Ottawa, Ontario, September 8, 2006
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
Applicant
and
THE ATTORNEY GENERAL OF CANADA
REASONS FOR ORDER AND ORDER
[1] Mr. Ignatius Benoit, the Applicant, is a fisherman. In 1996, Mr. Benoit was denied CORE status, that being the highest assessment available to a fisherman and which status carries with it significant benefits. Since that time, Mr. Benoit has contested this determination through administrative means. He has now brought this application for judicial review of the various decisions, made by the following entities and persons:
- The CORE Assessment Unit of the Department of Fisheries and Oceans (DFO), dated August 2, 1996;
- The Industry/DFO Review Committee, dated October 3, 1996, as confirmed by an official with DFO in November 1996;
- The Minister of Fisheries and Oceans (the Minister), Robert Thibault, at various dates in 2002 and 2003; and
- The Minister, Geoff Regan, at various dates in 2004 and 2005, and finally dated August 12, 2005.
[2] In terms of judicial remedies, Mr. Benoit seeks to quash all of the related decisions and an order of mandamus to compel the CORE Assessment Unit to consider the merits of his application on certain terms.
[3] The parties agree that the Attorney General of Canada is the proper Respondent in this application. The style of cause will be amended to delete the Minister of Fisheries and Oceans and the CORE Assessment Unit, Department of Fisheries and Oceans as Respondents.
Issues
[4] The issues in this matter are as follows:
1. What is the decision under review?
2. What are the nature of the decision and the applicable standard of review?
3. Did the Minister commit errors that warrant intervention?
Relevant Statutory and Administrative Scheme
[5] Authority to issue commercial fishing licences is held by the Minister of Fisheries and Oceans, pursuant to s. 7(1) of the Fisheries Act, R.S.C. 1985, c. F-14, which states:
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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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[6] In 1996, the policy of the Minister was to assess fishermen to determine whether they qualified for CORE status. To assist in the exercise of discretion, the CORE Assessment Unit and the Industry/DFO Review Committee were created to provide non-binding recommendations to the Minister. Once a decision is made by the Minister, it is noteworthy that there is no statutory right to a review or appeal of the licensing decision. Thus, a Minister’s agreement to review or re-open a decision to refuse a licence is a discretionary decision founded in the same s. 7(1) as the original decision.
Analysis
What is the decision under review?
[7] The Applicant’s intention is to seek review of all of the successive decisions relating to his CORE status, from the negative recommendation by the CORE Assessment Unit in 1996 to the Minister’s refusal to reopen the file on August 12, 2005. In total, there are eight Ministerial decisions at issue. That is, between November 2001 and August 12, 2005, Mr. Benoit made at least eight requests for a reconsideration; the Minister refused Mr. Benoit’s request in seven (possibly eight) separate written decisions.
[8] There are a number of problems with this broad approach. First, decisions of the CORE Assessment Unit and the Review Committee are beyond the scope of this review. These bodies make recommendations to the Minister’s delegates; they do not make decisions. This judicial review may only relate to decisions of the Minister or his delegates to refuse to issue the CORE licence (Jada Fishing Co. v. Canada (Minister of Fisheries and Oceans) [2002] F.C.J. No. 436 (QL), 2002 FCA 103 at para. 13).
[9] Secondly, s. 18.1(2) of the Federal Courts Act, R.S.C. 1985, c. F-7 provides that applications for judicial review must be brought within 30 days of the decision complained of. Except for Minister Regan’s final decision, expressed in his letter of August 12, 2005, all earlier decisions exceed this 30 day time-limit. Mr. Benoit could have brought applications of the earlier decisions. Having failed to exercise his rights to seek judicial review of those earlier decisions, s. 18.1 (2) of the Federal Courts Act – as well as the interests of justice in finality of decisions – precludes Mr. Benoit from review of earlier decisions.
[10] Finally, an application for judicial review is available against a single decision. An application must be filed for each decision for which review is sought (Rule 302, Federal Courts Rules, 1998, SOR/98-106; Human Rights Institute of Canada v. Canada (Minister of Public Works & Government Services), [2000] 1 F.C. 475 (T.D.)).
[11] For these reasons, the only decision that will be considered is the decision of the Minister dated August 12, 2005. I begin by reviewing that decision.
Minister’s Decision of August 12, 2005
[12] The decision under review was made in response to a request dated June 30, 2005, from counsel for Mr. Benoit. In the request for a ministerial review, counsel for Mr. Benoit identified a number of grounds upon which the request was based:
- Inconsistency in procedures by the DFO/Industry Review Committee during its 1996 hearing;
- Abuse of process by the Review Committee in 1996, in its refusal to review certain material or hear Mr. Benoit on certain information;
- New information, “not previously provided to the Minister’s office … to prove that the Applicant operated as an Enterprise Head during his pre-injury years”; and
- Exceptional circumstances including Mr. Benoit’s lack of education, which attempt to explain his failure to provide the relevant information and to understand his rights of appeal.
[13] The Minister’s response, in his letter of August 12, 2005, is as follows:
Thank you for your letter of June 30, 2005, regarding Mr. Ignatius Benoit’s designation under CORE Licensing Policy.
As mentioned in my previous letters and in letters from my predecessors, Mr. Benoit’s case has been thoroughly reviewed on a number of occasions and the decision made in his case will stand.
Since 1996, licence-holders have been provided with sufficient opportunity to have their cases reviewed. However, I am no longer prepared to have officials review cases that have been provided with a clear decision after thorough review. Regretfully, I cannot be of further assistance to Mr. Benoit.
What are the nature of the decision and the applicable standard of review?
[14] The decision to deny CORE status to Mr. Benoit made in November 1996 was, subject to possible judicial review, intended to be final and binding. There is no statutory provision for review of the Minister’s decisions and certainly no legislated duty on the Minister to entertain endless requests for reconsideration of the same decision. It appears from a review of the correspondence that the Minister, in some earlier decisions, had advised Mr. Benoit that he would reconsider the decision under certain circumstances, such as new information brought forward by Mr. Benoit (see, for example, the Minister’s letters dated June 3, 2002 and November 7, 2003). In each case, Mr. Benoit responded to the invitation with a request for reconsideration and, in each case, the request was denied. This invitation to submit further information was not contained in the Minister’s decisions of April 29, 2004 or July 6, 2005.
[15] Given that: (a) there is no statutory duty on the Minister to conduct a review; (b) the Minister had not, in correspondence in 2004 and 2005, invited Mr. Benoit to submit any further request; and (c) Mr. Benoit had already had numerous reviews, I am not entirely certain that there was any obligation whatsoever on the Minister at this stage to provided a response to Mr. Benoit’s eighth request for reconsideration. However, if there was, it would be one that carried with it requirements for minimal procedural fairness (Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2 S.C.R. 817). I would assume that the obligation, if any, on the Minister would be to review the June 30, 2005 submissions in good faith and without being arbitrary or taking irrelevant considerations into account.
[16] The discretionary nature of licence conferral by the Minister is firmly established. Justice Major described this nature at paras. 36-37 of Comeau’s Sea Foods Ltd. v. Canada (Minister of Fisheries and Oceans), [1997] 1 S.C.R. 12:
It is my opinion that the Minister's discretion under s. 7 to authorize the issuance of licences, like the Minister's discretion to issue licences, is restricted only by the requirement of natural justice, no regulations currently being applicable. The Minister is bound to base his or her decision on relevant considerations, avoid arbitrariness and act in good faith [emphasis added]. The result is an administrative scheme based primarily on the discretion of the Minister: see Thomson v. Minister of Fisheries and Oceans, F.C.T.D., No. T-113-84, February 29, 1984.
This interpretation of the breadth of the Minister's discretion is consonant with the overall policy of the Fisheries Act. Canada's fisheries are a "common property resource", belonging to all the people of Canada. Under the Fisheries Act, it is the Minister's duty to manage, conserve and develop the fishery on behalf of Canadians in the public interest (s. 43). Licensing is a tool in the arsenal of powers available to the Minister under the Fisheries Act to manage fisheries. It restricts the entry into the commercial fishery, it limits the numbers of fishermen, vessels, gear and other aspects of commercial fishery.
[17] This Court has consistently adopted a standard of patent unreasonableness for decisions of the Minister or his officials to deny, suspend, or revoke licences, in accordance with the pragmatic and functional approach (see, for example, Tucker v. Canada (Minister of Fisheries and Oceans), [2000] F.C.J. No. 1868 (F.C.T.D.), aff’d [2001] F.C.J. No. 1862 (F.C.A.) at paras. 13-16; approved in Fennelly v. Canada (Attorney General), [2005] F.C.J. No. 1573, 2005 FC 1291 at para. 21; and Goodwin v. Canada (Minister of Fisheries and Oceans), [2005] F.C.J. No. 1438, 2005 FC 1185 at para. 25).
[18] If a decision to deny, suspend or revoke a licence is subject to the highest standard of judicial review, it follows that a decision as to whether a decision should be reviewed is subject to no lower standard. Both decisions are discretionary and, in my view, fall within the “administrative scheme” referred to by the Supreme Court in Comeau’s, above.
[19] On this highest standard, “[t]he Minister is bound to base his or her decision on relevant considerations, avoid arbitrariness and act in good faith” (Comeau’s, above at para. 36; followed by Justice Elizabeth Heneghan in Keating v. Canada (Minister of Fisheries and Oceans), [2002] F.C.J. No. 1602, 2002 FCT 1174 at paras. 64-65).
Did the Minister Err?
[20] Mr. Benoit acknowledges that he is attempting to overturn the recommendation of the Review Committee and the resulting decision of the Minister to deny CORE status to him. A review of all the subsequent submissions to the Minister, including those at issue in this application, demonstrates this fact. Mr. Benoit has repeatedly disputed the process leading to his status and attempted to address the process and conclusions of the Committee. In this hearing, Mr. Benoit points to a series of alleged procedural and factual errors made by the Committee, including:
- Breach of the Doctrine of Legitimate Expectations;
- Reasonable Apprehension of Bias on the part of the Committee members;
- Failure to allow Mr. Benoit to put forward documents addressing some of the issues;
- Failure to inform Mr. Benoit of the information in his file.
[21] The alleged errors are almost impossible to assess at this time. These arguments highlight the public policy reasons for limiting the time within which an application for judicial review may be brought. It is simply not fair to the Respondent to bring up the concerns that should have and could have been made following the 1996 decision of the Minister.
[22] According to Mr. Benoit, he has only known since 2003 that the Review Committee’s decision was based on a misunderstanding of his pre-1983 fishing activities. He also argues that many of the alleged errors on the part of the Committee have only been exposed through this judicial review. For example, he points out that the information before the Committee on Mr. Benoit’s fishing experiences, as contained in the DFO files, was not complete. However, had Mr. Benoit commenced a judicial review of the initial decision in 1996 or the earlier Minister’s refusals to reconsider, the alleged errors would have become apparent. A review of the Minister’s decision that relied on that recommendation would likely have brought to light all of the evidence before both the Committee and the Minister. Further, a timely judicial review that raised concerns of procedural fairness, legitimate expectations and reasonable apprehension of bias could have proceeded with a full and contemporaneous record.
[23] Mr. Benoit submits that he was not aware that he could appeal the Minister’s decision. This is not an acceptable excuse. Given the importance of the CORE status to his livelihood, one would have expected Mr. Benoit to seek assistance in pursuing his claim.
[24] I have similar concerns with respect to the many Ministerial decisions that occurred between July 29, 2002 and July 6, 2005. In each case, the request for review was made by counsel on Mr. Benoit’s behalf. As evidenced by the language of the various requests, Mr. Benoit (or, at least, his counsel) had full knowledge that recourse to this Court was available. In spite of this, no earlier application to this Court was made.
[25] In the absence of successful judicial review of the 1996 decision or of the many subsequent decisions, it was open to the Minister, when considering his final response, to assume that there had been no errors in those earlier decisions. Thus, it was not unreasonable for the Minister to reject the submissions in the June 30, 2005 request that related to the following:
- Inconsistency in procedures by the DFO/Industry Review Committee during its 1996 hearing;
- Abuse of process by the Review Committee in 1996, in its refusal to review certain material or hear Mr. Benoit on certain information; and
- Exceptional circumstances including Mr. Benoit’s lack of education, which attempt to explain his failure to provide the relevant information and to understand his rights of appeal.
[26] This leaves the new evidence submitted with the June 30, 2005 request for reconsideration. Assuming, without deciding, that there was a duty on the Minister to consider the further evidence submitted, the Minister’s task was to consider whether new evidence, that was not or could not have been available to the earlier decision makers, had been presented and whether such evidence would lead to a different result than was reached in 1996.
[27] In the latest submissions to the Minister, Mr. Benoit provided copies of affidavits of other fishermen supporting his arguments related to his pre-1983 fishing status. Mr. Benoit argues that the Minister ignored this relevant information. I do not agree.
[28] I first note that there is no evidence that the Minister failed to consider this evidence; absent some evidence to the contrary, the Minister is presumed to have considered the submissions made to him in the June 30, 2005 request for review. Further, I can reasonably conclude that the Minister’s failure to refer specifically to the affidavits was due to the fact that he concluded that: (a) they did not provide any persuasive support to Mr. Benoit’ claim; and (b) they did not constitute “new evidence”.
[29] In my view, the affidavits provide little support to Mr. Benoit. The first problem is that the affidavits are hearsay only in that the affiants are providing evidence of their knowledge of Mr. Benoit’s fishing practices pre-1983. Secondly, the affiants are merely expressing an opinion that Mr. Benoit had been an “Enterprise Head” prior to 1983; this is precisely the decision that was to be made by the officials at DFO, the Review Committee and the Minister after review of all the evidence. Finally, there is no reason why this evidence could not have been presented to the Review Committee at the time of its hearing into this matter. The Minister’s rejection of the affidavits was not unreasonable.
[30] A further argument made by Mr. Benoit is that the Minister relied on information prepared for him by an official of DFO, which information was not made available to Mr. Benoit. In Mr. Benoit’s view, the information provided to the Minister contained numerous errors which have only come to light in the context of this judicial review. Mr. Benoit submits that the failure to provide Mr. Benoit with this information precluded Mr. Benoit from responding to the errors. This, he argues, constitutes a breach of natural justice; he should have been allowed to know the case against him.
[31] The information that allegedly contains errors is part of Mr. Benoit’s ongoing file with DFO. Mr. Benoit is not asserting (nor is there any evidence) that officials at DFO prepared some “secret” report or provided other information to the Minister that went beyond that in his file. Mr. Benoit could, at any time, have requested to review his file. He cannot now rely on his failure to do so as a reason for finding that the rules of natural justice had been breached.
Conclusion
[32] In conclusion, I can find no error in the Minister’s decision of August 12, 2005, in which he refused to review Mr. Benoit’s designation under the CORE Licensing Policy. The Minister based his decision on relevant considerations, was not arbitrary and acted in good faith. This application for judicial review will be dismissed.
[33] As requested in the written submissions and discussed at the oral hearing, the Minister will be awarded costs at the usual scale.
ORDER
THIS COURT ORDERS that:
1. The style of cause is amended to delete the Minister of Fisheries and Oceans and the CORE Assessment Unit, Department of Fisheries and Oceans as Respondents; and
- The Application for judicial review is dismissed, with costs to the Respondent.
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Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1536-05
STYLE OF CAUSE: IGNATIUS BENOIT v.
THE ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: St. John’s, Newfoundland and Labrador
DATE OF HEARING: August 15, 2006
APPEARANCES:
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Fred R. Stagg, Q.C.
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Korinda McLaine
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SOLICITORS OF RECORD:
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Fred R. Stagg Law Office Stephenville, Newfoundland and Labrador
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John H. Sims, Q.C. Deputy Attorney General of Canada |