Marine Research Inc. v. Can. (A.G.), 2006 FCA 425

• Judge: Desjardins, Nadon and Pelletier, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: November 15, 2006
• Jurisdiction: Canada (Federal)
• Citations: 2006 FCA 425;(2007), 365 N.R. 217 (FCA)

Marine Research Inc. v. Can. (A.G.) (2007), 365 N.R. 217 (FCA)

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2007] N.R. TBEd. JA.037

Recherches Marines Inc./Marine Research Inc., une corporation dûment constituée selon les lois de la province du Nouveau-Brunswick (appelante) v. Procureur général du Canada (intimé)

(A-507-05; 2006 FCA 425; 2006 CAF 425)

Indexed As: Marine Research Inc. v. Canada (Attorney General)

Federal Court of Appeal

Desjardins, Nadon and Pelletier, JJ.A.

December 22, 2006.

Summary:

Marine Research Inc. applied for a fishing licence for scientific purposes. Marine Research did not provide all the information requested by the Minister of Fisheries and Oceans. The Minister refused to issue a licence. Marine Research applied for judicial review.

The Federal Court, in a decision reported at 284 F.T.R. 10, dismissed the application. Marine Research appealed.

The Federal Court of Appeal dismissed the appeal.

Administrative Law - Topic 1027

Classification of power or function - Powers or functions classified as administrative - Licensing authority - Marine Research applied for a crab snow fishing licence for scientific purposes - Marine Research did not provide all the information requested by the Minister of Fisheries and Oceans pursuant to s. 8 of the Fishery (General) Regulations (the Regulations) - The Minister refused to issue a licence - Marine Research challenged the validity of ss. 8 and 22 of the of the Regulations, asserting that the sections conferred discretionary powers rather than establish standards - Marine Research asserted that although s. 43 of the Fisheries Act delegated the power to make regulations respecting the management and control of fisheries, the conservation of fish and the issuance of licences, s. 22 of the Regulations gave carte blanche to the Minister to impose any condition that he deemed desirable or relevant so long as the purpose was the proper management and control of fisheries - The Federal Court of Appeal referred to the distinction between administrative and legislative acts - Sections 8 and 22 stated a significant number of rules of conduct that could be described as general policy - Further, ss. 27, 30, 31 and 34 were examples of general rules of conduct that could apply in this case - Also, the Atlantic Fishery Regulations, applicable pursuant to s. 3(4)(a) of the Regulations, included specific provisions on crab fishing which, in the event of conflict, prevailed over the more general provisions of the Regulations - The rest of s. 22 was similar to sections that were declared valid in Peralta et al. v. Ontario (Ont. C.A. affirmed by the S.C.C.) as administrative delegation - Section 22 established a non-exhaustive list of subjects serving as points of reference for the Minister in establishing conditions when issuing fishing licences - This administrative delegation was supported by ss. 43(a), 43(b), 43(g) and 43(l) of the Act - Peralta governed - This was not a delegation attributing pure discretionary powers - Finally, s. 22 employed the word "respecting" which was found in Peralta to permit a delegation of the administration of the Regulations - See paragraphs 22 to 33.

Administrative Law - Topic 7533

Delegated powers - Validity of delegated powers - Administrative acts - [See Administrative Law - Topic 1027 ].

Crown - Topic 709

Authority of Ministers - Delegation of - Administrative powers - General - [See Administrative Law - Topic 1027 ].

Fish and Game - Topic 223

Right to fish - Licensing - Issuance of licence - General - [See Administrative Law - Topic 1027 ].

Fish and Game - Topic 223

Right to fish - Licensing - Issuance of licence - Marine Research applied for a fishing licence for scientific purposes - The Minister of Fisheries and Oceans requested that Marine Research consult with stakeholders in the fishing industry and provide information on the project's potential impact, including the number of stations anticipated and sampling procedures - The Minister also advised Marine Research of the type of conditions that would be imposed - Marine Research refused to provide the requested information - The Minister refused to issue a licence - Marine Research applied for judicial review - The applications judge held, inter alia, that the Minister had not acted reasonably in requiring consultation with all of the stakeholders in the fishing industry who might be affected by the application - The evidence established that it was customary to consult interveners who were likely to be affected - The Federal Court of Appeal held that the decision was not patently unreasonable - Section 7 of the Fisheries Act, which conferred a broad discretion on the Minister, authorized him to refuse a licence to fish if the requested consultation was not held - See paragraphs 41 to 44.

Fish and Game - Topic 223

Right to fish - Licensing - Issuance of licence - Marine Research applied for a fishing licence for scientific purposes - The Minister of Fisheries and Oceans requested that Marine Research provide it with a copy of the sampling procedures, a list of the station locations for each type of gear used as well as the coordinates of the geographical region of the project - The Minister also advised Marine Research that a licence would be subject to a condition to the effect that it would be required to send the Department the data gathered for analysis - Marine Research refused to comply - The Minister refused to issue a licence - Marine Research sought judicial review, asserting that the information requested was not relevant and was an attempt to appropriate intellectual property - The applications judge defined sampling procedures as they related to documents containing information pertaining to the methodology and details of the research activity, like the number of stations, type of trawl net, length of each line, crab parts measured on board the vessel and so on - He found that obtaining these procedures was relevant, particularly in that reviewing them enabled the Minister to determine whether all steps had been taken to minimize the impact on the species and their habitat - The Minister's decision was not unreasonable - It was Marine Research's inactions that prevented the Minister from exercising his discretion - The Minister imposed conditions, which he was entitled to do, and there was no evidence that he acted in bad faith or arbitrarily - The Federal Court of Appeal affirmed the decision - The Minister had the discretion to determine the relevance of requested information, which was to be assessed by his delegates, and nothing in the record supported a finding that it was patently unreasonable to act in that way - See paragraphs 45 to 48.

Fish and Game - Topic 223.1

Right to fish - Licensing - Issuance of licence for scientific purpose - [See Administrative Law - Topic 1027 and second and third Fish and Game - Topic 223 ].

Cases Noticed:

Peralta et al. v. Ontario (1985), 7 O.A.C. 283; 49 O.R.(2d) 705 (C.A.), affd. [1988] 2 S.C.R. 1045; 89 N.R. 323; 31 O.A.C. 319, appld. [para. 12].

Brant Dairy Co. v. Ontario Milk Commission, [1973] S.C.R. 131; 30 D.L.R.(3d) 559, refd to. [para. 20].

Dynamex Canada Inc. v. Canadian Union of Postal Workers, [1999] 3 F.C. 349; 241 N.R. 312 (F.C.A.), refd to. [para. 20].

Canadian Institute of Public Real Estate Companies et al. v. Toronto (City), [1979] 2 S.C.R. 2; 25 N.R. 108; 103 D.L.R.(3d) 226; 7 M.P.L.R. 39, refd to. [para. 20].

Butler Metal Products Co. v. Canada Employment and Immigration Commission and Canada (Attorney General), [1983] 1 F.C. 790; 44 N.R. 271 (F.C.A.), refd to. [para. 20].

Swan et al. v. Canada et al., [1990] 2 F.C. 409; 31 F.T.R. 241 (T.D.), refd to. [para. 20].

Prairie Acid Rain Coalition et al. v. Canada (Minister of Fisheries and Oceans) et al. (2006), 345 N.R. 374; 2006 FCA 31, refd to. [para. 35].

Tucker v. Canada (Minister of Fisheries and Oceans) (2001), 288 N.R. 10; 2001 FCA 384, affing. (2000), 197 F.T.R. 66 (T.D.), refd to. [para. 37].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 38].

Statutes Noticed:

Fisheries Act, R.S.C. 1985, c. F-14, sect. 7(1), sect. 43 [para. 10].

Fisheries Act Regulations (Can.), Fishery (General) Regulations, SOR/93-53, sect. 8(1), sect. 22(1) [para. 11].

Authors and Works Noticed:

Brown, Donald J.H., and Evans, John M., Judicial Review of Administrative Action in Canada (1998) (Looseleaf Ed.), vol. 2, paras. 13:2000, 13:2500 [para. 32].

de Smith, Stanley Alexander, Judicial Review of Administrative Action (4th Ed. 1980), pp. 728, 729 [para. 22].

Garant, Patrice, Droit administratif (5th Ed. 2004), p. 341 [paras. 20, 32].

Halsbury's Laws of England (4th Ed. 1976), vol. 1, p. 7, para. 4 [para. 23].

Counsel:

Brigitte Sivret, for the appellant;

Rosemarie Millar, for the respondent.

Solicitors of Record:

Brigitte Sivret, Bathurst, New Brunswick, for the appellant;

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This appeal was heard at Ottawa, Ontario, on November 15, 2006, before Desjardins, Nadon and Pelletier, JJ.A., of the Federal Court of Appeal. Desjardins, J.A., delivered the following judgment for the court on December 22, 2006.