Morton et al. v. British Columbia (Minister of Agriculture and Lands) et al., (2009) 275 B.C.A.C. 88 (CA)

• Judge: Frankel, J.A.
• Court: Court of Appeal (British Columbia)
• Case Date: August 17, 2009
• Jurisdiction: British Columbia
• Citations: (2009), 275 B.C.A.C. 88 (CA);2009 BCCA 378

Morton v. B.C. (2009), 275 B.C.A.C. 88 (CA);

    465 W.A.C. 88

MLB headnote and full text

Temp. Cite: [2009] B.C.A.C. TBEd. OC.004

Marine Harvest Canada Inc. (appellant/respondent) v. Alexandra B. Morton, Pacific Coast Wild Salmon Society, Wilderness Tourism Association, Southern Area (E) Gillnetter Association, and Fishing Vessel Owners' Association of British Columbia (respondents/petitioners) 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 378)

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

British Columbia Court of Appeal

Frankel, J.A.

August 19, 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 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. Marine Harvest Canada 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. Marine Harvest Canada 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., dismissed the applications.

Practice - Topic 685

Parties - Adding or substituting parties - Intervenors - On appeal - 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. appealed - It 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 (Alliance) applied for leave to intervene in the appeal respecting the question as to ownership of farmed fish - The British Columbia Court of Appeal, per Frankel, J.A., dismissed the application - Given that federal jurisdiction over finfish farming was accepted by all parties, and given the narrow division of powers issue being raised by Marine Harvest Canada Inc., the question as to ownership of farmed fish was not properly before the court - The likelihood that a division of the court would hear and determine that question was remote - As such, little, if any, benefit would be gained by permitting Alliance to intervene.

Cases Noticed:

Faculty Association of the University of British Columbia v. University of British Columbia (2009), 266 B.C.A.C. 161; 449 W.A.C. 161; 2009 BCCA 56, refd to. [para. 19].

Counsel:

M.G. Siren, for the appellant;

G.D. McDade, Q.C., for the Morton respondents;

K.G. O'Callaghan and K.A.J. Grist, for the intervenor.

These applications were heard on August 17, 2009, at Vancouver, B.C., in Chambers, before Frankel, J.A., of the British Columbia Court of Appeal, who delivered the following oral reasons for judgment on August 19, 2009.