Skip to content

Nothing fishy here: Federal Court dismisses application for judicial review in PIIFCAF case

Jennifer Taylor

Introduction

Kirby Elson had been fishing in Newfoundland and Labrador for about 50 years when the policy on Preserving the Independence of the Inshore Fleet in Canada’s Atlantic Fisheries (“PIIFCAF”) was introduced in 2007. Concerned it would cause him to lose his fishing enterprise, he sought an exemption from complying with PIIFCAF. After various procedural steps, the matter ended up in Federal Court as an application for judicial review of Fisheries Minister Hunter Tootoo’s December 2015 decision that the Applicant’s exemption request should be denied (accepting a recommendation of the Fisheries Licence Appeal Board).

In an 86-page decision reported as Elson v Canada (Attorney General), 2017 FC 459, Justice Strickland has dismissed the application and upheld the Minister’s denial. This means the Applicant no longer has valid fishing licences.

Not only is this decision important for the fishing industry in Atlantic Canada, but it also takes a broader look at the extent of, and limits on, the Minister’s discretion over fishing licences under section 7 of the Fisheries Act.

PIIFCAF and controlling agreements

PIIFCAF was intended “to reaffirm the importance of maintaining an independent and economically viable inshore fleet; strengthen the application of the Owner-Operator and Fleet Separation Policies; ensure that the benefits of fishing licences flow to the fish harvester and the coastal community; and, assist fish harvesters to retain control of their fishing enterprises.”1

As a result of PIIFCAF, an Atlantic fish harvester would only be eligible for a new or replacement licence if they were not party to a “controlling agreement.” A controlling agreement is a form of trust agreement that lets someone other than the licence holder (say, a fish processing company) make decisions about licence transfers.

The Applicant had been in a controlling agreement with Labrador Sea Products Inc. and Quinlan Brothers Limited since 2003. In 2007, PIIFCAF gave licence holders in controlling agreements seven years to comply. At the end of 2014, the Applicant was still in his controlling agreement. As mentioned, he unsuccessfully tried to seek an exemption from PIIFCAF so he could remain in the controlling agreement arrangement.

The Minister’s exercise of discretion

The legal issues on judicial review were whether the Minister (1) based his decision on irrelevant factors; (2) fettered (improperly limited) his discretion; or (3) had a closed mind when considering the Applicant’s request for an exemption.

(1) Irrelevant factors?

The Applicant argued that PIIFCAF was an irrelevant consideration because, he said, the policy itself was actually unconstitutional. The Applicant framed PIIFCAF’s requirement for fish harvesters to get out of controlling agreements as an improper interference with the provincial power over the regulation of contracts.

Justice Strickland disagreed, finding that the Minister had the discretion to “consider social, cultural or economic goals or policies when deciding whether or not to issue fishing licences”2 as part of the federal power over fisheries. PIIFCAF, she found, was meant to achieve these kinds of objectives in Atlantic Canada.

As Justice Strickland explained: “the Minister had determined that controlling agreements, which were devised to defeat the existing licencing policies, resulted in negative socio-economic consequences for coastal communities.3

Furthermore, Justice Strickland noted that PIIFCAF, as a policy and not legislation or a regulation, could not actually “be subject to a division of powers challenge.”4 (There was no constitutional challenge to section 7 of the Fisheries Act, which grants the Minister extremely broad discretion over fishing licences and related issues.)

Justice Strickland found PIIFCAF “does not frustrate contracts”; licence holders still have wide contractual freedom: “it does not prevent licence holders from entering into contracts, obtaining financing, using their licence as collateral, supplying their catch to whomever they wish or otherwise organizing their business affairs as they see fit.”5

(2) Fettered discretion?

The mandatory nature of PIIFCAF, and the absence of exemptions for individual harvesters, did not fetter the Minister’s discretion, according to Justice Strickland. The Applicant had the opportunity to seek an individual exemption from the Minister, through correspondence with DFO and through the Appeal Board process. But although the Applicant’s position was that a controlling agreement was the only way he could afford to keep fishing, he had not submitted any supporting financial or other evidence during that process.

This was not the end of Justice Strickland’s analysis, however. She ended up finding that the Minister had fettered his discretion after all.

In particular, she found a flaw in the Minister’s decision letter from December 2015 indicating that he’d improperly limited his discretion by concentrating on PIIFCAF and not explicitly relying on the Fisheries Act as a source of his decision-making authority: “the Minister’s decision letter failed to acknowledge the source and breadth of his broad discretion under section 7 of the Fisheries Act, referring only to the PIIFCAF Policy. He thereby fettered his discretion by not also considering that it was open to him to afford the relief sought other than by way of the PIIFCAF Policy and the appeal process.”6

(3) Closed mind?

Despite her conclusion that the Minister fettered his discretion, Justice Strickland found that the Applicant had not met the stricter test to show that the “Minister’s mind was closed”;7 the Minister had not prejudged the issue before it came to him, even though he decided against the Applicant.

Remedy

Justice Strickland relied on a Federal Court of Appeal decision holding that a “decision that is the product of a fettered discretion must per se be unreasonable.”8 Importantly, however, that did not automatically result in a remedy for Mr. Elson. This is because of Justice Strickland’s finding that the available remedy—returning the matter to the Minister—would not have made any difference to the result.

The Applicant did not meet the requirements of PIIFCAF, and the Minister would still have the discretion to deny him an exemption, so Justice Strickland decided there was no point in sending it back.

This decision could yet be appealed.

In the meantime, PIIFCAF continues to apply – and continues to prevent Mr. Elson from fishing his licences if he remains party to a controlling agreement.

This update is intended for general information only. If you have questions about how this case may affect you, please contact our fisheries law practitioners Will Moreira, QC, FCIArb and Sadira Jan in Halifax, or Kim Walsh in St. John’s.


1 Paragraph 6.
2 Paragraph 51.
3 Paragraph 72.
4 Paragraph 56.
5 Paragraph 73.
6 Paragraph 135.
7 Paragraph 146.
8 Paragraph 153 (see also paragraph 25).

SHARE

Archive

Search Archive


 
 

Recognizing subtle discrimination in the workplace: insights from recent legal cases

March 4, 2024

By Sheila Mecking and Michiko Gartshore Subtle discrimination can have a much stronger and longer effect on employees when not properly addressed. It can also result in costly consequences for an employer who does not…

Read More

Immediate changes to travel eligibility for citizens of Mexico

February 29, 2024

By Brittany Trafford and Brendan Sheridan Today Immigration, Refugees and Citizenship Canada (“IRCC”) has announced significant changes to the travel requirements for Mexican citizens. As of February 29, 2024 at 11:30p.m. Eastern Time, all electronic…

Read More

Updated guidance on business reporting obligations under Canada’s supply chain transparency legislation

February 23, 2024

By Christine Pound, ICD.D., Twila Reid, ICD.D., Sarah Dever Letson, CIPP/C, Hilary Newman and Daniel Roth Introduction As we reported on November 30, 2023, the Fighting Against Forced Labour and Child Labour in Supply Chains…

Read More

Trustees beware! New trust reporting and disclosure requirements under the Income Tax Act are here – are you ready for them?

February 21, 2024

By Richard Niedermayer, K.C., TEP  & Rackelle Awad New trust disclosure rules originally announced on February 27, 2018, are now in force, and trusts with taxation years ending on or after December 31, 2023 are…

Read More

Proposed Criminal Interest Rate Regulations: exemptions to the lower criminal interest rate

February 14, 2024

By David Wedlake and Andrew Paul In late December 2023, the Federal Government issued draft Criminal Interest Rate Regulations under the Criminal Code. These proposed regulations follow the Budget Implementation Act, 2023, No. 1 which…

Read More

Outlook for 2024 Proxy Season

February 9, 2024

By Andrew Burke, Colleen Keyes, Gavin Stuttard, David Slipp and Logan Walters With proxy season on the horizon, many public companies are once again preparing their annual disclosure documents and shareholder materials for their annual…

Read More

Significant changes announced for new study permit applications

February 6, 2024

By Brendan Sheridan and Tiegan Scott The Government of Canada recently announced further changes to the international student program that not only limits the number of new study permit applicants per year, but also increases…

Read More

Plans of arrangement come to Newfoundland and Labrador

January 30, 2024

By Tauna Staniland, K.C., ICD.D, Joe Thorne, and Nadine Otten What can you do when your corporation wants to complete a complex transaction requiring significant corporate restructuring that cannot be easily completed under the corporation’s…

Read More

Energy Watch

January 29, 2024

Stewart McKelvey is pleased to present Energy Watch – a review of key legislative and policy advancements in the renewable energy sector in 2023 in each of Newfoundland and Labrador, Nova Scotia and New Brunswick…

Read More

Beyond the border: A year end immigration wrap-up

December 21, 2023

We are pleased to present Beyond the border: A year end immigration wrap-up. Compiled by Lawyers from our Immigration team, this 2023 update covers topics including the Government of Canada’s ambitious immigration plans for the future;…

Read More

Search Archive


Scroll To Top