Carpenter Fishing Corp. v. Canada
T-554-91
Teitelbaum J.
4/3/97
16 pp.
Application to stay Campbell J.'s declaration ([1997] 1 F.C. 874) pending appeal-In 1990 Minister ordering implementation of individual vessel quotas (IVQ) for halibut fishery on west coast-IVQ implemented for 1991 fishery, continuing since then-IVQ allotted on basis of formula under which 70% based on best year of historical catch of current licence owner for 1986 to 1989 and 30% based on vessel length-Current Owner Restriction (COR) in formula resulting in some licence holders being shut out of best year of historical catch for four-year period-Campbell J. holding 1990 decision to implement COR unlawful, nullity; declaring each subsequent similar decision also unlawful, nullity-Court of Appeal granting Pacific Coast Fishing Vessel Owners' Guild intervenor status in appeal-Application denied-Criteria in RJR -MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 applied-(1) Intervenor having arguable case-Submission to be made to Court of Appeal not frivolous-Had Court of Appeal thought what intervenor intending to submit frivolous, would not have allowed intervention-(2) Intervenor not establishing members will suffer irreparable harm if decision not stayed-Department of Fisheries and Oceans (DFO) having discretion to institute quota system without COR, on any basis Minister in his discretion considering fair to all licence holders-Not indicating irreparable harm to any particular group, whether plaintiffs or intervenors-Applicants alleging if appeal successful, will be significant pressure on DFO to reinstate any losses incurred by 395 licence holders, and to adjust everyone's IVQ in subsequent years to redress loss, thus increasing administrative burden on DFO-Inconvenience to DFO not harm, let alone irreparable harm to intervenor-Pressure to adjust IVQ in subsequent years indicating no irreparable harm to any of parties because regardless of what happens quota can be readjusted-If Campbell J.'s decision so flawed that giving effect to order would cause chaos to halibut fishery, defendants would surely have applied for stay themselves-In fact defendants saying will not be irreparably harmed as capable of managing halibut fishery whether or not stay granted-If Campbell J.'s decision overturned by Court of Appeal, Minister in setting quota for following years could increase quota of each licence holder having loss because of decision of Campbell J.-(3) Balance of convenience lying with plaintiffs-Plaintiffs deprived of part of their fish quota for six years-"Their fish quota" because COR aspect of IVQ declared invalid, discriminatory, remaining so until Court of Appeal deciding otherwise-Only irreparable harm would be to plaintiffs, who have decision in their favour-Should not have to wait additional year to get proper fishing quota.