Date: 20050831
Docket: T-614-05
Citation: 2005 FC 1191
BETWEEN:
ASSOCIATION DES CRABIERS ACADIENS, a corporation duly constituted
in accordance with the laws of the province of New-Brunswick,
ASSOCIATION DES CRABIERS DE LA BAIE, an association duly
registered in accordance with the laws of the province of Quebec and ASSOCIATION
DES CRABIERS GASPÉSIENS, an association duly registered
according to the laws of the province of Quebec
Applicants
- and -
ATTORNEY GENERAL OF CANADA
Respondent
[1] On or about 10 March 2005, Geoff Regan, Minister of Fisheries and Oceans, decided to announce stabilization of access and allocations of certain fisheries in Atlantic Canada for varying periods, depending on the fishery, of one to five years.
[2] The applicants, who are interested in the crab fishery, have filed an application for judicial review of that decision. In support thereof, they filed an affidavit from Robert Haché, who has had considerable experience and considers himself an expert in the field.
[3] The respondent has moved to strike certain paragraphs of the affidavit. A number of reasons have been advanced. One is that the affidavit is not limited to personal knowledge as required by Federal Court Rule 81. Normally, a judicial review is limited to the material which was before the original decision-maker, in this case the Minister. Mr. Haché's affidavit deals with matters which were not before Mr. Regan. The applicants also submit that the affidavit makes allegations which are not pertinent and is riddled with opinion and hearsay.
[4] After considering the written and oral representations of the parties and considering the caselaw they have submitted, which for the most part comprised the same cases, I have decided to dismiss the application on the grounds that it is premature.
[5] Although Mr. Haché makes reference to material which apparently was not before the Minister, the applicants consider that the information should have been before him when he made his decision.
[6] While Mr. Haché does offer hearsay evidence in his affidavit, there are principled exceptions to the old rigid hearsay rule, and the source of some of the information provided is said to be Canadian government officials. One of these exceptions deals with the issue of jurisdiction, and it is alleged that the Minister exceeded his jurisdiction and, in any event, did not observe procedural fairness based on the claimants' historical legitimate expectations, which were based on prior negotiations.
[7] There are also exceptions to the rule that an affidavit be limited to personal knowledge. An obvious example is opinion evidence from experts.
[8] The respondent has yet to file affidavits in reply. Although it is submitted that the allegedly non-pertinent allegations in the affidavit will require equally non-pertinent affidavit reply, and that judicial economy requires that the debate be properly limited, it is too early to pronounce with any confidence what the issues will boil down to following the filing of affidavits, if any, and cross-examinations, if any.
[9] The standard of judicial review may well be in issue. The respondent has yet to file his memorandum of fact and law.
[10] It certainly cannot be said at this stage that the affidavit is abusive or will cause the respondent prejudice. The only prejudice would be more time and effort which is compensatable in costs.
[11] For all these reasons, I consider that the admissibility of Mr. Haché's affidavit and the weight to be given to it should be left to the appreciation of the judge who hears the judicial review on the merits. That judge will have a more complete record available. For instance, that judge would be in a better position to determine whether expert evidence should be receivable on this application and what weight should be given to Mr. Haché's opinion, given that he has been closely connected with some of the applicants.
[12] The respondent shall have 30 days herefrom to file and serve his supporting affidavits and documentary exhibits contemplated by Rule 307. All other delays shall be adjusted accordingly.
[13] The applicants shall have their costs.
"Sean Harrington"
Judge
Ottawa, Ontario
August 31, 2005
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-614-05
STYLE OF CAUSE: ASSOCIATION DES CRABIERS ACADIENS, a corporation duly constituted in accordance with the laws of the province of New-Brunswick, ASSOCIATION DES CRABIERS DE LA BAIE, an association duly registered in accordance with the laws of the province of Quebec and ASSOCIATION DES CRABIERS GASPÉSIENS, an association duly registered according to the laws of the province of Quebec
AND
ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: HALIFAX, NOVA SCOTIA
DATE OF HEARING: AUGUST 4, 2005
REASONS FOR ORDER : HARRINGTON J.
DATED: AUGUST 31, 2005
APPEARANCES:
Brigitte Sivret FOR APPLICANTS
Ginette Mazerolle FOR RESPONDENT
SOLICITORS OF RECORD:
Brigitte Sivret FOR APPLICANTS
Bathurst, New Brunswick
John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney-General of Canada