Radil Bros. Fishing Co. v. Canada (Minister of Fisheries and Oceans) et al., (2003) 230 F.T.R. 228 (TD)

• Court: Federal Court (Canada)
• Case Date: April 05, 2001
• Jurisdiction: Canada (Federal)
• Citations: (2003), 230 F.T.R. 228 (TD)

Radil Bros. Fishing Co. v. Can. (2003), 230 F.T.R. 228 (TD)

MLB headnote and full text

Temp. Cite: [2003] F.T.R. TBEd. FE.021

Radil Bros. Fishing Co. Ltd. (plaintiff) v. Her Majesty the Queen, as represented by the Director General of the Department of Fisheries and Oceans, Pacific Region and British Columbia Packers Limited and Titan Fishing Ltd. (defendants)

(T-192-98; 2003 FCT 79)

Indexed As: Radil Bros. Fishing Co. v. Canada (Minister of Fisheries and Oceans) et al.

Federal Court of Canada

Trial Division

Hargrave, Prothonotary

January 24, 2003.

Summary:

The plaintiff's action sought declaratory relief arising out of a transfer of a fishing licence from the plaintiff's vessel to another vessel. The defendant Crown, as represented by the Department of Fisheries and Oceans, applied to strike out the statement of claim on the basis that it failed to disclose a reasonable cause of action, was an abuse of the court's process, the relief sought went beyond the court's jurisdiction and, in any event, the relief sought was moot.

A Prothonotary of the Federal Court of Canada, Trial Division, dismissed the application with the exception of striking out three paragraphs of the statement of claim.

Courts - Topic 2286

Jurisdiction - Bars - Academic matters or moot issues - The plaintiff's action sought declaratory relief arising out of a transfer of a fishing licence from the plaintiff's vessel (the Seacrest) to another vessel - The amended statement of claim alleged that the licence swap went ahead because of assurances from an official of the Department of Fisheries and Oceans (DFO) that the catch history of the Seacrest would stay with that vessel - The defendant Crown, represented by DFO, applied to strike out the statement of claim, arguing that the matter was moot where a new fishing licence was issued yearly - A Prothonotary of the Federal Court of Canada, Trial Division, dismissed the application where there were more than enough indicia to demonstrate that the court might hear the matter, even if moot - The necessary adversarial relationship still existed where the plaintiff's fish quota was affected each year - The usefulness to the plaintiff of a declaration that the licence transfer was improper might also be a special circumstance to warrant the use of scarce judicial resources to decide the matter - See paragraphs 24 to 33.

Courts - Topic 4043

Federal Court of Canada - Jurisdiction - Trial Division - Declaratory relief - The plaintiff's action sought declaratory relief arising out of a transfer of a fishing licence from the plaintiff's vessel (the Seacrest) to another vessel - Nine new paragraphs in the amended statement of claim alleged that the licence swap went ahead because of assurances from an official of the Department of Fisheries and Oceans (DFO) that the catch history of the Seacrest would stay with that vessel - The defendant Crown, represented by DFO, applied to strike out the statement of claim, arguing that as the statement of claim sought only declaratory relief, it usurped the role of the Minister of Fisheries and Oceans - A Prothonotary of the Federal Court of Canada, Trial Division, rejected the argument - While the court could not order the Minister to issue a fishing licence, it could issue declarations as to rights, which the Minister might or might not follow - See paragraphs 24 to 26.

Courts - Topic 4043

Federal Court of Canada - Jurisdiction - Trial Division - Declaratory relief - The plaintiff's action sought declaratory relief arising out of a transfer of a fishing licence from the plaintiff's vessel (the Seacrest) to another vessel - The amended statement of claim alleged that the licence swap went ahead because of assurances from an official of the Department of Fisheries and Oceans (DFO) that the catch history of the Seacrest would stay with that vessel - The defendant Crown, represented by DFO, applied to strike out the statement of claim, arguing that the relief sought, not being a declaration of rights, but a declaratory order as to the lawfulness of past conduct, was neither available nor appropriate - A Prothonotary of the Federal Court of Canada, Trial Division, rejected the argument - See paragraphs 34 to 36.

Fish and Game - Topic 221

Right to fish - Licensing - General - The plaintiff's action sought declaratory relief arising out of a transfer of a fishing licence from the plaintiff's vessel (the Seacrest) to another vessel - Nine new paragraphs in the amended statement of claim alleged that the licence swap went ahead because of assurances from an official of the Department of Fisheries and Oceans that the catch history of the Seacrest would stay with that vessel - The Crown, represented by DFO, applied to strike the statement of claim - A Prothonotary of the Federal Court of Canada, Trial Division, declined to strike out the new paragraphs of the amended statement of claim - The plea in those paragraphs might well succeed because it did not depend on some form of proprietary or legal right or entitlement to a fishing licence - Rather, the plea was based on a reasonably arguable negligent operational misrepresentation by a Crown servant, which could give rise to declaratory relief independent of statute - See paragraphs 17 to 23.

Practice - Topic 2247

Pleadings - Striking out pleadings - Bars - Second application re same pleading - The plaintiff's action sought declaratory relief arising out of a fishing licence transfer - The defendant Crown, represented by the Department of Fisheries and Oceans, sought to strike out the statement of claim on the basis, inter alia, that it failed to disclose a reasonable cause of action - The Crown had made submissions in an earlier unsuccessful motion for summary judgment brought by another defendant - A Prothonotary of the Federal Court of Canada, Trial Division, stated that "any claim which survives a summary judgment application is not a candidate for striking out and, a fortiori, not on the basis of similar case law and argument. Given the earlier attacks on the pleadings, fully participated in on one occasion by the Crown, the Crown now making a similar attack ... I may properly only consider disallowing, in the context of striking out, the most recent amendments to the statement of claim" - See paragraphs 15 to 16.

Cases Noticed:

Borley v. Fraser River Harbour Commission et al. (1995), 92 F.T.R. 275 (T.D. Protho.), refd to. [para. 5].

Ruby Trading S.A. v. Parsons et al. (2000), 194 F.T.R. 103 (T.D. Protho.), refd to. [para. 7].

Windsurfing International Inc. v. Novaction Sports Inc. and Teasdale (1987), 15 F.T.R. 302; 18 C.P.R.(3d) 230 (T.D.), refd to. [para. 7].

Shubenacadie Indian Band v. Canada (Attorney General) et al. (2001), 202 F.T.R. 30 (T.D.), refd to. [para. 8].

Granville Shipping Co. v. Pegasus Lines Ltd. S.A. et al., [1996] 2 F.C. 853; 111 F.T.R. 189 (T.D.), refd to. [para. 9].

ITV Technologies Inc. v. WIC Television Ltd., [2001] N.R. Uned. 33 (F.C.A.), refd to. [para. 9].

Procter & Gamble Co. et al. v. Nabisco Brands Ltd. (1985), 62 N.R. 364; 5 C.P.R.(3d) 417 (F.C.A.), refd to. [para. 14].

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, refd to. [para. 19].

Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd., [1964] A.C. 465 (H.L.), refd to. [para. 22].

Queen (D.J.) v. Cognos Inc., [1993] 1 S.C.R. 87; 147 N.R. 169; 60 O.A.C. 1; 99 D.L.R.(4th) 626, refd to. [para. 22].

Keleher et al. v. Canada (Minister of Fisheries and Oceans) (1989), 26 F.T.R. 161 (T.D.), refd to. [para. 22].

Johnson v. Ramsay Fishing Co. (1987), 15 F.T.R. 106; 47 D.L.R.(4th) 544 (T.D.), refd to. [para. 26].

Kelso v. Canada, [1981] 1 S.C.R. 199; 35 N.R. 19, refd to. [para. 26].

Shoulders v. Canada (Attorney General) (1999), 165 F.T.R. 125 (T.D.), refd to. [para. 29].

Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; 92 N.R. 110; 75 Sask.R. 82; 38 C.R.R. 232; 57 D.L.R.(4th) 231; 47 C.C.C.(3d) 1; 33 C.P.C.(2d) 105; [1989] 3 W.W.R. 97, refd to. [para. 29].

Rusche v. Insurance Corp. of British Columbia (1992), 4 C.P.C.(3d) 12 (B.C.S.C.), dist. [para. 34].

Architectural Institute of British Columbia v. Lee's Design and Engineering (1979), 96 D.L.R.(3d) 385 (B.C.S.C.), dist. [para. 35].

Brogden v. Metropolitan Railway Co. (1877), 2 A.C. 666 (H.L.), refd to. [para. 38].

Torfason (Dr. T.) Inc. et al. v. 338058 B.C. Ltd. (1994), 53 B.C.A.C. 177; 87 W.A.C. 177; 1 B.C.L.R.(3d) 370 (C.A.), refd to. [para. 38].

Schiff Food Products Inc. v. Naber Seed & Grain Co., [1997] 1 W.W.R. 124; 149 Sask.R. 54 (Q.B.), refd to. [para. 38].

Counsel:

J. Raymond Pollard, for the plaintiff;

Paul F. Partridge and R.S. Whittaker, for the defendant, Her Majesty the Queen;

David Brown, for the defendant, Titan Fishing Ltd.

Solicitors of Record:

Richard Buell Sutton, Vancouver, British Columbia, for the plaintiff;

Morris Rosenberg, Deputy Attorney General of Canada, Vancouver, British Columbia, for Her Majesty the Queen;

Stikeman Elliott, Vancouver, British Columbia, for the defendant, Titan Fishing Ltd.

This application was heard on April 5, 2001, at Vancouver, British Columbia, before Hargrave, Prothonotary, of the Federal Court of Canada, Trial Division, who delivered the following decision on January 24, 2003.