Date: 20060217
Docket: T-775-05
Citation: 2006 FC 222
Ottawa, Ontario, the 17th day of February 2006
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
ASSOCIATION DES CRABIERS ACADIENS,
duly incorporated under the laws
of the province of New Brunswick,
ASSOCIATION DES CRABIERS DE LA BAIE,
an association duly registered under the laws
of the province of Quebec
and
ASSOCIATION DES CRABIERS GASPÉSIENS,
an association duly registered under the laws
of the province of Quebec
Applicants
- and -
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
1. INTRODUCTION
[1] This motion is made in connection with an application for judicial review. The motion is seeking an order directing the defendant (respondent) to provide the plaintiffs (applicants) with additional documents. Pursuant to Rule 317, the applicants are seeking the filing of two documents and any changes to the said documents in the possession of the federal entity which took the impugned decision. The respondent maintained that the documents are not relevant since they were not before the decision-maker. Further, he noted that these documents were created only after the decision was rendered.
[2] The applicants are seeking judicial review of the decision by the Minister of Fisheries and Oceans made on or about April 4, 2005 to issue a snow crab fishing permit authorizing the taking of a quota of 480 metric tons of snow crabs to the Association des pêcheurs de poissons de fond acadiens (APPFA) in exchange for a payment to the Department of Fisheries and Oceans (DFO) of $1,900,000 to enable the DFO to finance its activities.
[3] The decision, at least as communicated to the applicants by fax on April 4, 2005, reads as follows:
[translation]
Further to call for tenders on project F4697-040016, the bid received from the Association des Pêcheurs de Poissons de Fond Acadiens has been accepted by the Department.
[4] As to the application for judicial review, the applicants (that is, the plaintiffs) are seeking a declaration that the Minister did not have jurisdiction and/or exceeded his jurisdiction when he made the decision to issue a snow crab fishing permit to the APPFA in exchange for the sum of $1,900,000 to be used to finance the DFO’s activities; a declaration that the snow crab fishing permit issued to the APPFA is invalid since the Minister did not have the power to issue a fishing permit in exchange for the sum of $1,900,000 to finance the DFO’s activities; a declaration that the Minister did not have the power to delegate and/or exceeded his power to delegate his discretionary authority to issue fishing permits and his duty to manage fisheries efficiently to the APPFA; and an order quashing the Minister’s decision of April 4, 2005 to issue a snow crab fishing permit to the APPFA authorizing the taking of 480 mt.
[5] As to the motion at bar, the applicants are seeking an order from this Court that the following documents be filed: a copy of the draft agreement concluded with APPFA in 2005 regarding the issuing of a fishing permit and the taking of 480 metric tons of snow crabs; a copy of the fishing permit issued to the APPFA for the 480 metric tons; and a copy of any changes to the aforesaid documents.
[6] This case began when the [translation] “project call for tenders”, the closing date of which was March 23, 2005, was sent to the DFO, Finance and Material Management, in Moncton. Its primary purpose was, inter alia:
[translation]
. . . the purpose of improving fishing management in these zones and financing the additional activities of the Department. A quota not exceeding 480 metric tons of snow crabs was identified for the DFO’s additional activities to improve the overall management of fishing in these zones. The promoter’s financial obligations amount to $1,900,000.
[7] The call for tenders was issued by Carole LeBlanc, contracting and procurement officer.
[8] The fax of April 4, 2005 indicating that the APPFA bid [translation] “has been accepted by the Department” was sent out by Monique Baker, Senior Advisor, Shellfish, with the DFO for the Gulf region.
[9] Ms. Leblanc and Ms. Baker both signed affidavits regarding this case. Ms. Baker stated that the documents sought by the applicants existed, but the draft agreement with the APPFA was concluded on April 12, 2005 and the fishing permit issued on April 29, 2005.
[10] Ms. LeBlanc, Ms. Baker and other individuals were members of the review committee. On March 30, 2005, Ms. LeBlanc sent a letter to J.B. Jones, General Manager of the Gulf region, recommending that the quota be awarded to the APPFA. On the same day, Francis R. Breau, Acting Regional General Manager, signed the approval on behalf of Mr. Jones.
2. ISSUES
A. Are the documents relevant?
B. If the documents are relevant, must they be filed despite the fact that they did not exist when the decision was made?
C. If the documents are relevant, must they be filed despite the fact that they were not before the decision-maker?
3. ANALYSIS
[11] The documents are clearly relevant in view of the decision challenged by this application for judicial review.
[12] It does not much matter that the documents did not exist when the decision was made. The applicants were informed that the decision received from the APPFA had been approved by the Minister. As it is not only necessary to have a contract but a fishing licence for the contract to be enforceable, and in the case at bar the contract had been awarded, the Minister could not then argue that he could not provide the documents since the contract was not finalized. “Equity looks on as done that which ought to be done”.
[13] As to the fact that the documents were not before the decision-maker, the filing thereof cannot be avoided by failing to supply them to the decision-maker. As indicated in Tremblay v. Canada (Attorney General), 2005 FC 339, [2005] F.C.J. No. 421 (QL), the issue is not only whether the documents were before the decision-maker but whether they should have been before him.
[14] Irrespective of the time of creation of the documents, they are directly related to the decision nevertheless and in such circumstances cannot be ignored. The documents in question still flow directly from what was decided, whether on March 30 or April 4, 2005.
[15] In general, an application for judicial review is based on the documentation before the original decision-maker. However, if it is not possible to decide the question, there are exceptions, for instance where the tribunal’s authority is in issue. It will not suffice for the Minister to argue that the documents could have been obtained by an access to information application. As mentioned by Phelen J. in Cooke v. Canada (Correctional Service), 2005 FC 712, [2005] F.C.J. No. 886 (QL), at paragraphs 22 and 23 :
¶ 22 I reject any suggestion made by the Respondent that an applicant must use such indirect means as the Access to Information Act to secure materials in a tribunal's possession where the tribunal had failed to meet its obligations under Rule 318(1).
¶ 23 Since the material which is "relevant to an application" is material which may affect the decision that this Court may make; and, in this instance the Applicant clearly attacked the adequacy of the investigation, the material requested by the Applicant under Rule 317 should have been provided to him. (CBC v. Paul, [2001] F.C.J. No. 542, 2001 FCA 93).
[16] In accordance with the analysis in Gitxsan Treaty Society v. Hospital Employees’ Union (1999), 249 N.R. 37, [2000] 1 FC 135 (C.A.), [1999] F.C.J. No. 1192 (QL), I am of the view that the documents should be filed.
[17] The applicants also sought an order varying an earlier order on deadlines to have a cross‑examination postponed on account of circumstances beyond the parties’ control, and a further deadline for filing their record pursuant to Rule 309. The respondent consented to the extension of time.
ORDER
THIS COURT ORDERS:
1. The motion is granted;
2. The respondent shall provide the applicants with the following documents:
(a) a copy of the draft agreement concluded with the APPFA in 2005 regarding the issuance of a fishing permit and the taking of 480 metric tons of snow crabs;
(b) a copy of the fishing permit issued to the APPFA regarding the 480 metric tons; and
(c) a copy of any changes to the aforesaid documents;
3. The applicants have until April 24, 2006 to file their record;
4. The respondent has until May 30, 2006 to file his record;
5. The whole with costs.
“Sean Harrington”
Certified true translation
François Brunet, LLB, BCL
FEDERAL COURT
SOLICITORS OF RECORD
STYLE OF CAUSE: ASSOCIATION DES CRABIERS ACADIENS, duly incorporated under the laws of the province of New Brunswick, ASSOCIATION DES CRABIERS DE LA BAIE, an association duly registered under the laws of the province of Quebec and ASSOCIATION DES CRABIERS GASPÉSIENS, an association duly registered under the laws of the province of Quebec v. ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Fredericton, New Brunswick
DATE OF HEARING: February 13, 2006
REASONS FOR ORDER BY: The Honourable Mr. Justice Harrington
APPEARANCES:
|
Brigitte Sivret
|
FOR THE PLAINTIFFS |
|
Dominique Gallant Kim Duggan
|
FOR THE DEFENDANT |
SOLICITORS OF RECORD:
|
Brigitte Sivret Solicitor/Notary Bathurst, New Brunswick
|
FOR THE PLAINTIFFS |
|
John H. Sims, Q.C. Deputy Attorney General of Canada |
FOR THE DEFENDANT |