Ottawa, Ontario, August 18, 2006
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
ABRAHMA GENGE, MARTIN HOUSE,
RAYMOND RYAN, HUBERT GENGE,
ROBERT SPENCE, DAN PARSONS,
AND THE ESTATE OF WADE LAVERS
and
IN RIGHT OF CANADA AS REPRESENTED BY
THE DEPARTMENT OF FISHERIES AND OCEANS
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1] This is an application for judicial review of a decision of the respondent, the Department of Fisheries and Oceans (DFO), dated October 19, 2004, which refused the applicants’ request for the re-issuance of shrimp licences.
[2] The nine named applicants seek a mandatory injunction compelling the issuance of a shrimp licence to each of the applicants for the purpose of transfer.
[3] The respondent requests that this application be dismissed with costs.
Background
[4] In 1995 and 1996, the applicants participated in a program offered by the DFO, known as the Groundfish Licence Retirement Program (GLRP). The GLRP was part of The Atlantic Groundfish Strategy (TAGS) program, which was created to reduce the harvesting capacity of Atlantic groundfish in order to alleviate the problem of declining fish stocks. The GLRP was a voluntary program based on a reverse-auction process whereby eligible licence holders were invited to submit a bid to the DFO stating how much money they would accept to surrender their groundfish licence and permanently exit the commercial fishery. Participants of the GLRP were also required to surrender all of their other fishing licences, or where applicable, have them reissued in accordance with DFO licensing policy in their region. Participants were advised that in preparing a realistic figure for their bid, they should consider how much money they could receive for the transfer of any non-groundfish fishing licences, where permitted by DFO licensing policy.
[5] In each DFO administrative region, the DFO established an Independent Harvesting Adjustment Board (HAB) to consult with the fishing industry and prepare detailed plans to reduce the harvesting capacity of Atlantic groundfish. Industry stakeholders advised the HAB for the Newfoundland and Labrador region that the licence retirement program implemented under the Northern Cod Adjustment and Recovery Program of 1992 had resulted in the transfer of an excessive amount of additional fishing effort and capacity to certain key fisheries, such as lobster and capelin, because licence retirees had been permitted to transfer any non-groundfish licences they held to other fishers. Acting on the industry stakeholders’ recommendations, the HAB for the Newfoundland and Labrador region decided to make the surrender of all commercial fishing licences a condition of participation in the GLRP in that region.
[6] In contrast, participants of the GLRP in other DFO administrative regions were given 24 months to transfer any non-groundfish licences they held. Because participation in the groundfish fisheries in those regions was substantially lower than in the Newfoundland and Labrador region, the harvesting overcapacity that could arise from licence transfers was not a concern. Ultimately, approximately 75 to 80 per cent of the licences retired under the GLRP were retired in the Newfoundland and Labrador region.
[7] The applicants were among those who participated in the GLRP in the Newfoundland and Labrador Region. Each applicant received an amount varying between $250,000 and $400,000 in exchange for his agreement to surrender all of his commercial fishing licences and permanently exit the fishery. The agreement signed by each applicant contained the following extract:
I also understand and agree that in accepting this offer I must:
- immediately surrender my groundfish licence;
- immediately surrender my Personal Fishing Registration and agree to permanently leave the commercial fishery;
- immediately surrender to the Department of Fisheries and Oceans all other commercial fishing licences
- give up any further income support benefits and adjustment options available under The Atlantic Groundfish Strategy.
[8] Each applicant also signed a waiver and release form, which stated:
I, (name of licence holder), (fisher identification number) hereby surrender my Personal Fishing Registration, my commercial groundfish licence and all other commercial fishing licenses in accordance with the terms and conditions of the Groundfish Licence Retirement Program.
I understand that by agreeing to retire my PFR and fishing licences, I forego ever having any other commercial fishing licences issued to me and that I will no longer be able to participate in the commercial fishery.
I hereby release the Government of Canada, its Ministers, officers and employees from all claims, suits, actions or demands of any nature that I have or may have and that are related to or arise from the retirement of my groundfish licence under the Groundfish Licence Retirement Program.
[9] Between 2002 and 2004, counsel for the applicants repeatedly asked the respondent to reissue their shrimp licences for the purpose of transfer. The respondent denied this request. In a letter dated October 19, 2004 addressed to the applicants’ counsel, the respondent explained the reasons for its refusal. The letter stated:
I am writing in response to your request of June 22, 2004 for the issuance of shrimp licences to the above-noted individuals. Your request is made in light of the fact that your clients formerly held shrimp licences and voluntarily relinquished them under rounds one and two of the Groundfish Licence Retirement Program (GLRP) in 1995 and 1996. Your clients received substantial financial assistance in consideration of the relinquishments of the licences they held. It is our understanding that your clients would like to be issued shrimp licences in order to make requests for the issuance of these licences to other eligible fishers as “replacement licences”.
It is the position of the Department of Fisheries and Oceans that no individual can claim an interest in a licence to fish or assert a right to receive a licence to fish whether they previously held a licence or not. A fishing licence is a privilege that terminates upon its expiry. The Minister of Fisheries and Oceans retains absolute discretion, pursuant to section 7 of the Fisheries Act, whether or not to issue a fishing licence.
As noted in our previous correspondence of April 18, 2002, your clients voluntarily opted to retire from the fishery under rounds one and two of the GLRP in 1995 and 1996. Participants in the GLRP in Newfoundland and Labrador agreed to:
- surrender their groundfish licence and Personal Fishing Registration (PFR);
- surrender all other commercial fishing licences;
- permanently exit the commercial fishery; and
- forego any further TAGS Income Support Benefits or adjustment options available under The Atlantic Groundfish Strategy.
Your clients were advised of the above GLRP licence retirement conditions prior to retiring their fishing licences and agreed to these conditions when they accepted the Department’s licence retirement offer in exchange for substantial financial assistance.
In light of the above, your request is denied since the issuance of shrimp licences to your clients would be inconsistent with the conditions under which these individuals retired under the GLRP.
[10] This is the judicial review of the respondent’s refusal to reissue shrimp licences to the applicants.
Issues
[11] The applicants submitted the following issues for consideration:
1. Did the interpretation and application of the GLRP in the Newfoundland and Labrador region amount to discrimination against the fishers in that region?
2. Are the agreements and releases signed under the GLRP in relation to the shrimp licence void on the grounds of economic duress or unconscionability?
3. Did the HAB err in its interpretation and application of the GLRP or act without legislative authority in requiring the applicants to surrender all of their commercial fishing licences?
[12] The respondent submitted the following issues for consideration:
1. Should the applicants’ argument based on a violation of Charter rights be struck because it is not a ground of review raised in the notice of application?
2. Should the applicants’ argument based on economic duress and unconscionability be struck because it is not a ground of review raised in the notice of application, or, in the alternative, should the argument be dismissed on its merits?
3. Should the applicants’ submissions based on the jurisdiction of the HAB be struck because it is not a ground of review raised in the notice of application, or, in the alternative, should the argument be dismissed on its merits?
4. Should the requested relief in the nature of mandamus issue against the respondent to compel the issuance of a fishing licence?
Applicants’ Submissions
[13] The applicants submitted that the interpretation and application of the GLRP amounted to discrimination against fishers of Newfoundland and Labrador, contrary to subsection 15(1) of the Canadian Charter of Rights and Freedoms. The applicants submitted that a complainant under subsection 15(1) must establish that (i) he or she is a member of a discrete and insular minority group, (ii) the group is defined by characteristics analogous to the enumerated grounds of discrimination set out in subsection 15(1), and (iii) the law has a negative impact (see Law Society of British Columbia v. Andrews, [1989] 1 S.C.R. 143). A person’s place of residence may be a personal characteristic which is analogous to a prohibited ground of discrimination (see Archibald v. Canada, [2000] 4 F.C. 479 at paragraphs 21 to 24 (C.A.)). The applicants submitted that being a Newfoundland fisherman is central to the individual’s identity and as such, is a personal characteristic that is analogous to the prohibited grounds of discrimination under subsection 15(1). The applicants submitted that the Newfoundland fishermen were discriminated against in the application of the GLRP because they were precluded from transferring their non-groundfish licences, whereas participants of the GLRP in other regions were permitted to transfer their non-groundfish licences.
[14] The applicants submitted that the agreements and releases signed under the GLRP in relation to the shrimp licence are void on the grounds of economic duress or unconscionability. With respect to economic duress, it was submitted that it is a well recognized principle of Canadian contract law that a certain exertion of pressure in a commercial setting can result in economic duress strong enough to enable someone to avoid a contract. The applicants submitted that due to the cod moratorium, they were under economic duress at the time they signed the agreements and releases, and as a result, they were unable to obtain independent legal advice in relation to the documents signed. The applicants submitted that they were required to submit their bids using documentation and bid values prepared by the DFO. The applicants submitted that they were required to surrender their shrimp licences “without compensation”.
[15] With respect to unconscionability, the applicants submitted that a transaction may be set aside as being unconscionable if the evidence shows that:
1. There is an inequality of bargaining position arising out of ignorance, need or distress of the weaker party;
2. The stronger party has unconscientiously used a position of power to achieve an advantage; and
3. The agreement reached is substantially unfair to the weaker party or is sufficiently divergent from community standards of commercial morality that it should be set aside (see MacDonald v. Canada (1998), 158 F.T.R. 1 at paragraph 27 (T.D.), citing Stephenson v. Hilti (Canada) Ltd. (1989), 29 C.C.E.L. 80 (N.S.S.C.T.D.)).
[16] The applicants submitted that the circumstances surrounding the surrender of the shrimp licences met the requisite test for unconscionability. It was submitted that the applicants were under financial duress due to the closure of the cod fishery three years before; they were required to submit the bids on documentation prepared by the DFO; they were unable to receive independent legal advice due to their financial situation; and they were required to surrender all other licences in order to receive compensation for the groundfish licence.
[17] The applicants submitted that no act or regulation was made authorizing the creation of the HABs to act in relation to the creation or implementation of government policy. The applicants submitted that the HAB for the Newfoundland and Labrador region did not have authority to require the retirement of non-groundfish licences.
Respondent’s Submissions
[18] The respondent submitted that the decision of the Minister whether or not to issue a fishing licence is a matter within the absolute discretion of the Minister, and the standard of review applicable to that decision is that of patent unreasonableness. For this proposition, the respondent relied on the wording of subsection 7(1) of the Fisheries Act, R.S.C. 1985, c. F-14 as well as the decision of Tucker v. Canada (Minister of Fisheries and Oceans) (2000), 197 F.T.R. 66 at paragraphs 13 to 16 (T.D.), aff’d 2001 FCA 384. The respondent submitted that its decision not to reissue shrimp licences to the applicants cannot be said to be patently unreasonable, given the applicants’ voluntary participation in the GLRP, the GLRP’s explicit terms and conditions, the significant financial compensation that the applicants received through the GLRP, and the overall management of the fishery.
[19] The respondent submitted that the applicants’ arguments pertaining to the Canadian Charter of Rights and Freedoms, economic duress and unconscionability, and the jurisdiction of the HAB, were not raised in the notice of application. It was submitted that these arguments are not properly before the Court in light of paragraph 301(e) of the Federal Courts Rules, SOR/98-106 which requires a notice of application to include “a complete and concise statement of the grounds intended to be argued, including a reference to any statutory provision or rule to be relied on”. The respondent submitted that this Court should only deal with grounds of review invoked by the applicant in the originating notice of application and supporting affidavits (see Métis National Council of Women v. Canada (Attorney General), 2005 FC 230 at paragraph 45).
[20] The respondent submitted that a review of the applicants’ notice of application makes clear that the applicants were of the view that a single GLRP was interpreted and applied incorrectly in Newfoundland and Labrador. A review of the respondent’s affidavit, however, indicates that the GLRP had different conditions in the Newfoundland and Labrador region because there were regional differences in the application of the GLRP in accordance with the regional licensing policy. The respondent submitted that as this provided a full answer to the grounds raised in the notice of application, the applicants have abandoned their original argument and raised new grounds of review. It was submitted that the evidentiary record was compiled on the basis of the grounds of review identified in the originating notice of application, and as such, to go outside these parameters at this point would be highly prejudicial to the respondent. The respondent therefore asked this application to be dismissed as the applicants have submitted no arguments in support of their stated grounds of review.
[21] With respect to the Charter argument, the respondent submitted that the principles regarding the parameters of review are particularly acute. It was submitted that the applicants not only failed to plead a particular ground of discrimination in the notice of application, but they failed to raise the issue of discrimination in the notice of application or in their previous three requests for re-issuance of their shrimp licences. It was further submitted that the applicants have failed to produce any evidence in support of their Charter claim, especially as would be necessary to establish “being a Newfoundland fisherman” as an analogous ground under subsection 15(1) of the Charter (see Bekker v. Canada, 2004 FCA 186 at paragraphs 12 to 14). The respondent submitted that it is unable to respond to the applicants’ Charter claim or to address the matter further on the evidentiary record, and requested that the applicants’ Charter submissions be struck or otherwise disregarded.
[22] The respondent submitted that similarly, the applicants’ argument pertaining to economic duress and unconscionability should be struck or disregarded. The respondent submitted that the applicants’ reference in the notice of application to a lack of legal advice appeared to be directed at explaining why the applicants participated in a program they subsequently came to believe was misinterpreted in Newfoundland and Labrador.
[23] The respondent submitted that if this Court sees fit to entertain the applicants’ submissions on economic duress and unconscionability, this argument must nonetheless be dismissed for the following reasons. First, it was submitted that there is no evidence with respect to eight of the nine applicants that they did not receive financial or legal advice prior to participating in the GLRP, or otherwise acted under economic duress. Second, the applicants have not submitted any evidence that they would have acted differently had they received legal advice or been aware that the GLRP conditions were different in Newfoundland and Labrador, nor have they submitted any evidence that they did not understand the GLRP conditions requiring them to surrender all of their fishing licences and permanently exit the fishery. Third, participation in the GLRP was voluntary, and the applicants received substantial compensation to alleviate their financial hardship. Fourth, the bidder’s information supplement of February 1995 strongly urged licence holders to seek specialized advice from a financial advisor, tax accountant or lawyer before finalizing their licence retirement bid. Fifth, the information supplement of February 1995 advised licence holders to consider a number of factors when they prepared their bids, and the applicants themselves determined the level of compensation they should receive for the surrender of all of their commercial fishing licences and their promise to permanently leave the commercial fishery.
[24] The respondent submitted that as the argument of economic duress or unconscionability relates to the legality of the agreements, it would be more properly raised in the context of an action in contract to void the agreements. In such an action, the Court can also determine the effect of the waivers signed by the applicants releasing the Crown from any claims in relation to their participation in the GLRP.
[25] With respect to the applicants’ argument concerning the actions of the HAB, the respondent submitted that this argument was not raised in the notice of application or supporting affidavit, and thus this argument should be struck or disregarded. In the alternative, it was submitted that the applicants’ argument is without merit and should be dismissed. The respondent submitted that HABs were established as independent advisory boards for each region. The GLRP was a program offered by the DFO, taking into account the advice of the HABs which had consulted with local industry representatives. It was submitted that the GLRP was not a policy as asserted by the applicants, nor was the HAB a part of government. The HAB did not require the applicants to surrender their fishing licences, and they had no authority to require such action. It was the DFO that exercised the ultimate decision-making authority under the GLRP and made offers and paid monies to GLRP participants. The HAB simply recommended to the DFO which bids submitted by fishers should be accepted.
[26] Finally, the respondent submitted that the applicants’ requested relief in the nature of mandamus is unavailable. It was submitted that in order for mandamus to lie there must be, inter alia, a public legal duty to act and a clear right to performance of that duty (see Apotex Inc. v. Canada (Attorney General) (1993), [1994] 1 F.C. 742 at paragraph 45 (C.A.), aff’d [1994] 3 S.C.R. 1100). Further, mandamus is unavailable if the decision-maker’s discretion is characterized as being unqualified, absolute, permissive or unfettered (see Apotex, above, at paragraph 45). While mandamus may be appropriate to compel the performance of a public duty, it cannot dictate the result to be achieved (see Kahlon v. Canada (Minister of Employment and Immigration), [1986] 3 F.C. 386 at paragraph 3 (C.A.)). The respondent submitted that the Minister has absolute discretion with respect to the issuance of fishing licences and cannot be compelled to exercise that discretion in any particular way.
[27] Standard of Review
The decision of the Minister as to whether to issue a fishing licence is reviewable on a standard of patent unreasonableness (see Tucker v. Canada (Minister of Fisheries and Oceans) (2000), 197 F.T.R. 66 at paragraphs 13 to 16 (T.D.), aff’d 2001 FCA 384).
[28] I propose to address the following issues:
1. Was the decision refusing to issue shrimp licences patently unreasonable?
2. Did the interpretation and application of the GLRP in the Newfoundland and Labrador region amount to discrimination against the fishers in that region?
3. Are the agreements and releases signed under the GLRP in relation to the shrimp licence void on the grounds of economic duress and unconscionability?
4. Did the HAB err in its interpretation and application of the GLRP or act without legislative authority in requiring the applicants to surrender all of their commercial fishing licences?
[29] Issue 1
Was the decision refusing to issue shrimp licences patently unreasonable?
The GLRP was a licence retirement program designed to reduce harvesting capacity in the Atlantic groundfish industry. The applicants voluntarily participated in the GLRP and received substantial sums, ranging from $250,000 to $400,000, for their agreement to retire all of their fishing licences and permanently exit the commercial industry. Through a reverse-auction process, the applicants themselves determined the level of compensation they should receive. Each applicant signed an agreement which clearly specified the terms of his participation in the GLRP.
[30] Years later, the applicants asked the DFO to reissue their shrimp licences so that they could transfer the licences to other fishers. The applicants believed that they were entitled to these licences because fishers in other regions had been permitted to transfer their non-groundfish licences. The DFO refused to reissue the shrimp licences since the re-issuance of these licences would be inconsistent with the conditions agreed to by the applicants under the licence retirement agreements.
[31] Given that the applicants voluntarily retired all of their commercial fishing licences in exchange for substantial financial compensation (which amount was determined by the applicants), and have signed a clear agreement to this effect, I cannot see how the Minister’s decision not to reissue the shrimp licences is patently unreasonable.
[32] Issue 2
Did the interpretation and application of the GLRP in the Newfoundland and Labrador region amount to discrimination against the fishers in that region?
The respondent submitted that the issue of discrimination should be dismissed because the applicants did not raise the issue as a ground of review in their notice of application. For ease of reference, I will set out the material portion of the notice of application below:
6. Within the Province of Newfoundland and Labrador the retirement requirement was interpreted and applied to mean that the fisherman affected would have to surrender all his or her licenses including their groundfish license to receive payment for the groundfish license as determined using calculations as set out by the Department.
7. In the remaining Provinces the retirement requirement was interpreted and applied to allow the affected fishermen to transfer their remaining licenses prior to receiving payment for their groundfish license.
8. The individual applicants in the within application all participated in the License Buy Back Program and all surrendered their shrimp licenses to the Department without compensation. Neither of these applicants had the benefit of independent legal advice and were required to submit their bids based upon the documentation prepared by the Department.
9. The applicants have applied to the Department requesting that their shrimp licenses be reinstated for the purpose of transfer in accordance with the application of the License Buy Back Program in other jurisdictions. Pursuant to correspondence dated October 19, 2004 this request has been refused (the “refusal”).
10. The applicants submit that the refusal constitutes a misapplication of the License Buy Back Program and as such is a reviewable decision from the Department.
11. The applicants submit that the requirement from local officials of the Department that they surrender their remaining licenses was outside of their jurisdiction and not in accord with the License Buy Back Policy as it did not provide full compensation to fishermen for their fishing enterprises. The Department therefore erred in the application of its policy and acted outside of the authority delegated by the Minister in requesting that remaining licenses be surrendered without compensation.
12. The applicants therefore request a judicial review of the refusal asking for a mandatory injunction as against the Department requiring that shrimp licenses surrendered by the applicants be reinstated for the purpose of transfer.
[33] I agree that the applicants have not raised the issue of discrimination in their notice of application. Moreover, a review of the supporting affidavit of Mr. Hickey reveals that it, too, does not raise the issue of discrimination.
[34] Paragraph 301(e) of the Federal Courts Rules provides that a notice of application must provide “a complete and concise statement of the grounds intended to be argued, including a reference to any statutory provision or rule to be relied on”. The Federal Court has held that applicants are not permitted to invoke new grounds of review which are not in the originating notice of application or the supporting affidavits. For example, in Métis National Council of Women v. Canada (Attorney General), 2005 FC 230, Justice Kelen stated at paragraph 45:
The respondent objected to the introduction of NWAC as a comparator and to a discrimination claim based on race because this was not part of the original application and as a result, the respondent did not lead any evidence to rebut this allegation. Upon review of the application for judicial review, I must agree with the respondent's submissions. This application concerns discrimination against Métis women as compared with Métis men who are able to access benefits, be it programming or funding, under the employment programs. While race is certainly an element to be taken into account when considering the pre-existing disadvantage of the applicants as well as the other contextual factors relevant to a discrimination analysis, it is not open to the applicants to raise an entirely new claim based on race. It is well established that the Court will only deal with grounds of review invoked by the applicant in the originating notice of application and in the supporting affidavits. If the applicants were able to invoke new grounds of review at the hearing, the respondent would be prejudiced because it was not given an opportunity to address the new grounds in its affidavit or consider filing an affidavit to address a new issue. See Arona v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J No. 24 (T.D.) (QL) per Gibson J., at paragraph 9. See also Canada (Attorney General) v. Lesiuk, [2003] 2 F.C. 697, at paragraph 20 where the Court of Appeal refused to consider a new comparator group raised on appeal because a change in comparator could work prejudice and unfairness to the parties who, before the decision maker, proceeded under a different assumption and adduced evidence accordingly.
[35] Grounds of review that are based on the Charter generally require a contextual inquiry and a strong evidentiary foundation. It is therefore particularly important that the respondent receive notice of such grounds in the notice of application. As the applicants have not raised the issue of discrimination or section 15 of the Charter in their notice of application or supporting affidavits, I am not prepared to deal with this issue as a ground of review. I would also note that the issue of discrimination was not invoked in any of the applicants’ requests to the respondent for the re-issuance of the shrimp licences.
[36] In the alternative, even if I had considered this Charter argument, I am of the view that there is insufficient evidence to establish discrimination pursuant to section 15 of the Charter. Also, there is no evidence to establish that Newfoundland fishermen are defined by characteristics analogous to the enumerated grounds set out in subsection 15(1) of the Charter.
[37] Issue 3
Are the agreements and releases signed under the GLRP in relation to the shrimp licence void on the grounds of economic duress or unconscionability?
I would dismiss the arguments in respect of this issue because this issue is not a ground of review that was raised in the notice of application or supporting affidavit.
[38] In the alternative, even if I were to deal with these arguments on the merits, I would dismiss them. The applicants simply stated in their notice of application that they did not receive independent legal advice in signing their agreements. However, this statement is insufficient to raise the issue of economic duress or unconscionability, which is a very strong allegation to make. The applicants have not stated that they misunderstood the agreement or that their decision would have been any different had they received legal advice. I would note that the applicants were paid substantial sums for their retirement from the fishery. There is no evidence of unfairness. The agreement was clearly worded and voluntarily entered into by the applicants.
[39] Issue 4
Did the HAB err in its interpretation and application of the GLRP or act without legislative authority in requiring the applicants to surrender all of their commercial fishing licences?
The applicants did not explicitly refer to the HAB in their notice of application. Nevertheless, I propose to consider the merits of the arguments in respect of this issue, given that issues concerning the interpretation and application of the GLRP were identified in the notice of application (see, for example, paragraph 11 of the notice of application).
[40] The respondent submitted that the DFO exercised the ultimate decision-making authority under the GLRP. It was submitted that the HAB recommended to the DFO which bids tendered by fishers should be accepted, but it was the DFO which made the offers and paid the successful GLRP participants. I am satisfied that the evidence supports these submissions. The licence retirement agreements that were signed by the applicants indicate that the applicants accepted the offer from the DFO and that compensation would be issued by the DFO (see Exhibit 6 to the Ken Carew affidavit). The applicants have not adduced any evidence to establish that the HAB made the decisions. Therefore, I reject the applicants’ submissions that the HAB made the decisions and acted without legislative authority.
[41] Finally, I am not persuaded by the applicants’ argument that the respondent erred in the interpretation or application of the GLRP. Conditions for GLRP participants varied for each DFO administrative region in accordance with the regional licencing policy, which was influenced by environmental considerations and industry stakeholders’ recommendations. In the Newfoundland and Labrador region, which is where the groundfish harvesting was concentrated, GLRP participants were required to retire all of their commercial fishing licences. In other regions, participants could transfer their non-groundfish licences to other fishers. It was open to the respondent to set different GLRP conditions for each region.
[42] The application for judicial review is therefore dismissed.
[43] There shall be no order as to costs.
JUDGMENT
[44] IT IS ORDERED that:
1. The application for judicial review is dismissed.
2. There shall be no order as to costs.
ANNEX
Relevant Statutory Provisions
Subsection 7(1) of the Fisheries Act, R.S.C. 1985, c. F-14 gives the Minister of Fisheries and Oceans the authority to issue licences for fishing. It provides:
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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.
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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.
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The provisions of the Federal Courts Rules, SOR/98-106 which were cited by the respondent are set out below.
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81. (1) Affidavits shall be confined to facts within the personal knowledge of the deponent, except on motions in which statements as to the deponent's belief, with the grounds therefor, may be included.
(2) Where an affidavit is made on belief, an adverse inference may be drawn from the failure of a party to provide evidence of persons having personal knowledge of material facts.
. . .
301. An application shall be commenced by a notice of application in Form 301, setting out
. . .
(e) a complete and concise statement of the grounds intended to be argued, including a reference to any statutory provision or rule to be relied on; and
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81. (1) Les affidavits se limitent aux faits dont le déclarant a une connaissance personnelle, sauf s’ils sont présentés à l’appui d’une requête, auquel cas ils peuvent contenir des déclarations fondées sur ce que le déclarant croit être les faits, avec motifs à l’appui.
(2) Lorsqu’un affidavit contient des déclarations fondées sur ce que croit le déclarant, le fait de ne pas offrir le témoignage de personnes ayant une connaissance personnelle des faits substantiels peut donner lieu à des conclusions défavorables.
. . .
301. La demande est introduite par un avis de demande, établi selon la formule 301, qui contient les renseignements suivants:
. . .
e) un énoncé complet et concis des motifs invoqués, avec mention de toute disposition législative ou règle applicable;
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FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-2023-04
STYLE OF CAUSE: LESTER HICKEY et al
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Her Majesty the Queen
PLACE OF HEARING: St. John's, Newfoundland and Labrador
DATE OF HEARING: February 23, 2006
REASONS FOR JUDGMENT: O’KEEFE J.
APPEARANCES:
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Keith S. Morgan
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Scott McCrossin
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SOLICITORS OF RECORD:
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Brown Fitzgerald Morgan & Avis St. John’s, Newfoundland and Labrador
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John H. Sims, Q.C. Deputy Attorney General of Canada |