Morton et al. v. British Columbia (Minister of Agriculture and Lands) et al., 2010 BCCA 435

• Judge: Kirkpatrick, Tysoe and Bennett, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: September 29, 2010
• Jurisdiction: British Columbia
• Citations: 2010 BCCA 435;(2010), 296 B.C.A.C. 225 (CA)

Morton v. B.C. (2010), 296 B.C.A.C. 225 (CA);

    503 W.A.C. 225

MLB headnote and full text

Temp. Cite: [2010] B.C.A.C. TBEd. DE.019

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. Minister of Agriculture and Lands, The Attorney General of British Columbia on behalf of the Province of British Columbia (respondents/respondents) and Marine Harvest Canada Inc. (appellant/respondent)

(CA038013; 2010 BCCA 435)

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

British Columbia Court of Appeal

Kirkpatrick, Tysoe and Bennett, JJ.A.

September 29, 2010.

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. The parties made submissions respecting costs.

The British Columbia Supreme Court, in a decision reported at [2009] B.C.T.C. Uned. 660, held that the proceeding was public interest litigation of importance. He ordered the Province to pay the petitioners 75% of their special costs and to pay MHC 100% of its special costs. MHC appealed the substantive decision. 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, in a decision reported at 278 B.C.A.C. 85; 471 W.A.C. 85, dismissed the appeal and ordered that the argument raised by MHC be remitted to the Chambers judge for determination. The two matters remitted for determination were whether fish farms were private fisheries and the fish in them are private property (matter 1) and whether ss. 1(h) and 2(1) of the Farm Practices Protection (Right to Farm) Act, R.S.B.C. 1996, c. 131, related solely to property and civil rights in the Province (matter 2).

The British Columbia Supreme Court, in a supplementary decision reported at [2009] B.C.T.C. Uned. 136, found it unnecessary to decide matter 1 and he confirmed that ss. 1(h) and 2(1) of the Farm Practices Protection (Right to Farm) Act were ultra vires. He ordered that the Province should not bear any costs of the further proceedings and held that MHC should pay the special costs of the petitioners with respect to the further proceedings dealing with the two matters remitted by the Court of Appeal. MCH appealed the costs award.

The British Columbia Court of Appeal dismissed the costs appeal.

Practice - Topic 7470.5

Costs - Solicitor and client costs - Entitlement to - Public interest or test cases - 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 argued, inter alia, that it remained open to a provincial legislature to enact laws dealing with private tort actions brought against finfish farmers - The respondents argued that the matter was not raised before the chambers judge - The British Columbia Court of Appeal remitted two matters to the chambers judge - The chambers judge dealt with the matters - The chambers judge held that MHC should pay the special costs of the petitioners respecting the further proceedings dealing with the remitted matters - He found that a matter of national importance raised by the petitioners was resolved - MHC, a party to that resolution, then sought to use that litigation to pursue its economic interests - But for MHC's efforts, the costs associated with hearing the two matters would not have arisen - MHC appealed, arguing that the chambers judge erred in adding the factor of economic motive to the factors governing awards of special costs in public interest litigation - The British Columbia Court of Appeal rejected the argument - The chambers judge did not add a new factor - Rather, he merely placed added significance on two existing factors respecting the awarding of special costs to a public interest litigant ((1)the case involved matters of public importance that transcended the immediate interests of the named parties, and which had not been previously resolved and (2) the successful party had no personal, proprietary or pecuniary interest in the outcome of the litigation that would justify the proceeding economically) - The award of special costs was consistent with providing access to justice to the petitioners.

Cases Noticed:

Victoria (City) v. Adams et al. (2009), 280 B.C.A.C. 237; 474 W.A.C. 237; 313 D.L.R.(4th) 29; 2009 BCCA 563, refd to. [para. 9].

Hamilton v. Open Window Bakery Ltd. et al., [2004] 1 S.C.R. 303; 316 N.R. 265; 184 O.A.C. 209; 2004 SCC 9, refd to. [para. 10].

Little Sisters Book and Art Emporium v. Minister of National Revenue, [2007] 1 S.C.R. 38; 356 N.R. 83; 235 B.C.A.C. 1; 388 W.A.C. 1; 2007 SCC 2, refd to. [para. 10].

Counsel:

C. Watson, for the appellant;

G.J. McDade, Q.C., for the respondents/petitioners.

This appeal was heard on September 29, 2010, at Vancouver, B.C., before Kirkpatrick, Tysoe and Bennett, JJ.A., of the British Columbia Court of Appeal. Tysoe, J.A., released the following oral reasons for judgment for the court on that date.