Radil Bros. Fishing Co. v. Canada (Minister of Fisheries and Oceans) et al., (1999) 175 F.T.R. 182 (TD)

• Court: Federal Court (Canada)
• Case Date: June 14, 1999
• Jurisdiction: Canada (Federal)
• Citations: (1999), 175 F.T.R. 182 (TD)

Radil Bros. Fishing Co. v. Can. (1999), 175 F.T.R. 182 (TD)

MLB headnote and full text

Temp. Cite: [1999] F.T.R. TBEd. AU.001

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

(T-382-99)

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

Federal Court of Canada

Trial Division

Hargrave, Prothonotary

July 12, 1999.

Summary:

Radil purchased a fishing vessel, the Sea­crest, and T8 fishing licence in 1986. In 1993, Radil's agent, BC Packers, had the T8 licence transferred to the vessel, the Pacific Eagle, and a T92 licence issued to the Sea­crest. Titan purchased the Pacific Eagle and T8 licence in 1995. Subsequently, the De­partment of Fisheries and Oceans introduced a new quota system based in part on the landing history of a vessel. The Seacrest's quota was substantially lower because of the transfer of licences. Radil sought a decla­ration that the 1993 transfer of licence was illegal and ineffective. Radil also sought to have the Minister of Fisheries and Oceans issue Radil a T8 licence. Titan applied to have the application struck or to have the application proceeded with as an action.

The Federal Court of Canada, Trial Divi­sion, in a decision reported at [1998] F.T.R. Uned. 165, ordered that the application be proceeded with as an action. Radil filed a statement of claim. The statement of claim sought the additional relief of damages from the Crown and BC Packers. Titan applied to have the statement of claim struck out.

The Federal Court of Canada, Trial Divi­sion, in a decision reported at 158 F.T.R. 313, declined to strike out the statement of claim, but ordered that the claim for dam­ages be deleted, where it was not contained in the original application.

Radil initiated a second proceeding, based on the same facts and seeking damages in addition to declaratory relief. The Crown moved to strike out the action, or for a stay and for further and better particulars.

A Prothonotary of the Federal Court of Canada, Trial Division, dismissed the Crown's motions.

Actions - Topic 2606

Duplicitous or vexatious actions - Stay of proceedings - [See Practice - Topic 5277 ].

Courts - Topic 4021

Federal Court of Canada - Jurisdiction - Trial Division - Relief against federal boards, commissions or tribunals - Radil brought an action against the Minister of Fisheries and Oceans, seeking, inter alia, a declaration that it was entitled to a fishing licence based on the catch history of its vessel - The Minister moved to have the claim struck out - The Minister asserted that the court lacked jurisdiction to grant declaratory relief in an action - A Prothonotary of the Federal Court of Canada, Trial Division, declined to strike, where the remedy applied for was discre­tionary and on the basis that serious issues of law should not be struck out on an interlocutory motion, but were best left to be answered at trial - See paragraphs 22 to 28.

Courts - Topic 4021.1

Federal Court of Canada - Jurisdiction - Trial Division - Decisions of federal boards, commissions or tribunals (incl. ministers) - [See Courts - Topic 4021 ].

Courts - Topic 4043

Federal Court of Canada - Jurisdiction - Trial Division - Declaratory relief - [See Courts - Topic 4021 ].

Practice - Topic 1935

Pleadings - Particulars - Bars to granting of order - Where particulars provided are adequate - The defendants sought further particulars - A Prothonotary of the Federal Court of Canada, Trial Division, denied the appli­cation - Further particulars would only be ordered if the defendants estab­lished that further particulars were necess­ary to enable them to plead or if it was obvious on the face of the record that further par­ticulars were needed - See paragraphs 40 to 41.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - A Prothonotary of the Federal Court of Canada, Trial Division, stated that "where the Minister of the Crown exercised discretion in administra­tive capacity and the decision is chal­lenged, the test to be met for a reasonable cause of action is whether the Minister's decision is reviewable. If the decision is not reviewable, the plaintiff has no reason­able cause of action" - See paragraph 31.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - Radil brought an action against the Minister of Fisheries and Oceans, seeking, inter alia, a declaration that it was entitled to a fishing licence based on the catch history of its vessel - The Minister moved to have the claim struck out - A Prothonotary of the Federal Court of Canada, Trial Division, declined to strike out the action and allowed Radil to file an amended statement of claim to more clearly plead grounds upon which the Minister's discretionary decision might be challenged - The Prothonotary stated that a statement of claim should not be struck out without an opportunity to amend, if there is a scintilla of a cause of action - See paragraphs 29 to 35.

Practice - Topic 5277

Trials - General - Stay of proceedings - When available - Radil brought an action against the Minister of Fisheries and Oceans, seeking, inter alia, damages and a declaration that it was entitled to a fishing licence based on the catch history of its vessel - The Minister moved for a stay on the ground that Radil had brought a previ­ous action seeking essentially the same relief based on the same factual circum­stances - A Prothonotary of the Federal Court of Canada, Trial Division, declined to grant a stay because Radil sought dif­ferent relief in the second proceeding which was not available in the first pro­ceeding - The first proceeding was in pith and substance a judicial review proceeding which was now in the form of an action - The second proceeding sought damages that Radil could not obtain in the first proceeding - See paragraphs 36 to 39.

Cases Noticed:

Halifax (County) v. Shunamon (1995), 39 C.P.C.(3d) 376; 144 N.S.R.(2d) 27; 416 A.P.R. 27 (S.C.), refd to. [para. 23].

Solosky v. Canada, [1980] 1 S.C.R. 821; 30 N.R. 380; 105 D.L.R.(3d) 745, refd to. [para. 26].

Johnson v. Ramsay Fishing Co. (1987), 15 F.T.R. 106; 47 D.L.R.(4th) 544 (T.D.), refd to. [para. 27].

Kelso v. Canada, [1981] 1 S.C.R. 199; 35 N.R. 19, refd to. [para. 27].

Lower Similkameen Indian Band v. Al­lison (1996), 115 F.T.R. 247 (T.D.), refd to. [para. 28].

Kiku Fisheries Ltd. v. Canadian North Pacific Ocean Corp. (1997), 137 F.T.R. 192 (T.D.), refd to. [para. 28].

McLellan v. Canada (Solicitor General) (1998), 155 F.T.R. 291 (T.D.), refd to. [para. 28].

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321; 4 C.C.L.T.(2d) 1; 43 C.P.C.(2d) 105; 49 B.C.L.R.(2d) 273; 74 D.L.R.(4th) 321; [1990] 6 W.W.R. 385, refd to. [para. 30].

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

Thompson v. Canada (Minister of Citizen­ship and Immigration) (1996), 118 F.T.R. 269; 37 Imm. L.R.(2d) 9 (T.D.), refd to. [para. 31].

Williams v. Canada (Minister of Citizen­ship and Immigration) (1997), 212 N.R. 63 (F.C.A.), refd to. [para. 31].

Barron v. Minister of National Revenue (1997), 209 N.R. 392 (F.C.A.), refd to. [para. 32].

Kiely v. Canada (Minister of Justice) (1987), 10 F.T.R. 10 (T.D.), refd to. [para. 35].

Great Pacific Contracting Ltd. v. Harwyn Properties (1981), 29 B.C.L.R. 145 (S.C.), refd to. [para. 37].

Figgie International Inc. v. Citywide Machine Wholesale Inc. (1993), 66 F.T.R. 7; 50 C.P.C.(3d) 89 (T.D.), refd to. [para. 37].

Chingee et al. v. Chingee et al. (1998), 144 F.T.R. 156 (T.D.), refd to. [para. 40].

Cremco Supply Ltd. et al. v. Canada Pipe Co. et al. (1998), 145 F.T.R. 48 (T.D.), refd to. [para. 40].

Huzar et al. v. Canada et al. (1998), 139 F.T.R. 81 (T.D.), refd to. [para. 40].

Statutes Noticed:

Federal Court Act, R.S.C. 1985, c. F-7, sect. 2 [para. 23]; sect. 18(1), sect. 18(3) [para. 22]; sect. 50(1) [para. 36].

Federal Court Rules, rule 50(1) [para. 36]; rule 64 [para. 24].

Fisheries Act, R.S.C. 1985, c. F-14, sect. 7, sect. 9 [para. 32].

Authors and Works Noticed:

de Smith, S.A., Judicial Review of Ad­ministrative Action in Canada (1998), p. 1:1200 [para. 23].

Counsel:

Ray Pollard, for the plaintiff;

Paul Partridge, for the defendant, Her Majesty the Queen;

Murray Blok, of the defendant, B.C. Packers;

David Brown, for the defendant, Titan Fishing.

Solicitors of Record:

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

Morris Rosenberg, Deputy Attorney Gen­eral, Ottawa, Ontario, for the defendant, Her Majesty the Queen;

Russell & DuMoulin, Vancouver, British Columbia, for the defendant, B.C. Packers;

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

These motions were heard on June 14, 1999, at Vancouver, British Columbia, before Hargrave, Prothonotary, of the Feder­al Court of Canada, Trial Division, who delivered the following judgment on July 12, 1999.