Prince Edward Island et al. v. Canada (Attorney General) et al., 2005 PESCTD 57

• Judge: Campbell , J.
• Case Date: November 02, 2005
• Jurisdiction: Prince Edward Island
• Citations: 2005 PESCTD 57;(2005), 256 Nfld. & P.E.I.R. 343 (PEITD)

P.E.I. v. Can. (A.G.) (2005), 256 Nfld. & P.E.I.R. 343 (PEITD);

    773 A.P.R. 343

MLB headnote and full text

Temp. Cite: [2005] Nfld. & P.E.I.R. TBEd. NO.010

Her Majesty the Queen in Right of the Province of Prince Edward Island and Attorney General of Prince Edward Island, Henry Gallant, Paul Anderson, Kenneth B. MacLeod and John P. MacPhee (respondents/plaintiffs) v. Her Majesty the Queen in Right of Canada and the Minister of Fisheries and Oceans (Canada) and the Attorney General of Canada (applicants/defendants)

(S1-GS-20819; 2005 PESCTD 57)

Indexed As: Prince Edward Island et al. v. Canada (Attorney General) et al.

Prince Edward Island Supreme Court

Trial Division

Campbell , J.

November 2, 2005.

Summary:

The plaintiffs, Prince Edward Island et al., brought an action against Canada, the Minister of Fisheries and Oceans and the Attorney General of Canada. The plaintiffs claimed that s. 7 of the Fisheries Act (Can.) was unconstitutional and that the Minister breached his public trust obligations. The defendants applied to strike the statement of claim. The parties agreed that the only proper defendant was the Attorney General of Canada. The other defendants were removed.

The Prince Edward Island Supreme Court, Trial Division, dismissed the application.

Courts - Topic 4021

Federal Court of Canada - Jurisdiction - Trial Division - Relief against federal boards, commissions or tribunals - [See Courts - Topic 6822 ].

Courts - Topic 5600

Provincial courts - General - Concurrent and conflicting jurisdiction - General - [See Courts - Topic 6822 ].

Courts - Topic 5685

Provincial courts - General - Jurisdiction or powers - Actions against Federal Crown - [See Courts - Topic 6822 ].

Courts - Topic 5697

Provincial courts - General - Jurisdiction or powers - Ousting (incl. where same cause of action pending in Federal Court) - [See Courts - Topic 6822 ].

Courts - Topic 5699

Provincial courts - General - Jurisdiction or powers - Constitutional rights - [See Courts - Topic 6822 ].

Courts - Topic 6822

Provincial courts - Prince Edward Island - Supreme Court - Breach of public trust obligations - The plaintiffs, the Province of Prince Edward Island and some individuals, issued a statement of claim alleging that Canada and/or the Minister of Fisheries and Oceans had breached their common law public trust obligations in that they breached their fiduciary duty to manage the common resource that was the fishery, fairly and in good faith, for the equal benefit of all - This, they said, resulted in Prince Edward Island and its fishers being denied their fair share of the collective resource - The plaintiffs also asked for a declaration that s. 7 of the Fisheries Act (Can.), which provided for the Minister's "absolute discretion" to issue licences, was unconstitutional - The Prince Edward Island Supreme Court, Trial Division, held that there was nothing preventing the plaintiffs from bringing their action before it - The court held that the Federal Court also had jurisdiction respecting the breach of public trust obligations issues but that it did not oust the court's jurisdiction - Finally, the court held that the plaintiffs had standing to bring their constitutional challenge and tort action before it - See paragraphs 23 to 42.

Courts - Topic 6824

Provincial courts - Prince Edward Island - Supreme Court - Constitutional matters - [See Courts - Topic 6822 ].

Practice - Topic 220

Persons who can sue and be sued - Individuals and corporations - Status or standing - Respecting validity of administrative action by government officials or public body - [See Courts - Topic 6822 ].

Practice - Topic 231

Persons who can sue and be sued - Agencies of government - General - [See Courts - Topic 6822 ].

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - Section 7 of the Fisheries Act (Can.) provided that the Minister of Fisheries and Oceans "may, in his absolute discretion" issue fishing licences for terms of less than nine years - The Province of Prince Edward Island and others issued a statement of claim challenging s. 7 on the ground that it was unconstitutional because it offended the rule of law - The Prince Edward Island Supreme Court, Trial Division, could not conclude that it was plain and obvious that the plaintiffs would not succeed in obtaining a declaration that the word "absolute" in the phrase "on his absolute discretion" was unconstitutional - Neither could the court say that it was plain and obvious that the judicial treatment of s. 7 would be the same if the word "absolute" was stricken from that legislation as opposed to being otherwise massaged or interpreted - See paragraphs 8 to 22.

Words and Phrases

Federal board, commission or other tribunal - The Prince Edward Island Supreme Court stated that the expression "federal board, commission or other tribunal", found in s. 2(1) of the Federal Courts Act, R.S.C. 1985, c. F-7, included the Minister of Fisheries as set out in s. 7 of the Fisheries Act, R.S.C. 1985, c. F-14 - See paragraph 24.

Cases Noticed:

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321, consd. [para. 8].

Hunt v. Carey Canada Inc. - see Hunt v. T & N plc et al.

Horseman v. Horse Lake First Nation (2002), 323 A.R. 81; 2002 ABQB 765, consd. [para. 9].

Shubenacadie Indian Band v. Canada (Attorney General) et al. (2001), 202 F.T.R. 30 (T.D.), consd. [para. 10].

Comeau's Sea Foods Ltd. v. Canada (Minister of Fisheries and Oceans), [1997] 1 S.C.R. 12; 206 N.R. 363; 142 D.L.R.(4th) 193, consd. [para. 15].

Everett v. Canada (Minister of Fisheries and Oceans) (1994), 169 N.R. 100 (F.C.A.), consd. [para. 17].

British Columbia Hydro and Power Authority v. Canada (Attorney General) et al. (1998), 149 F.T.R. 161 (T.D.), refd to. [para. 20].

Jada Fishing Co. et al. v. Canada (Minister of Fisheries and Oceans) et al. (2002), 288 N.R. 237; 2002 FCA 103, refd to. [para. 20].

Tucker v. Canada (Minister of Fisheries and Oceans) (2000), 197 F.T.R. 66 (T.D.), refd to. [para. 21].

Krause et al. v. Canada et al., [1999] 2 F.C. 476; 236 N.R. 317 (F.C.A.), consd. [para. 29].

R. v. Barker (1762), 3 Burr. 1265; 97 E.R. 823, consd. [para. 30].

R. v. Greater London Council; Ex parte Blackburn, [1976] 1 W.L.R. 550, consd. [para. 30].

Markevich v. Minister of National Revenue, [1999] 3 F.C. 28; 163 F.T.R. 209 (T.D.), consd. [para. 32].

British Columbia v. Canadian Forest Products Ltd., [2004] 2 S.C.R. 74; 321 N.R. 1; 198 B.C.A.C. 1; 324 W.A.C. 1, consd. [para. 35].

Horseman v. Horse Lake First Nation (2005), 361 A.R. 287; 339 W.A.C. 287; 2005 ABCA 15, consd. [para. 38].

Chaoulli v. Quebec (Attorney General) (2005), 335 N.R. 25; 2005 SCC 35, consd. [para. 40].

Statutes Noticed:

Federal Courts Act, R.S.C. 1985, c. F-7, sect. 2(1) [para. 24]; sect. 18, sect. 18.1 [para. 25].

Fisheries Act, R.S.C. 1985, c. F-14, sect. 7 [para. 3].

Authors and Works Noticed:

de Bracton, Henry, The Laws and Customs of England (1968), vol 2 [para. 35].

Counsel:

Reinhold Endres, Q.C., and Jessica Harris, for the applicants/defendants;

Eugene P. Rossiter, Q.C., and Spencer Campbell, for the respondents/plaintiffs.

Campbell, J., of the Prince Edward Island Supreme Court, Trial Division, heard this application on May 19 and 20, 2005, and delivered the following decision on November 2, 2005.