Date: 19981211
Docket: T-1602-98
BETWEEN:
THOMAS A. MCKAY, TONY CUNNINGHAM, and CANADIAN FISHERMEN'S DEFENCE SOCIETY, a body corporate
Plaintiffs
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA, as represented by the Minister of Fisheries and Oceans for Canada
Defendant
REASONS AND ORDER
WETSTON J.
[1] In their Statement of Claim dated August 10, 1998, the plaintiffs claim for:
- interim, interlocutory and /or permanent injunctions,
- mandatory injunctions, and
- declarations of right,
respecting the decisions, policies and practices of the Minister of Fisheries and Oceans of Canada and/or his officials ["DFO"] that result in the creation of forms of private property in, and the privatization of, the commercial groundfishery in the Scotia-Fundy area..., by
| (a) allocating and/or assigning individual fish quotas to current licence holders based upon the alleged past catch history of the license holder from 1986 to 1993, |
| (b) allocating and/or assigning pre-determined quantities of fish and/or portions of total allowable catch to current licence holders, usually corporate fishing enterprises, assuring them access in the future to annual, transferable allocations of fish, thus creating Enterprise Allocations, |
| (c) transferring and/or issuing replacement IQs from the current licence holder to a person recommended or nominated by the current licence holder, thus creating Individual Transferable Quotas, and |
| (d) permitting and/or tolerating a third party to fish, and to pay the current licence holder for the right to fish, the IQ allocated or assigned the current licence holder, who does not himself fish his IQ, a practice referred to herein as "armchair fishing". |
Injunctive Relief
[2] The defendant submits that the relief sought by the plaintiffs may be obtained only by means of an application for judicial review in the manner prescribed by s. 18 of the Federal Court Act and in particular s. 18(3): Mundle v. Canada (Minister of National Defence) et al. (1995), 85 F.T.R. 258 ["Mundle"]. The plaintiffs submit that they may pursue this relief through an action commenced by statement of claim: Liebmann v. Canada (Minister of National Defence) (1993), 69 F.T.R. 81.
[3] I have considered the submissions and am satisfied that the injunctive relief sought by way of an action is inappropriate and can only be obtained by proceedings in judicial review under s. 18.1. Mundle, supra, provides as follows:
| The net result is that an injunction or a stay in the nature of an injunction can be sought against servants of the federal Crown in the course of judicial review but not otherwise. The power to grant such a stay has been expressly given to the Trial Division in the present 18.2 of the Federal Court Act, and that power had been held to exist by implication prior to that time. Thus the plaintiff cannot succeed on this application for an injunction, made in the course of an action against the Crown because in such an action he cannot obtain injunctive relief either against the Crown or against a servant of the Crown. |
[4] Accordingly, those portions of the Statement of Claim seeking injunctive relief are struck.
Declaratory relief
[5] The defendant submits that the portions of the Statement of Claim dealing with declaratory relief ought to be struck. It relies on Carpenter Fishing Corp. et al v. Canada (Minister of Fisheries and Oceans)et al. (1997), 221 N.R. 372 ["Carpenter"].
[6] In Carpenter, the Federal Court of Appeal considered an action in which the respondents filed a statement of claim against the Crown and against the Minister of Fisheries and Ocean whereby they sought a declaration that "the Current Owner Restriction" ["COR"] in the catch history allocation was unlawful. The Court of Appeal overturned the decision of the trial judge, in which the decision to implement COR and the decisions of successive Ministers to maintain it were declared unlawful and a nullity.
[7] Décary J.A. stated in Carpenter (at p. 379):
| In my view, the trial judge erred in hearing and assessing the evidence on the basis that what was in issue was not legislative action. That error lead [sic] him to impose adherence to rules of natural justice that did not apply and to examine the evidence as if he was entitled to second-guess the propriety of the quota attributed by the Minister. |
| The imposition of a quota policy (as opposed to the granting of a specific licence) is a discretionary decision in the nature of policy or legislative action. Policy guidelines outlining the general requirements for the granting of licenses are not regulations; nor do they have the force of law. It flows from the decision of the Supreme Court o f Canada in Maple Lodge Farms v. Canada (Government) and Minister of Economic Development and from the decision of this court in Canadian Association of Regulated Importers et al. v. Canada (Attorney General), that the Minister, provided he does not fetter his discretion to grant a license by treating the guidelines as binding upon him, may validly and properly indicate the kind of considerations by which he will be guided as a general rule in allocating quotas. These discretionary policy guidelines are not subject to judicial review, save according to the three exceptions set out in Maple Lodge Farms: bad faith, nonconformity with the principles of natural justice where their application is required by statute and reliance placed upon considerations that are irrelevant or extraneous to the statutory purpose. |
| ...To the extent that the policy is developed by the Minister in the exercise of his general duties under the Fisheries Act and that it is not blindly applied by him in the later exercise of his discretion when granting a specific license, the act of granting the license, however administrative in nature and otherwise subject to ordinary judicial review as it may be, cannot be challenged under the general rules applicable to administrative actions insofar as its policy component, i.e., the implementation of the quota policy by the Minister is concerned. |
[8] It would appear that the Court of Appeal in Carpenter left open the possibility that a party may attack by way of an action discretionary policy guidelines and seek declaratory relief with respect to that challenge. However, the Court of Appeal made clear that such relief, which is normally available on judicial review, may only be obtained for breach of the one of the three exceptions outlined in Maple Lodge Farms v. Canada (Government) and Minister of Economic Development [1982] 2 S.C.R. 2, 44 N.R. 354 ["Maple Lodge Farms"]. Those standards are: bad faith, nonconformity with the principles of natural justice where the application of those principles is required by statute, and reliance upon considerations that are irrelevant or extraneous to the statutory purpose.
[9] I note in this respect the further comments of Décary J.A. in Carpenter (at pp. 379-380):
| When examining an attack on an administrative action - the granting of the licence - a component of which is a legislative action - the establishment of a quota policy - reviewing courts should be careful not to apply to the legislative component the standard of review applicable to administrative functions. The line may be a fine one to draw but whenever an indirect attack on a quota policy is made through a direct attack on the granting of a licence, courts should isolate the former and apply to it the standards applicable to the review of legislative action as defined in Maple Lodge Farms. |
[10] Rule 174 requires the plaintiff to plead the material facts upon which it relies. It appears that the plaintiffs pleaded in their Statement of Claim material facts which support the exceptions for review of discretionary policy guidelines as set out in Maple Lodge Farms.
[11] Paragraph 9 o f the Statement of Claim reads:
| The Plaintiffs say that DFO has no authority to base current IQs on the past catch history 1986-1993, to base the calculation of Community Quotas on the catch history of individual licence holders, or to permit individual licence holders to carry with them an IQ based on their catch history. Catch history is an irrelevant factor and extraneous consideation in the determination of IQs and/or Community Quotas. |
[12] Paragraph 10 of the Statement of Claim reads:
| Furthermore, the Plaintiffs say that the records of past catch history for 1986-1993 in the FG < 45' sector in the Scotia-Fundy area groundfishery are so flawed and unreliable that their use is arbitrary, unreasonable, discriminatory, an abuse of discretion, and/or an act of bad faith, and illegal. |
[13] Obviously, if the Crown requires further or better particulars of the plaintiff's allegations, it may bring a motion for particulars pursuant to Rule 181(2).
[14] Accordingly, the motion is allowed in part. Only those paragraphs of the Statement of Claim seeking injunctive relief are struck. Costs are in the cause.
Howard I. Wetston
Judge
Ottawa, Ontario
December 11, 1998