Radil Bros. Fishing Co. v. Canada ( Department of Fisheries and Oceans, Regional Director General, Pacific Region )
T-382-99
Hargrave P.
12/7/99
19 pp.
Licences-Motion of Crown to strike statement of claim, or for stay, or for further and better particulars-Action, seeking declaratory relief and damages, arising out of exchange of trawl licence from plaintiff's fishing vessel Seacrest to Pacific Eagle and reciprocal transfer of licence package consisting of A salmon licence and trawl licence from Pacific Eagle to Seacrest-At time of transfer parties involved aware of likely imposition of fishing quotas based on each fisherman's catch history-Although plaintiff careful to stipulate its catch history not be alienated with licence, and in spite of assurance of Director of Licensing for Department of Fisheries and Oceans (DFO) transfer would not affect catch history, Minister of Fisheries issued quotas on basis of present vessel's catch history-Fishing licences in finite supply, having substantial market value, far beyond token yearly licence fee-Fishing licence passing no interest and always revocable-Licences expire yearly and new ones issued in each instance-Anyone may purchase licence and sell it at hundred-fold profit-Therefore, Minister argues, plaintiff had no control at law as to licence dealt it and, thus, having no cause of action, statement of claim ought to be struck out-Motion dismissed-DFO says Court lacking jurisdiction in action, as opposed to application for judicial review, to grant declaratory relief against "federal board, commission or tribunal"-Recently, in Johnson v. Ramsay Fishing Co. (1987), 47 D.L.R. (4th) 544 (F.C.T.D.), Joyal J. used declaration, as flexible tool, in action involving fishing licence-Therefore, Court unable to say declaratory relief sought herein plainly, obviously and beyond doubt forlorn-Furthermore, remedy applied for discretionary and, where serious issues of law involved, they ought not to be struck out on interlocutory motion, but best left to be answered at trial-DFO also arguing as Fisheries Act giving Minister absolute discretion with respect to issuance of fishing licences, Court should not second-guess Minister's decision-However, Minister dealt not only with fishing licence, but also with fisherman's work product, tonnage of fish caught-As calculation of quota may be based on wrong catch history, plaintiff may argue decision based upon irrelevant or wrong consideration-Court hesitant to strike out case as being, on its face, plainly and obviously incapable of succeeding-Moreover, statement of claim ought not to be struck out, without opportunity to amend, if scintilla of cause of action: Kiely v. The Queen (1987), 10 F.T.R. 10 (F.C.T.D.)-Plaintiff allowed to file amended statement of claim to more clearly plead grounds upon which Minister's discretionary decision might be challenged-Stay denied as two Federal Court proceedings, although based on same factual circumstances, now seeking completely different relief-Circumstances surrounding B.C. Supreme Court action, based on identical factual circumstances, not bringing parties within ambit of Federal Court Act, s. 50 so as to require stay-As to particulars, burden on requesting party to demonstrate particulars necessary-Burden may be discharge by affidavit subject, of course, to need for particulars being apparent on face of pleading: neither situation here-Request for particulars denied, but time for filing defence extended-This second proceeding and first proceeding, judicial review now in form of action, have been subject of plethora of motions, some of which appear to be covering similar ground, but brought by different applicant-Hopefully, parties will shortly get into merits of claim: facts interesting and issues important-Moreover, even though amount at stake large, limits to what individual litigants and taxpayers, in support of Crown, ought to be asked to pay in order to determine these matters-Federal Court Act, R.S.C., 1985, c. F-7, s. 50-Fisheries Act, R.S.C., 1985, c. F-14.