Morton v. Canada (Minister of Fisheries and Oceans) et al., 2015 FC 575

• Judge: Rennie, J.
• Court: Federal Court (Canada)
• Case Date: May 06, 2015
• Jurisdiction: Canada (Federal)
• Citations: 2015 FC 575;(2015), 480 F.T.R. 148 (FC)

Morton v. Can. (2015), 480 F.T.R. 148 (FC)

MLB headnote and full text

Temp. Cite: [2015] F.T.R. TBEd. MY.021

Alexandra Morton (applicant) v. Minister of Fisheries and Oceans and Marine Harvest Canada Inc. (respondents)

(T-789-13; 2015 FC 575)

Indexed As: Morton v. Canada (Minister of Fisheries and Oceans) et al.

Federal Court

Rennie, J.

May 6, 2015.

Summary:

Marine Harvest Inc. operated a fish farm under a license issued by the Minister of Fisheries and Oceans pursuant to s. 7 of the Fisheries Act. Condition 3.1(b) of the licence governed the transfer of smolts from the hatchery to the fish farm. The transferred salmon smolts tested positive for piscine reovirus. A biologist (Morton), in the public interest, applied for judicial review. She contended that the transfer conditions: (1) were inconsistent with the requirements under s. 56 of the Fishery (General) Regulations (FGRs) governing the transfer of farmed fish to the marine environment; and (2) allowed Marine Harvest to make transfer decisions which were reserved to the Minister, and thus were an impermissible delegation of the Minister's legislative responsibilities.

The Federal Court granted the application on the grounds that (1) conditions 3.1(b)(ii) and 3.1(b)(iv) of the licence were inconsistent with the regulatory preconditions imposed on the Minister by s. 56 of the FGRs, and (2) although sub-delegation was permissible, the Minister did not properly delegate. Conditions 3.1(b)(ii) and (iv) were declared invalid and to have no force and effect. The judgment was suspended for four months from the date of its issue, in the public interest.

Administrative Law - Topic 7565

Delegated powers - Subdelegation of powers - Prohibition against delegation by delegate (delegatus non potest delegare) - [See eighth Fish and Game - Topic 184 ].

Animals - Topic 4205

Species at risk (incl. marine animals) - General - Precautionary principle - The applicant in this judicial review application contended that licence conditions permitting a transfer of infected salmon smolts were inconsistent with the preconditions imposed on the Minister of Fisheries and Oceans by s. 56 of the Fishery (General) Regulations governing the transfer of farmed fish to the marine environment - The Minister, invoking the precautionary principle, contended that the licence conditions "take into account the reality of the current limitations of scientific knowledge and reflects a precautionary approach to fish transfers." - The Federal Court considered the meaning of the precautionary principle and its application in this case - The Court concluded that the Minister's arguments with respect to the precautionary principle were "inconsistent, contradictory and, in any event, fail in light of the evidence. ... [B]ased on the evidence before me, the Minister cannot, in support of the reasonableness of the licence conditions and their nexus to the requirements of section 56, contend that they reflect a precautionary approach." - See paragraphs 40 to 47.

Animals - Topic 4205

Species at risk (incl. marine animals) - General - Precautionary principle - Section 56(b) of the Fishery (General) Regulations prohibited the Minister of Fisheries and Oceans from issuing a transfer licence if disease or disease agents were present that "may be harmful" to the protection and conservation of fish" - The Federal Court held that two conditions of the licence issued to the respondent, permitting a transfer of infected salmon smolts, were inconsistent with s. 56(b), not only on the basis of principles governing the interpretation of subordinate legislation, but also in light of the precautionary principle -Section 56(b), properly construed, embodied the precautionary principle - The consequence was that the licence conditions had to also reflect the precautionary principle - "As the licence conditions cannot derogate from or be inconsistent with subsection 56(b), they therefore cannot derogate from the precautionary principle. ... The conditions dilute the requirements of subsection 56(b), a regulation designed to anticipate and prevent harm even in the absence of scientific certainty that such harm will in fact occur." - See paragraphs 96 to 99.

Crown - Topic 666

Authority of Ministers - Interpretation of legislation (incl. standard of review of ministerial interpretation) - [See Fish and Game - Topic 165 ].

Crown - Topic 710

Authority of Ministers - Delegation of - Administrative powers - Implied delegation - [See eighth Fish and Game - Topic 184 ].

Crown - Topic 715

Authority of Ministers - Delegation of - Interpretation of - [See eighth Fish and Game - Topic 184 ].

Fish and Game - Topic 165

Fisheries - Regulation - Appeals or judicial review (incl. standard of review) - The question on this judicial review application was whether licence conditions were consistent with the preconditions and requirements governing transfers of farmed fish to the marine environment, established by s. 56 of the Fishery (General) Regulations - The Federal Court agreed with the Minister of Fisheries and Oceans that the question was to be assessed against a reasonableness standard - "The Minister, through the imposition of conditions, is seeking to implement or render operational, the obligations imposed by sections 56(a), (b) and (c). A licence condition that is inconsistent or contrary to a regulatory obligation would be ultra vires, but it would also be unreasonable. As I characterize the issue before the Court, the question is whether the licence conditions are a reasonable articulation, or expression, of the mandatory requirements of section 56." - See paragraphs 26 to 32.

Fish and Game - Topic 184

Fisheries - Aquaculture (incl. fish farming) - Leases and licenses - The inconsistency asserted by the applicant was not between the Fishery Act and the Fishery (General) Regulations (FGRs), but s. 56 of the FGRs and the licence issued by the Minister of Fisheries and Oceans to the respondent - The Federal Court stated that "Any condition of the licence that conflicts with the substantive regulatory provisions cannot carry out the purposes of the regulatory scheme ... The point is made ... by subsection 22(1) of the FGRs which directs that the Minister may not specify a condition in a licence that is inconsistent with the Regulations. The licence and its attached conditions cannot derogate from or be inconsistent with the FGRs. ... [T]he licence cannot grant that which the FGRs exclude. This applies with particular force where, as here, the language of the regulation requires certain pre-conditions be met before the Minister may issue a licence." - See paragraphs 49 to 51.

Fish and Game - Topic 184

Fisheries - Aquaculture (incl. fish farming) - Leases and licenses - The applicant asserted a substantive inconsistency between what s. 56 of the Fishery (General) Regulations (FGRs) required of the Minister of Fisheries and Oceans, and the articulation of those requirements in the form of conditions on a licence issued to the respondent - The Federal Court stated that "[t]he question of whether the licence satisfies its governing regulatory provisions requires analogy to the first principles of statutory interpretation. I rely on Driedger's modern principle of statutory interpretation ... . In other words, a purposive, contextual and harmonious interpretation should be applied to section 56 of the FGR ... . It is, however, imperative to remember that the standard of review is reasonableness, in this case, infused with deference" - See paragraphs 52 and 53.

Fish and Game - Topic 184

Fisheries - Aquaculture (incl. fish farming) - Leases and licenses - Section 56 of the Fishery (General) Regulations (FGRs) provided for prerequisites to the issuance of a licence to transfer fish - The Federal Court stated that the prerequisites "apply prior to and during the currency of a licence. Importantly, the section 56 prerequisites do not govern the conduct of a licensee but rather govern the conduct of the Minister in issuing a licence to transfer fish under section 56." - See paragraph 54.

Fish and Game - Topic 184

Fisheries - Aquaculture (incl. fish farming) - Leases and licenses - The applicant contended that a condition in the licence issued to the respondent conflicted with s. 56 of the Fishery (General) Regulations, specifically, the requirement that transferred fish "do not have any disease or disease agent that may be harmful to the protection and conservation of fish" (s. 56(b)) - The Federal Court, in applying a statutory interpretation analysis, looked to the language of s. 56(b) and, outside of the legislative scheme, to the report of the federal Commission of Inquiry into the Decline of Sockeye Salmon in the Fraser River - "The plain meaning of the language ' any disease or disease agent' suggests that the phrase is not limited to only those few diseases prescribed by policy as listed in Appendix IV. The Minister's legal duty under section 56 extends to any disease or disease agent that 'may be harmful to the protection and conservation of fish.' Interpreting section 56(b) in this manner is consistent with a purposive and contextual approach, as it supports conservation of the resource, the Minister's primary obligation under the Fisheries Act ... . It is also consistent with the precautionary approach which the Minister says was taken into account." - See paragraphs 55 and 56.

Fish and Game - Topic 184

Fisheries - Aquaculture (incl. fish farming) - Leases and licenses - The applicant contended that the respondent had transferred diseased fish from its private hatchery to its fish farm on the Pacific Coast - The central issue was whether a condition in the licence conflicted with s. 56 of the Fishery (General) Regulations, specifically, the requirement that transferred fish "do not have any disease or disease agent that may be harmful to the protection and conservation of fish" (s. 56(b)) - The Federal Court, applying a purposive, contextual and plain meaning analysis, stated that the phrase "that may be harmful" means "any disease or disease agent that might be harmful to the protection and conservation of fish. This interpretive approach is again consistent with the precautionary principle, the essence of which is that where a risk of serious or irreversible harm exists, a lack of scientific certainty should not be used as a reason for postponing or failing to take reasonable and cost-effective conservation and management measures to address that risk." - See paragraph 57.

Fish and Game - Topic 184

Fisheries - Aquaculture (incl. fish farming) - Leases and licenses - The applicant contended that condition 3.1(b)(ii) in the respondent's transfer licence conflicted with the Fishery (General) Regulations, specifically, the requirement that transferred fish "do not have any disease or disease agent that may be harmful to the protection and conservation of fish" (s. 56(b)) - The condition provided that a licensee might transfer fish if the stock "shows no signs of clinical disease requiring treatment." - The applicant argued that the condition maintained a lower standard than that prescribed by s. 56(b), and was thus inconsistent with s. 56(b) - The Federal Court agreed - The condition contradicted the plain language of s. 56(b) - "Section 56(b) stipulates that no transfer may take place if they have 'any disease or disease agent' that may be harmful to the transfer of fish. The licence condition, in contrast, allows transfers unless the fish show signs of clinical disease requiring treatment." - Second, no criteria were provided to the respondent as to what diseases might be harmful to the protection and conservation of fish - "There is no nexus or scientific linkage between the regulatory requirement (directed to the protection of the resource) and the licence condition (directed to the stock)." - See paragraphs 62 to 67.

Fish and Game - Topic 184

Fisheries - Aquaculture (incl. fish farming) - Leases and licenses - The applicant contended that condition 3.1(b)(iv) in Marine Harvest's transfer licence issued by the Minister of Fisheries and Oceans conflicted with the Fishery (General) Regulations (FGRs), specifically the requirement that transferred fish "do not have any disease or disease agent that may be harmful to the protection and conservation of fish" (s. 56(b)) - The condition allowed the transfer of diseased fish on the assessment of the facility veterinarian that the transfer was of "low risk", and the transfer of fish from stock known to have one of the diseases of regional, national or international concern that could "severely impact fisheries" - The Federal Court held that the condition conflicted with s. 56(b) and the regulatory duty imposed on the Minister - "[T]he Minister cannot create any licence conditions which would in fact sidestep or nullify the FGRs. However, that is the effect of the override provision in the licence. Licence condition 3.1(b)(iv) is inconsistent with section 56(b) ... . It is also unreasonable as it is, on its face, internally inconsistent. A transfer cannot be of low risk when it allows the transfer of fish with diseases which have the potential to 'severely impact' the fishery at an international level." - See paragraphs 70 to 72.

Fish and Game - Topic 184

Fisheries - Aquaculture (incl. fish farming) - Leases and licenses - The applicant contended that condition 3.1(b)(iv) in Marine Harvest's transfer licence conflicted with the Fishery (General) Regulations (FGRs), specifically the requirement that transferred fish "do not have any disease or disease agent that may be harmful to the protection and conservation of fish" (s. 56(b)) - Condition 3.1(b)(iv) allowed the transfer of diseased fish on the assessment of the facility veterinarian that the transfer was of "low risk", and the transfer of fish from stock known to have one of the diseases of concern that could "severely impact fisheries" - The Federal Court concluded that the Minister of Fisheries and Oceans had not properly delegated - The Minister had sub-delegated to the licensee the ultimate determination as to whether a transfer was permissible - The FGRs impliedly authorized the Minister to delegate to Marine Harvest - However, although sub-delegation was permissible , the Minister did not properly delegate: (1) the licence improperly conferred unlimited discretion to Marine Harvest, without any standards or criteria for the exercise of discretion; and (2) the Minister had not retained supervisory control over Marine Harvest - See paragraphs 74 to 95.

Fish and Game - Topic 184

Fisheries - Aquaculture (incl. fish farming) - Leases and licenses - The Federal Court stated that the terms of the transfer licences at issue were constrained by the statutory duty cast on the Minister of Fisheries and Oceans, and the regulatory pre-conditions and requirements established by s. 56 of the Fishery (General) Regulations (FGRs) governing the transfer of farmed fish to the marine environment - "Licences cannot be issued that do not conform to the legislation, and the Minister cannot improperly delegate his responsibilities under the FGRs for the protection and conservation of the fishery." - See paragraph 100.

Fish and Game - Topic 184

Fisheries - Aquaculture (incl. fish farming) - Leases and licenses - Two conditions relating to a transfer licence were held to be inconsistent with the preconditions and requirements under s. 56 of the Fishery (General) Regulations, and were declared invalid and to have no force and effect - The Federal Court held that a limited suspension of judgment was in the public interest, and suspended its judgment for four months from the date of its issue - The interrelationship between s. 56 and licence conditions would affect other licences - As many as 120 licences, due to expire at the end of 2015, could be affected - Further, there could be implications for existing aquaculture operations, including fish recently transferred to the marine environment - "Here, there is an existing legal scheme in place governing the transfer of fish ... . This declaration does not create a legislative hiatus; only portions of the licences are affected - all other aspects of the licence conditions remain in effect. Balancing these considerations, I am satisfied that a limited suspension of judgment is in the public interest." - See paragraphs 101 to 105.

Statutes - Topic 2601

Interpretation - Interpretation of words and phrases - Modern rule (incl. interpretation by context) - General principles - [See second Fish and Game - Topic 184 ].

Statutes - Topic 5310

Operation and effect - Delegated legislation - General and definitions - Power of subdelegation - When conferred - [See eighth Fish and Game - Topic 184 ].

Statutes - Topic 5312

Operation and effect - Delegated legislation - General and definitions - Subdelegation - General - [See eighth Fish and Game - Topic 184 ].

Statutes - Topic 5356

Operation and effect - Delegated legislation - Regulations - Interpretation - General - [See fourth and fifth Fish and Game - Topic 184 ].

Statutes - Topic 5542

Operation and effect - Delegated legislation - Orders, directives or terms of reference made pursuant to regulations - Authority to enact - [See first, third, and ninth Fish and Game - Topic 184 ].

Statutes - Topic 5543

Operation and effect - Delegated legislation - Orders, directives or terms of reference made pursuant to regulations - Nature and effect of - [See sixth and seventh Fish and Game - Topic 184 ].

Cases Noticed:

Morton et al. v. British Columbia (Minister of Agriculture and Lands) et al., [2009] B.C.T.C. Uned. 136; 2009 BCSC 136, affd. (2009), 278 B.C.A.C. 85; 471 W.A.C. 85; 2009 BCCA 481, refd to. [para. 18].

McLean v. British Columbia Securities Commission, [2013] 3 S.C.R. 895; 452 N.R. 340; 347 B.C.A.C. 1; 593 W.A.C. 1; 2013 SCC 67, refd to. [para. 27].

Malcolm v. Canada (Minister of Fisheries and Oceans) et al. (2013), 430 F.T.R. 238; 2013 FC 363, affd. (2014), 460 N.R. 357; 2014 FCA 130, leave to appeal refused [2014] S.C.C.A. No. 350, refd to. [para. 29].

Matthews v. Canada (Attorney General) (1999), 242 N.R. 18 (F.C.A.), refd to. [para. 30].

Comeau's Sea Foods Ltd. v. Canada (Minister of Fisheries and Oceans), [1997] 1 S.C.R. 12; 206 N.R. 363, refd to. [para. 30].

Tervita Corp. et al. v. Commissioner of Competition et al. (2015), 467 N.R. 97; 2015 SCC 3, refd to. [para. 31].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al., [2011] 3 S.C.R. 654; 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 31].

Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) et al., [2013] 2 S.C.R. 559; 446 N.R. 65; 2013 SCC 36, refd to. [para. 31].

Canadian National Railway Co. v. Canada (Attorney General) et al. (2014), 458 N.R. 150; 2014 SCC 40, refd to. [para. 31].

Association of Universities and Colleges of Canada et al. v. Canadian Copyright Licensing Agency (2012), 428 N.R. 297; 2012 FCA 22, refd to. [para. 36].

114957 Canada ltée (Spraytech, Société d'arrosage) et al. v. Hudson (Town), [2001] 2 S.C.R. 241; 271 N.R. 201; 2001 SCC 40, refd to. [para. 41].

Ontario (Minister of the Environment) v. Castonguay Blasting Ltd. (2013), 449 N.R. 266; 2013 SCC 52, refd to. [para. 42].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 52].

R. v. Marshall (D.J.), Jr., [1999] 3 S.C.R. 533; 247 N.R. 306; 179 N.S.R.(2d) 1; 553 A.P.R. 1, refd to. [para. 56].

Ontario (Minister of the Environment) v. Castonguay Blasting Ltd. (2013), 449 N.R. 266; 310 O.A.C. 1; 2013 SCC 52, refd to. [para. 58].

Georgia Strait Alliance et al. v. Canada (Minister of Fisheries and Oceans) et al. (2012), 427 N.R. 110; 2012 FCA 40, refd to. [para. 59].

Canada (Minister of Fisheries and Oceans) v. David Suzuki Foundation - see Georgia Strait Alliance et al. v. Canada (Minister of Fisheries and Oceans) et al.

Forget v. Québec (Procureur général) and Office de la langue française, [1988] 2 S.C.R. 90; 87 N.R. 37; 17 Q.A.C. 241, refd to. [para. 80].

R. v. Cox (W.T.) (2003), 225 Nfld. & P.E.I.R. 86; 672 A.P.R. 86; 2003 NLSCTD 56, agreed with [para. 81].

Vic Restaurant v. Montreal (City), [1959] S.C.R. 58, refd to. [para. 83].

Bristol-Myers Squibb Co. et al. v. Canada (Attorney General) et al., [2005] 1 S.C.R. 533; 334 N.R. 55; 2005 SCC 26, refd to. [para. 100].

Bedford et al. v. Canada (Attorney General), [2013] 3 S.C.R. 1101; 452 N.R. 1; 312 O.A.C. 53; 2013 SCC 72, consd. [para. 103].

Statutes Noticed:

Fisheries Act, R.S.C. 1985, c. F-14, sect. 7 [para. 10]; sect. 43 [para. 11]; sect. 54 [para. 13]; sect. 56 [paras. 14, 54].

Fisheries Act Regulations (Can.), Fisheries (General) Regulations, SOR/93-53, sect. 22 [para. 30].

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

Counsel:

Margot Venton and Lara Tessaro, for the applicant;

Steven Postman and Lisa Nevens, for the respondent, Minister of Fisheries and Oceans;

Christopher Watson, Christopher Harvey and Ian Knapp, for the respondent, Marine Harvest Canada Inc.

Solicitors of Record:

Margot Venton, Lara Tessaro and Morgan Blakley, Vancouver, British Columbia, for the applicant;

William F. Pentney, Deputy Attorney General of Canada, Vancouver, British Columbia, for the respondent, Minister of Fisheries and Oceans;

Mackenzie Fujisawa LLP, Vancouver, British Columbia, for the respondent, Marine Harvest Canada Inc.

This application for judicial review was heard at Vancouver, British Columbia, on June 9 and 11-13, 2014, before Rennie, J., of the Federal Court, who delivered the following judgment and reasons, dated May 6, 2015, at Ottawa, Ontario.