Longmire v. Canada
T-2461-90
MacKay J.
28/9/93
16 pp.
Claim for reimbursement or damages for value of scallops in shell returned to sea on orders of fishery officers-Plaintiff charged with fishing in prohibited area of Bay of Fundy-Boat and catch seized, directed to Digby under escort-Scallops still in shell returned to sea-Plaintiff prosecuted under Atlantic Fisheries Regulations, subsequently acquitted-No forfeiture order issued in relation to vessel or catch seized-Claim in amount of $3,744 outstanding at time of trial-Whether scallops in shell, stored in ice in boat's hold, alive when returned to water-Evidence indicating fishery officer believed, on reasonable grounds, majority of shell scallops alive when returned to water-Plaintiff's claim depending upon interpretation and application to present circumstances of Fisheries Act, s. 73(4)-Fishery officer not acting within authority vested under s. 73(4) as scallops not returned to water at time of seizure-Plaintiff ordered to return shell scallops to water only after arrival at wharf, three hours or more after seizure of boat and catch-Conclusion based upon strict interpretation of words in s. 73(4)-Plaintiff entitled to return of things seized or proceeds from sale under s. 73(3) as no conviction or order of forfeiture issued against him-Provisions reflecting concern of Parliament to balance general public interest in conservation of fisheries and interest of individual whose goods seized or anyone else interested in equipment and catch forfeited to Crown-Strict construction of s. 73(4) appropriate in view of purpose of provision-By seizure and disposal of plaintiff's property in circumstances not authorized by Parliament, action of fishery officers resulted in tort of conversion, for which plaintiff entitled to recover full value of scallops in shell-Fishery officer not acting within discretion authorized by s. 73(4), however not breaching duty of fairness owed to plaintiff-No evidence officer acted in bad faith in ordering return of shell scallops to water-Action allowed in amount of $3,744-Fisheries Act, R.S.C., 1985, c. F-14, ss. 71, 72, 73, 74, 75, 76, 77.