - Presumption against retrospectivity and retroactivity - [See second Fish and Game - Topic 229 ].

Cases Noticed:

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; 281 N.R. 1; 208 D.L.R.(4th) 1; 2002 SCC 1, refd to. [para. 16].

Tucker v. Canada (Minister of Fisheries and Oceans) (2001), 288 N.R. 10; 2001 FCA 384, refd to. [para. 16].

Maple Lodge Farms Ltd. v. Canada (Minister of Economic Development), [1982] 2 S.C.R. 2; 44 N.R. 354; 137 D.L.R.(3d) 558, refd to. [para. 17].

Davies v. Canada (Attorney General) et al. (2005), 330 N.R. 283; 2005 FCA 41, refd to. [para. 18].

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; 43 Admin. L.R.(2d) 1; 31 C.C.L.T.(2d) 236, refd to. [para. 21].

Durant v. Canada (Minister of Fisheries and Oceans) (2002), 218 F.T.R. 143 (T.D.), refd to. [para. 29].

Canada (Attorney General) v. Hennelly (1999), 244 N.R. 399 (F.C.A.), refd to. [para. 29].

Westinghouse Canada Inc. v. Canadian International Trade Tribunal (1989), 104 N.R. 191 (F.C.A.), refd to. [para. 33].

Skycharter Ltd. et al. v. Canada (Minister of Transport) et al. (1997), 125 F.T.R. 307 (T.D.), refd to. [para. 33].

Grewal v. Minister of Employment and Immigration, [1985] 2 F.C. 263; 63 N.R. 106 (F.C.A.), refd to. [para. 34].

R. v. Savory (1992), 108 N.S.R.(2d) 245; 294 A.P.R. 245 (C.A.), refd to. [para. 39].

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, refd to. [para. 41].

Association des Senneurs du Golfe Inc. et al. v. Canada (Ministre des Pêches et Océans) et al. (1999), 175 F.T.R. 25 (T.D.), affd. (2001), 288 N.R. 1 (F.C.A.), refd to. [para. 42].

Carpenter Fishing Corp. et al. v. Canada (Minister of Fisheries and Oceans) et al., [1998] 2 F.C. 548; 221 N.R. 372 (F.C.A.), refd to. [para. 43].

Munroe v. Canada (Minister of Fisheries and Oceans) (1986), 6 F.T.R. 149 (T.D.), refd to. [para. 48].

MacKinnon et al. v. Canada, [1987] 1 F.C. 490; 6 F.T.R. 203 (T.D.), refd to. [para. 48].

Gulf Trollers Association et al. v. Canada (Minister of Fisheries and Oceans) et al., [1987] 2 F.C. 93; 72 N.R. 31 (F.C.A.), refd to. [para. 48].

Gustavson Drilling (1964) Ltd. v. Minister of National Revenue, [1977] 1 S.C.R. 271; 7 N.R. 401, refd to. [para. 51].

Old St. Boniface Residents Association Inc. v. Winnipeg (City) et al., [1990] 3 S.C.R. 1170; 116 N.R. 46; 69 Man.R.(2d) 134; 75 D.L.R.(4th) 385, refd to. [para. 52].

Tucker v. Canada (Minister of Fisheries and Oceans) (2000), 197 F.T.R. 66 (F.C.), refd to. [para. 53].

Statutes Noticed:

Fisheries Act, R.S.C. 1985, c. F-14, sect. 7(1) [para. 19].

Fisheries Act Regulations (Can.), Fishery (General) Regulations, SOR/93-53, sect. 22(1)(g) [para. 38].

Fishery (General) Regulations - see Fisheries Act Regulations (Can.).

Counsel:

William Moreira, Andrea Baldwin and Louis D'Entremont, for the applicants;

Reinhold Endres, Q.C., for the respondent.

Solicitors of Record:

Stewart McKelvey Stirling Scales, Halifax, Nova Scotia, and D'Entremont & Boudrea, Pubnico, Nova Scotia, for the applicants;

John H. Sims, Deputy Attorney General of Canada, Halifax, Nova Scotia, for the respondent.

This application was heard on May 3, 2005, at Halifax, Nova Scotia, by Mosley, J., of the Federal Court, who delivered the following judgment on August 30, 2005.