Date: 20020322
Docket: A-11-01
Neutral citation: 2002 FCA 103
CORAM: STRAYER J.A.
BETWEEN:
JADA FISHING CO. LTD AND EVCO FISHING LTD.
Appellants
and
THE MINISTER OF FISHERIES AND OCEANS AND
THE PACIFIC REGION LICENCE APPEAL BOARD -- GROUNDFISH PANEL
Respondents
Heard at Vancouver, British Columbia, on March 7, 2002.
Judgment delivered at Ottawa, Ontario, on March 22, 2002.
REASONS FOR JUDGMENT BY: MALONE J.A.
CONCURRED IN BY: STRAYER J.A.
SHARLOW J.A.
Date: 20020322
Docket: A-11-01
Neutral citation: 2002 FCA 103
CORAM: STRAYER J.A.
BETWEEN:
JADA FISHING CO. LTD AND EVCO FISHING LTD.
Appellants
and
THE MINISTER OF FISHERIES AND OCEANS AND
THE PACIFIC REGION LICENCE APPEAL BOARD -- GROUNDFISH PANEL
Respondents
REASONS FOR JUDGMENT
INTRODUCTION
[1] This is an appeal of an order of Pelletier J. (the "Reviewing Judge") dated December 14, 2000 and reported as Jada Fishing Co. v. Canada (Minister of Fisheries and Oceans) (2000) 198 F.T.R. 161 (T.D.). Pelletier J. dismissed an application for judicial review brought by Jada Fishing Co. Ltd. and Evco Fishing Ltd. ("the appellants") in respect of the decision of the Pacific Region Licence Appeal Board - Groundfish Panel (the "Panel") as adopted by the Minister of Fisheries and Oceans, with regard to the appellants' allocated individual vessel quotas ("IVQs") for a fishing licence.
[2] Quotas are attached to fishing licences. The appellants owned the fishing vessel M/V "Howe Bay" to which their original fishing licence was attached; a vessel that was lost at sea in 1990. Because their insurance company refused to pay for the loss, the appellants were unable to fish pursuant to their original licence. In early 1992, the appellants traded their original licence for licence T-063, which they attached to M/V "Glen Coe". The appellants were able to fish on licence T-063 for only three months in 1992, as they were unable to fix the M/V "Glen Coe" until their insurance claim relative to the M/V "Howe Bay" was resolved. Licence T-063 was originally attached to the M/V "Scotia Cape", which was also lost at sea in 1987.
[3] In 1997 the Department of Fisheries and Oceans ("DFO") introduced a quota system for determining the allowable catch for groundfish and hake under existing licences. The IVQ for a given licence was based on a combination of the length of the vessel to which the licence was attached, and the catch history of that licence for the period 1987 to 1992. In the appellants'case, the catch history would have been based on the three month catch history for license T-063. The Panel, established in 1979, was to hear appeals from fishers who disagreed with the IVQ allocated to their licence. The Panel could make recommendations on individual cases to the Minister where extenuating circumstances existed. Such recommendations were not binding on the Minister.
[4] In reaching its recommendations in this case, the Panel had found extenuating circumstances, and in seeking a basis to enlarge the appellants' average catch history beyond three months had regard to a DFO policy to the effect that an annual licence in respect of a lost vessel would not be continued unless the vessel was replaced within two years of the loss. The conclusion of the Panel was as follows:
... Jada Fishing Co. Ltd. took a risk on a licence that had a significant landings history prior to 1987, but unfortunately no landings during the qualifying years used for determination of the IVQ under this program. ... The Board concluded it would not recommend that catch history prior to 1988 be considered, but since the catch history follows the licence they felt compensation could be given for the loss of the M/V "Scotia Cape" (116'6") in 1987. They agreed that normally vessel owners are given two years under DFO policy to permanently replace a vessel, there should be compensation for the years 1988 and 1989. They agreed it would be fair to credit the licence with two years based on the average catch of vessels in that size range for the years 1988 and 1989 (2,342,847#). ... The Board further agreed that the M/V "Scotia Cape" would have likely participated in the 1987 and 1988 hake fisheries and agreed to recommend crediting the licence with an average catch of vessels in that size range for those years (4,886,437#). One Board member disagreed and felt a hake allocation was not warranted.
[5] The record does not disclose whether the Minister agreed with the Panel's reasons. His letter of April 3, 1998, merely states that "based on a thorough review of all available information, and the Panel's recommendation," the appeal would be granted so as to adjust the catch histories for licence T-063.
ISSUES
[6] Five issues were raised by the parties in this appeal, and may be summarized as follows:
a. Whether the relief sought by the appellants gives them a remedy;
b. Whether the recommendation made by the Panel is reviewable;
c. If reviewable, what is the appropriate standard of review;
d. Whether the Panel's recommendations meets that standard of review; and
e. Whether the Panel breached the requirements of procedural fairness.
ANALYSIS
[7] For convenience, I will respond to each argument in turn.
a. Whether the relief sought by the appellants gives them a remedy
[8] The appellants are asking this Court to order that the decision of the Reviewing Judge be overturned and substituted with an order that the two year restriction imposed by the Panel be severed. This would, in their view, result in the appellants receiving a quota based on a full five-year catch history instead of the two years recommended by the Panel. This remedy, according to the appellants, can be ordered by this Court relying on the decision of the Supreme Court of Canada, in Renaud v. Quebec (Commission des affaires sociales), [1999] 3 S.C.R. 855. Following that authority, and given the extenuating circumstances of this case, where the DFO disbanded the Panel immediately after its recommendations were made, the appellants assert that it would be proper for this Court to render the decision that should have been rendered by the Panel.
[9] In opposition, the Minister submits that there is no portion of the Panel's recommendations that limits the appellants' catch history. Rather, the Minister argues that the function of the Panel was to recommend an additional quota if an applicant could demonstrate extenuating circumstances. Consequently, even if the two year average quota was severed, the appellants would be no better off as they would be left with only the original three month catch history for the period 1987 to 1992 pursuant to licence T-063.
[10] In essence, the appellants are asking this Court to decide that the Panel should have recommended an economically viable quota for licence T-063 based on five years of catch history since it found the existence of extenuating circumstances. Such intervention, however, would merely amount to a substitution of the Court's recommendation for that of the Panel; a remedy which, in my view is beyond the scope of subparagraph 52 (b)(i) of the Federal Court Act ("the Act"). Under that subparagraph, this Court can only dismiss the appeal or give the judgment that the Trial Division should have given, and the Trial Division could not have substituted its decision for that of the Panel in an application for judicial review. I conclude that this Court is without jurisdiction to grant the remedy that the appellants seek.
b. Whether the recommendations made by the Panel are reviewable
[11] The Minister argues that the recommendations of the Panel are not judicially reviewable because it is not a federal board, commission or other tribunal under subsection 2(1) of the Act and it did not make a decision. The Minister also asserts that the recommendation of the Panel is not reviewable because the Panel only made recommendations, not decisions that affected the rights of the appellants, and its recommendations allegedly played an insignificant role.
[12] It is clear that the Minister is empowered under section 7 of the Fisheries Act, R.S.C. 1985, c. F-14, with absolute discretion to make decisions with regard to fishing licences. The Panel, on the other hand, was without statutory authority and merely made recommendations which the Minister was entitled to accept or reject. Accordingly, the Panel's recommendations are not in themselves prima facie reviewable. In this case, due to the breadth of the Notice of Application for Judicial Review before Pelletier J., I am well satisfied that this Court can review a discretionary decision of the Minister based, in part, upon the Panel's recommendation.
[13] The present appeal seeks to set aside the Reviewing Judge's order, and refers only to the "decision" of the Panel and its conduct, without reference to the Minister. However, the Minister's decision of April 3, 1998, still stands, and, in any event, the decision or recommendation of the Panel is inexorably connected to his decision, being without legal effect unless "adopted" by the Minister as one of the basis for his decision. In my analysis, this appeal can only continue as a review of the Minister's decision, albeit under the guise of an attack on the Panel's recommendation, based on paragraph 18.1(4) of the Act as a review of the exercise of Ministerial discretion.
c. What is the appropriate standard of review?
[14] As to the appropriate standard of review, the Panel's terms of reference state that the Panel must in individual cases provide a full rationale to the Minister where exceptions to the IVQ program are recommended. Those recommendations are to be made on the basis of extenuating circumstances and must follow certain guidelines. These restrictions would suggest that the Panel's recommendations to the Minister must have a rational basis connected to the extenuating circumstances and that the Panel's discretion is not as broad as that of the Minister under section 7 of the Fisheries Act. Applying the pragmatic and functional approach established in Baker, supra, I agree with the Reviewing Judge that the most important factor in this case is the significant impact of the decision on the appellants. In my analysis, the standard of review of the Panel's discretionary recommendations should be reasonableness, and, following Baker, supra, the recommendations would be unreasonable if not supported by reasons that could stand up to a somewhat probing examination. Given the ultimate disposition of this appeal, I need not deal with the oral submissions of counsel for the Minister that my review should be on the lower standard of patent unreasonableness, based on the recent Supreme Court of Canada decision in Suresh v. Canada, [2002] S.C.J. No. 3, 2002 SCC 1.
d. Whether the Panel's recommendations stand up to a "somewhat probing examination"
[15] Based on the record, it is evident that the main reason for the appellants' low IVQ was their decision to trade their original licence for licence T-063. What the appellants retained after this business decision and at the time the IVQ quota program was introduced was licence T-063. Therefore, it was reasonable for the Panel to base its recommendation on the licence that the appellants held at the time of the appeal. Furthermore, it is not unreasonable to expect the appellants to assume the risk of their business decision. Since the catch history follows the licence, it was also reasonable for the Panel to base its recommendations on the grace period DFO would have given the original owners of licence T-063 after the loss of M/V Scotia Cape, i.e. two years to permanently replace the vessel.
e. Whether the Panel breached the requirements of procedural fairness
[16] In this connection, I note that the appellants were provided an oral hearing before the Panel, made submissions orally and in writing, and availed themselves of the opportunity to be represented by counsel. Under these circumstances, it is difficult to discern any procedural unfairness which may have resulted to the appellants. The procedure involved an exercise of discretion by the Minister in a non-adversarial process. While it would be subject to a requirement of fairness, it would not attract the rigorous standard of natural justice required in an adversarial, judicial, or quasi-judicial process. Accordingly, the authorities relied upon by the appellants, including Kane v. Board of Governors of University of British Columbia, [1980] 1 S.C.R. 1105, are of no assistance.
[17] In this case, the appellants submit that the Panel breached the requirements of procedural fairness in allegedly hearing evidence from DFO officials in the absence of the appellants, and not permitting the appellants to respond. In this respect, I agree with the Reviewing Judge that there is nothing on the record which indicates that DFO officials did anything more than provide the Panel with factual information of which the appellants had prior knowledge, and which did not prejudice the appellants in any way.
[18] The appellants also allege that the Panel breached the duty of procedural fairness in failing to provide notice of its use of the two year policy, as well as failing to provide an opportunity to respond or comment on the policy. In my analysis, where the panel uses knowledge which is common in the industry to arrive at a conclusion, like the two year policy in this case, the test for intervention ought not to be whether the appellants were given a chance to comment but whether the information was relevant. In my analysis, there is a rational connection between the two year policy and the appellants' extenuating circumstances. As such, I am satisfied that the lack of notice and lack of opportunity to respond to the Panel's use of the two year policy is not a breach of procedural fairness.
[19] Lastly, the appellants argue that the Panel's written decision was not the decision of the entire Panel, but reflected merely the opinion of the Chair. However, in my analysis, there is no clear evidence on the record which would indicate that the Panel's recommendation, as written, do not reflect the decision reached by the Panel.
[20] Upon my review of the record, there are no apparent breaches of natural justice or procedural fairness, and consequently this ground of appeal must fail.
CONCLUSION and DISPOSITION
[21] I would dismiss the appeal with costs.
J.A.
FEDERAL COURT OF CANADA
APPEAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: A-11-01
STYLE OF CAUSE: JADA FISHING CO. LTD ET AL v. THE MINISTER OF FISHERIES AND OCEANS ET AL
PLACE OF HEARING: VANCOUVER, BRITISH COLUMBIA
DATE OF HEARING: MARCH 7, 2002
REASONS FOR JUDGMENT BY: MALONE, J.A.
CONCURRED IN BY: STRAYER, J.A.
SHARLOW, J.A.
DATED: MARCH 22, 2002
APPEARANCES:
MR. MURRAY L. SMITHFOR THE APPELLANTS
MR. HARRY WRUCK, Q.C.FOR THE RESPONDENTS
SOLICITORS OF RECORD:
CAMPNEY AND MURPHYFOR THE APPELLANTS
VANCOUVER, B.C.
DEPARTMENT OF JUSTICEFOR THE RESPONDENTS
VANCOUVER, B.C.