Morton et al. v. British Columbia (Minister of Agriculture and Lands) et al., (2009) 278 B.C.A.C. 85 (CA)

• Judge: Newbury, Huddart and Lowry, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: October 21, 2009
• Jurisdiction: British Columbia
• Citations: (2009), 278 B.C.A.C. 85 (CA);2009 BCCA 481

Morton v. B.C. (2009), 278 B.C.A.C. 85 (CA);

    471 W.A.C. 85

MLB headnote and full text

Temp. Cite: [2009] B.C.A.C. TBEd. DE.009

Alexandra B. Morton, Pacific Coast Wild Salmon Society, Wilderness Tourism Association, Southern Area (E) Gillnetters Association, and Fishing Vessel Owners' Association of British Columbia (respondents/petitioners) v. Marine Harvest Canada Inc. (appellant/respondent) and Minister of Agriculture and Lands, The Attorney General of British Columbia on behalf of the Province of British Columbia (respondents/respondents)

(CA036905; 2009 BCCA 481)

Indexed As: Morton et al. v. British Columbia (Minister of Agriculture and Lands) et al.

British Columbia Court of Appeal

Newbury, Huddart and Lowry, JJ.A.

November 3, 2009.

Summary:

This action concerned British Columbia's jurisdiction to enact legislation respecting finfish aquaculture in B.C.'s coastal waters. The petitioners sought declarations that, inter alia, ss. 13(5), 14, and 26(2)(a) of the Fisheries Act, the Aquaculture Regulation, ss. 1(h) and 2(1) of the Farm Practices Protection (Right to Farm) Act, and/or the Finfish Aquaculture Waste Control Regulation were ultra vires the Province, invalid and of no force or effect. The petitioners argued that the exclusive jurisdiction to regulate the management and the protection of fisheries in Canada was vested in Parliament pursuant to s. 91(12) of the Constitution Act, 1867. The petitioners also sought an order prohibiting the Minister of Agriculture and Lands from renewing the tenure and licence under which Marine Harvest Canada (MHC) operated a salmon farm.

The British Columbia Supreme Court, in a decision reported at [2009] B.C.T.C. Uned. 136, granted most of the relief sought in the petition. The Chambers judge declared all of the impugned provisions to be ultra vires in their application to finfish aquaculture. However, he suspended the declarations of invalidity for 12 months to give Parliament an opportunity to consider enacting legislation in this area. MHC appealed. It contested only that part of the formal order that declared ss. 1(h) and 2(1) of the Farm Practices Protection (Right to Farm) Act ultra vires in their application to finfish aquaculture. MHC did not challenge the Chambers judge's conclusion that finfish farming fell under federal jurisdiction. It argued that it remained open to a provincial legislature to enact laws dealing with private tort actions brought against finfish farmers. The Canadian Aquaculture Industry Alliance applied for leave to intervene in the appeal and for leave to file affidavit evidence on the appeal.

The British Columbia Court of Appeal, per Frankel, J.A., in a decision reported at 275 B.C.A.C. 88; 465 W.A.C. 88, dismissed the applications. The appeal proceeded. The respondents argued that MHC's argument on appeal was not raised below and therefore not dealt with by the Chambers judge.

The British Columbia Court of Appeal dismissed the appeal and ordered that the argument raised by MHC be remitted to the Chambers judge for determination.

Practice - Topic 9012

Appeals - Restrictions on arguments on appeal - Issues or points not previously raised - The petitioners successfully challenged British Columbia's jurisdiction to enact legislation with respect to finfish aquaculture in the province's coastal waters - The petitioners obtained declarations that certain provincial legislation and regulations were ultra vires and, therefore, invalid - The respondent Marine Harvest Canada Inc. (MHC) appealed - It did not challenge the Chambers judge's conclusion that finfish farming fell under federal jurisdiction - It intended to argue that it remained open to a provincial legislature to enact laws dealing with private tort actions brought against finfish farmers - It argued that fish farms were private fisheries and the fish in them were private property, and that two particular provisions of the invalidated legislation related solely to property and civil rights in the Province - The respondents argued that MHC's argument on appeal was not raised below and therefore not dealt with by the Chambers judge - The British Columbia Court of Appeal dismissed the appeal and ordered that the argument raised by MHC be remitted to the Chambers judge for determination - Whether the fish in an aquaculture facility were private property or not, the validity of the impugned legislation necessarily involved a consideration of other legislation, and an understanding of the entire argument made below - The Chambers judge had this understanding and was in a position to make any necessary findings of fact - The appellate court was not best suited to do that - Once the findings had been made, any rights of appeal could then be properly exercised.

Counsel:

C. Harvey, Q.C., C. Watson and A. Scarth A/S, for the appellant;

No one appeared on behalf of the Province of British Columbia;

G.J. McDade, Q.C., and L.C. Glowacki, for the respondents.

This appeal was heard at Vancouver, B.C., on October 21, 2009, before Newbury, Huddart and Lowry, JJ.A., of the British Columbia Court of Appeal. Newbury, J.A., released the following reasons for judgment for the court on November 3, 2009.