Docket No.: T-648-01
Neutral Citation: 2001 FCT 379
Ottawa, Ontario, this 24th day of April, 2001
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
LAURIE CAISSIE, CYRENUS DUGAS,
VINCENT JONES, GILLES HEBERT JR.
Applicants
- and -
THE MINISTER OF FISHERIES AND OCEANS CANADA
Respondents
REASONS FOR ORDER AND ORDER
[1] On April 12, 2001, the applicants, Laurie Caissie, Cyrenus Dugas, Vincent Jones, Gilles Hebert Jr., brought this motion pursuant to Rule 369 of the Federal Court Rules, 1998, SOR/98-106, as amended.
[2] These motions are for the granting of interim injunctions under Rules 372, 373 and 374 of theFederal Court Rules, 1998, SOR/98-106, as amended, ordering the Respondent to deliver necessary snow crab fishing permits and fishing conditions to the applicants, thereby allowing the applicants to engage in the snow crab fishery for the year 2001.
Facts
[3] The applicants, with the exception of Laurie Caissie, have all participated in the snow crab fishery as licence holders in previous years.
[4] On April 4, 2001, the applicants were informed by Fisheries and Oceans Canada that their status as licence holders for snow crab fishery was under review and that no final decision was made.
[5] The applicants have not been afforded any explanation by the agents of Fisheries and Oceans Canada as to why the decision related to the issuance of the permits was delayed.
[6] The applicants' counsel submits that this matter is very urgent because of the fact that the snow crab fishery is going to open within the next few days.
[7] On April 12, 2001, by motion for an interim injunction, the applicants have asked this Court to order the respondent to issue the snow crab fishing licences.
Issue
[8] Should this Court grant an interlocutory injunction ordering the Minister of Fisheries and Oceans Canada to issue snow crab fishing licences to the applicants.
Analysis
[9] The applicants seek an order under Part 8 of the Federal Court Rules, 1998 which provides for preservation of rights pending disposition of proceedings. Rule 372 of the Federal Court Rules, 1998 provides for a motion for an interlocutory injunction prior to the commencement of proceedings in urgent cases. A party seeking such relief in urgent cases must undertake to commence a proceeding.
[10] In this case, the only evidence of any intention by the applicants to initiate a proceeding is contained in the affidavit of the applicant Cyrenus Dugas, submitted to the Court on the day of the hearing. The affiant makes the following declarations amongst others:
...
5. I confirm that it is our instruction to apply for judicial review and/or to commence an action against the Minister and/or his representant.
6. I confirm that I have contacted the other parties, Gilles Hebert, Laurie Caissie and Vincent Jones and that they did confirm their intention do to [sic] the same.
[11] Even if I were to accept this evidence over the well-founded objections of counsel for the respondent, the Court would have to speculate as to the nature of the proceedings intended by the applicants.
[12] It is essential for the Court to know what proceeding this interim injunction is brought within to determine if it has jurisdiction to grant the interim injunction.
[13] I will analyse the nature of the remedy sought, without resolving the jurisdictional issue for the moment. The interim relief sought by the applicants is that of mandamus. The applicants seek an order from this Court ordering the Minister to issue licences for the snow crab fishery in favour of the applicants.
[14] The applicants are essentially seeking to have this Court exercise discretion which Parliament, pursuant to s. 7 of the Fisheries Act, has granted to the Minister of Fisheries and Oceans Canada. Section 7 of the Fisheries Act[1] provides as follows:
7. (1) Subject to subsection (2), the Minister may, in his absolute discretion, wherever the exclusive right of fishing does not already exist by law, issue or authorize to be issued leases and licences for fisheries or fishing, wherever situated or carried on.
7.(1) En l'absence d'exclusivité du droit de pêche conférée par la loi, le ministre peut, à discrétion, octroyer des baux et permis de pêche ainsi que des licences d'exploitation de pêcheries - ou en permettre l'octroi -, indépendamment du lieu de l'exploitation ou de l'activité de pêche.
(2) Except as otherwise provided in this Act, leases or licences for any term exceeding nine years shall be issued only under the authority of the Governor in Council.
(2) Sous réserve des autres dispositions de la présente loi, l'octroi de baux, permis et licences pour un terme supérieur à neuf ans est subordonné à l'autorisation du gouverneur général en conseil.
[15] The statute creates a discretionary authority to issue such permits and did not create a duty to issue them. In Hahlon v. Canada (Minister of Employment and Immigration)[2] the Federal Court of Appeal held that the remedy of mandamus may be appropriate to compel the performance of a public duty, however, it cannot dictate the result to be achieved.
[16] The applicants are not seeking an order to compel the Minister to make a decision, which remedy may be appropriately considered by this Court. The applicants are seeking to have this court dictate the result to be achieved, the issuance of licences, which relief is not within the Court's discretion to grant but that of the Minister.
[17] Consideration must also be given to section 22 of the Crown Liability and Proceedings Act.[3] Subsection 22(1) provides only for an order declaratory of the rights of the parties and specifically prohibits, as against the Crown, the grant of an injunction or an order for specific performance.
[18] Even if one were to accept that the underlying intended proceedings were clearly defined, the
interlocutory remedy sought by the applicants, an order of this court ordering the Minister to issue fishing licences, is not a remedy available to them at law. The applicants have therefore failed to establish a serious issue. It follows that the applicants have failed to meet the low threshold of the first branch of the tripartite test set out in RJR-Macdonald Inc.[4] Since the tripartite test is conjunctive, it is not necessary for me to consider the second and third branches.
[19] For the above reasons the applicants' motions for interlocutory injunctions will be dismissed.
ORDER
THIS COURT ORDERS that:
1. The applicants' motions for interlocutory injunctions are dismissed.
2. No costs are awarded on any or all of these motions.
"Edmond P. Blanchard"
Judge