Digests

Jada Fishing Co. v. Canada (Minister of Fisheries and Oceans)

A-11-01

2002 FCA 103, Malone J.A.

22/3/02

9 pp.

Appeal from dismissal of application for judicial review ((2000), 198 F.T.R. 161 (F.C.T.D.), in respect of decision of Pacific Region Licence Appeal Board--Groundfish Panel with regard to appellants' allocated individual vessel quotas (IVQs) for fishing licence--Appellants owned fishing vessel Howe Bay to which original fishing licence attached--Howe Bay lost at sea in 1990--Because insurance company refused to pay for loss, appellants unable to fish pursuant to original licence--In 1992 traded original licence for licence T-063 which attached to Glen Coe--T-063 originally attached to Scotia Cape, lost at sea in 1987--Appellants able to fish on licence T-063 for only 3 months in 1992--In 1997 quota system introduced for determining allowable catch under existing licences--IVQ based on length of vessel to which licence attached, catch history of that licence for 1987 to 1992 --Appellant's catch history based on three-month period in 1992 for licence T-063--Panel concluded as vessel owners normally given two years under DFO policy to permanently replace vessel, should be compensation for 1988, 1989-- Credited licence with two years based on average catch of vessels in that size range for those years--Also recommended crediting licence with average catch of vessels in size range for 1987, 1988 as Scotia Cape would likely have participated in fisheries--Minister granted appeals so as to adjust catch histories--Appeal dismissed--(1) Appellants asking Court to overturn reviewing Judge's decision, substitute with order that two-year restriction imposed by Panel be severed--Would result in appellants receiving quota based on full-five-year catch history instead of two years recommended by Panel--In essence asking Court to decide Panel should have recommended economically viable quota for licence T-063 based on five years of catch history since found existence of extenuating circumstances--Such intervention amounting to substitution of Court's recommendation for that of Panel-- Beyond scope of Federal Court Act, s. 52(b)(i), permitting Court to dismiss appeal or give judgment Trial Division should have given, and Trial Division could not have substituted its decision for that of Panel in application for judicial review--Court without jurisdiction to grant remedy appellants seeking--(2) Fisheries Act, s. 7 giving Minister absolute discretion to make decisions with regard to fishing licences--Panel merely makes recommendations which Minister entitled to accept, reject--Panel's recommendations not prima facie reviewable--Court can review discretionary decision of Minister based, in part upon Panel's recommendation--Present appeal seeking to set aside Reviewing Judge's order without reference to Minister-- Appeal can only continue as review of Minister's decision, albeit under guise of attack on Panel's recommendation, based on Federal Court Act, s. 18.1(4) as review of exercise of Ministerial discretion--(3) Terms of reference stating Panel must in individual cases provide full rationale to Minister where exceptions to IVQ program recommended-- Recommendations based on extenuating circumstances, must follow certain guidelines--Restrictions suggesting Panel's recommendations to Minister must have rational basis connected to extenuating circumstances and Panel's discretion not as broad as that of Minister--Most important factor significant impact of decision on appellants--Standard of review of Panel's discretionary recommendations should be reasonableness and following Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, recommendations unreasonable if not supported by reasons that could stand up to somewhat probing examination--(4) Decision to trade original licence for licence T-063 main reason for appellants' low IVQ--Reasonable for Panel to base recommendation on licence that appellants held at time of appeal--Not unreasonable to expect appellants to assume risk of business decision--Since catch history following licence, also reasonable for Panel to base recommendations on grace period DFO would have given original owners of licence T-063 after loss of Scotia Cape, i.e. two years to permanently replace vessel--(5) Appellants provided oral hearing, made submissions orally and in writing, represented by counsel-- Difficult to discern any procedural unfairness--Procedure involved exercise of discretion by Minister in non-adversarial process--While subject to requirement of fairness, not attracting standard of natural justice required in adversarial, judicial or quasi-judicial process--Appellants submitting Panel breached requirements of procedural fairness in hearing evidence from DFO officials in absence of appellants, failing to provide notice of use of two-year policy--Nothing indicating DFO officials did anything more than provide Panel with factual information of which appellants had prior knowledge, and which did not prejudice appellants--Where Panel uses knowledge common in industry, test for intervention not whether appellants given chance to comment but whether information relevant--Rational connection between two-year policy and appellants' extenuating circumstances--Lack of notice, opportunity to respond not breach of procedural fairness--Appellants arguing Panel's written decision not decision of entire Panel, but reflected merely opinion of Chair--No clear evidence indicating Panel's recommendation, as written, not reflecting Panel's decision--Federal Court Act, R.S.C., 1985, c. F-7, ss. 18.1(4) (as enacted by S.C. 1990, c. 8, s. 5), 52(b)(i)--Fisheries Act, R.S.C., 1985, c. F-14, s. 7.