Elson v. Canada (Attorney General)

Elson v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2017-05-05
Neutral citation
2017 FC 459
File numbers
T-138-16
Decision Content
Date: 20170505
Docket: T-138-16
Citation: 2017 FC 459
Ottawa, Ontario, May 05, 2017
PRESENT: The Honourable Madam Justice Strickland
BETWEEN:
KIRBY ELSON
Applicant
and
CANADA (ATTORNEY GENERAL)
Respondent
JUDGMENT AND REASONS
TABLE OF CONTENTS
Background. 2
Decision Under Review.. 9
Issues. 10
Standard of Review.. 11
Issue 1: Which decision(s) is (are) subject to judicial review?. 12
Issue 2: Was the Minister’s decision based on relevant considerations?. 14
Applicant’s Position. 14
Respondent’s Position. 16
Analysis. 19
Issue 3: Did the Minister reasonably exercise, or did he fetter, his discretion?. 41
Applicant’s Position. 41
Respondent’s Position. 45
Analysis. 48
(1) Mandatory Requirements. 51
(2) Exemptions and Consideration of Individual Circumstances. 55
(3) Decision letter / s 7 of the Fisheries Act 70
Issue 4: Did the Minister have an open mind?. 74
Applicant’s Position. 74
Respondent’s Position. 75
Analysis. 76
Issue 5: What is the appropriate remedy?. 82
Costs. 85
[1] This is an application for judicial review of a decision by the Minister of Fisheries and Oceans, accepting the recommendation of the Atlantic Fisheries Licence Appeal Board (“Appeal Board”), and denying the Applicant’s appeal in which he sought to be granted an exemption from the Preserving the Independence of the Inshore Fleet in Canada’s Atlantic Fisheries policy (“PIIFCAF Policy” or “Policy”). As a result, the Applicant was no longer eligible to have the fishing licences held by him reissued. This application is brought pursuant to section 18.1 of the Federal Courts Act, RSC 1985, c F-7.
Background [2] The Department of Fisheries and Oceans Act, RSC 1985, c F-15 established the Department of Fisheries and Oceans (“DFO”) and sets out the powers, duties and functions of the Minister of that department. These extend to and include all matters over which Parliament has jurisdiction, not by law assigned to any other federal department, board or agency, relating to the sea coast and inland fisheries, fishing and recreational harbours, hydrography and marine sciences, and the coordination of policies and programs of the federal government respecting oceans (s 4(1)). Pursuant to s 7 of the Fisheries Act, RSC 1985, c F-14 (“Fisheries Act”) the Minister may, in his absolute discretion, issue or authorize to be issued leases and licences for fisheries or fishing, wherever situated or carried on.
[3] Over the years, the DFO has established various policies pertaining to management of the fishery. One of these is the Commercial Fisheries Licencing Policy for Eastern Canada, 1996 (“1996 Policy”) which has been revised over time but remains in effect. The 1996 Policy describes a fishing licence as an instrument by which the Minister, pursuant to his or her discretionary authority under the Fisheries Act, grants permission to a person to harvest certain species of fish, subject to the conditions attached to the licence. This is not a permanent permission and terminates upon expiry of the licence. The licence holder is essentially given a limited privilege, rather than any kind of absolute or permanent right or property. Generally speaking, all fishing licences must be renewed, or “replaced”, annually.
[4] Incorporated within the 1996 Policy are the Owner-Operator Policy and the Fleet Separation Policy. The Fleet Separation Policy was introduced in 1979 to separate the fish harvesting and fish processing sectors of the industry. Under that policy, new fishing licences for fisheries pursued by vessels of less than 65’ in length would not be issued to corporations, including those involved in the processing sector of the industry. Under the Owner-Operator Policy, which was introduced in the 1970s, licences would be issued in the name of an individual fisher, licence holders were required to fish their licences personally, and were limited to holding one licence per species.
[5] During consultations arising from the 1999 Atlantic Fisheries Policy Review (“AFPR”), concerns were expressed by members of the inshore fleet that the Fleet Separation and Owner-Operator Policies were being undermined by “trust agreements”. In November 2003, the Minister announced his intent to release a discussion document which would form the basis of public consultations concerning trust agreements and the Owner-Operator and Fleet Separation Policies. A news release indicated that the DFO would examine all options, including the possibility of regulations, to deal with the trust agreements which were counter to DFO policy. A discussion paper entitled Preserving the Independence of the Inshore Fleet in Canada’s Atlantic Fisheries followed. It noted that a fishing licence reflects a privilege to fish, which is granted annually at the absolute discretion of the Minister pursuant to the Fisheries Act. This is a limited permission to fish constrained by the conditions of the licence. When the licence expires, the privilege to fish terminates. The paper noted that some licences issued to individuals had become the subject of trust agreements which are entered into between the licence holder and a fish processor or other third party. The trust agreements are private contracts, which are binding on the parties to them and often direct the use of the licence by the processor or other third party. Where a licence is the subject of such a trust agreement, the beneficial interest in it is transferred to another party and the legal title remains vested in the licence holder as a bare trustee. Consultation on the discussion paper followed, as did the issuance of A Policy Framework for the Management of Fisheries on Canada’s Atlantic Coast.
[6] Ultimately, in April 2007, the PIIFCAF Policy was introduced by the Minister who stated that its goal was to strengthen the existing Owner-Operator and Fleet Separation Policies to ensure that inshore fish harvesters remained independent and that the benefits of fishing licences flowed to the fishers and to Atlantic coastal communities. In the policy statement section, the Policy states that it strengthens the Owner-Operator and Fleet Separation Policies by addressing issues concerning “Controlling Agreements” (trust agreements), a term which it defines. The stated objectives of the PIIFCAF Policy are to reaffirm the importance of maintaining an independent and economically viable inshore fleet; strengthen the application of the Owner-Operator and Fleet Separation Policies; ensure that the benefits of fishing licences flow to the fish harvester and the coastal community; and, assist fish harvesters to retain control of their fishing enterprises. The Policy created the “Independent Core” category as the new eligibility criteria for the receipt of new or replacement vessel-based fishing licences in the Atlantic Canada inshore sector after April 12, 2007. The Independent Core category is available to inshore fish harvesters who are not parties to controlling agreements.
[7] The PIIFCAF Policy states that heads of Core Enterprises, who are not a party to a controlling agreement with respect to any inshore vessel based fishing licences issued in their name, will be eligible to obtain the Independent Core category by filing a declaration stating that they are not a party to a controlling agreement. Declarations were required to be filed by March 31, 2008 and thereafter each time a fish harvester requested a new or replacement inshore vessel-based licence. Licence holders who were a party to a controlling agreement had seven years, until April 12, 2014, within which to comply with the PIIFCAF Policy. Those who did not do so would not be eligible to be categorized as Independent Core and, therefore, would not be eligible to be issued new or replacement licences.
[8] In 2007, the DFO sent an information package to all inshore licence holders to whom the PIIFCAF Policy applied. In February 2008, a second package was sent, to address questions that had been raised, and extending the deadline for the filing of declarations to March 31, 2008.
[9] The Applicant was a party to a controlling agreement with Labrador Sea Products Inc. and Quinlan Brothers Limited. Accordingly, on March 25, 2008, he filed the required declaration with the DFO.
[10] On December 3, 2009, the DFO sent the Applicant a letter advising him that, because he was a party to a controlling agreement, he did not qualify as an Independent Core fish harvester, which categorization was subject to review at any time should the DFO become aware of additional information having an impact on his eligibility. He was advised that he could continue to fish the licences that he held until April 12, 2014, that he could request replacement licences but would not be eligible to receive new or replacement licences until the controlling agreement was terminated, or brought into compliance with PIIFCAF Policy, and that he had the right to appeal the categorization decision. On October 18, 2013, the Applicant received a further letter from the DFO to the same effect.
[11] On March 18, 2014, the DFO sent registered letters to those licence holders who were still in controlling agreements, again reminding them of the PIIFCAF Policy deadline of April 12, 2014, urging them to terminate or amend their controlling agreements to bring them in line with the PIIFCAF Policy, and to file a new declaration to that effect so that they would be eligible for licence renewal. The letter also advised that fishers would have an opportunity to appeal a decision to deny the renewal of their licences if they remained in a controlling agreement after April 12, 2014. To participate in the appeal, all relevant information, including their controlling agreement was to be submitted to the DFO within 30 days from the time their request to have their licences renewed was denied. The letter stated that the Minister had instructed the Appeal Board to examine controlling agreements submitted for review to determine if there was, in fact, a violation of the Owner-Operator and Fleet Separation Policies that the PIIFCAF Policy was designed to protect. The delivery of the letter was signed for by the Applicant’s spouse. A press release to similar effect was issued by the Minister on March 20, 2014.
[12] In early April 2014, the DFO contacted the Applicant and advised him that if he applied for a renewal of his licences prior to April 12, 2014 they would be issued to him for the 2014 season. The Applicant did so and was duly issued the licences. In the fall of 2014, he was again contacted directly by the DFO and advised that his licences would not be renewed in 2015 if he was still subject to the controlling agreement.
[13] On December 31, 2014, the Applicant wrote to the Minister asking for an exemption to the PIIFCAF Policy for his enterprise and that he be given the opportunity to make out a case for such an exemption.
[14] By letter of March 12, 2015, the then Minister of Fisheries and Oceans, Minister Shea, responded stating that, under PIIFCAF, any licences deemed to be in a controlling agreement as of April 12, 2014 would not be eligible for renewal and that the DFO would not be considering any exceptions to the PIIFCAF Policy. The Minister advised that if the Applicant wished to appeal a non-renewal decision by the DFO he may do so through the Appeal Board and, that upon receipt of an appeal request, a fishing licence may be reissued for an interim period during the appeal process. The Minister requested that he confirm in writing within 30 days if he wished to appeal. The Minister also noted that if the Applicant were to terminate his controlling agreement during the appeal process, his situation would be reassessed at that time.
[15] The Applicant appealed the non-renewal decision to the Appeal Board by a letter to the Minister dated April 10, 2015 and his licences were renewed for 2015.
[16] On June 12, 2015, the DFO faxed a 14-page appeal package, including an appeal case summary, to the Applicant by way of his spouse. On August 28, 2015, an updated package was provided to the Applicant’s counsel. On October 21, 2015, the Applicant’s counsel provided written submissions and a copy of the Applicant’s controlling agreement to the Appeal Board. The hearing was held on the same date at which time the Applicant’s counsel made oral submissions.
[17] In its report to the Minister, the Appeal Board outlined the PIIFCAF Policy, the Owner-Operator Policy, the Fleet Separation Policy, and the background facts. It noted the submissions of the Applicant’s counsel which included that: the Applicant was seeking an exemption to the PIIFCAF Policy; exiting his controlling agreement may have a significant cost; he may lose his enterprise; the PIIFCAF Policy is an irrational and ineffective policy that will cause financial hardship and that it has been grappled with but rejected in other jurisdictions; it does not appreciate a fisher who holds a quota but does not have financial assistance; if a fisher is located in Labrador, without an agreement he cannot sell his catch; and, the Policy ties the hands of fishers, limits flexibility and financing and, therefore, makes it more expensive for fishers to operate their enterprise. The Appeal Board stated that it had advised counsel that a discussion of other jurisdictions was beyond its mandate. It asked counsel to put a dollar value on the claimed financial hardship for this to be considered as extenuating circumstances as all fishers are in the same situation, but noted that counsel was unable to do so. The Appeal Board found that the Applicant had been treated fairly in accordance with the DFO Controlling Agreement Policy [sic] and had not demonstrated a valid extenuating circumstance to justify upholding the appeal. It recommended that the appeal be denied. On December 18, 2015, in a Memorandum for the Minister, the Associate Deputy Minister recommended that the Appeal Board recommendation be accepted.
[18] By letter to the Applicant dated December 23, 2015, Minister Tootoo denied the appeal.
Decision Under Review [19] The relevant portion of Minister Tootoo’s decision letter of December 23, 2015 (“decision”) states:
This letter is in response to your appeal concerning the licences held in your name that remain subject to a controlling agreement, despite the eligibility requirement provided for by the policy on Preserving the Independence of the Inshore Fleet in Canada’s Atlantic Fisheries (PIIFCAF).
The hearing of the Atlantic Fisheries Licence Appeal Board occurred on October 21, 2015. The report of the Atlantic Fisheries Licence Appeal Board, which contains its recommendation, has been submitted to me for my consideration.
Having considered all relevant information, I have decided to deny the appeal. Therefore, you will not be provided with an exemption to the PIIFCAF policy.
Accordingly, you will no longer be eligible to have the licences reissued to you for the 2016 fishing season and beyond.
Issues [20] The Applicant identifies the issues as:
(1) Whether the Minister unlawfully fettered his discretion by applying the PIIFCAF Policy to the Applicant without considering his individual circumstances;
(2) Whether the Minister prejudged the Applicant’s case; and
(3) Whether the PIIFCAF is ultra vires the jurisdiction of Parliament pursuant to s 91(12) of the Constitution Act, 1867, such that the Minister cannot rely upon it for the decision.
[21] The Respondent identifies the issues as:
(1) What is the standard of review?
(2) Was the Minister’s decision based on relevant considerations?
(3) Did the Minister reasonably exercise his discretion?
(4) Did the Minister have an open mind?
[22] In my view the issues can be framed as follows:
(1) Which decision(s) is (are) subject to judicial review?
(2) Was the Minister’s decision based on relevant considerations?
(3) Did the Minister reasonably exercise, or did he fetter, his discretion?
(4) Did the Minister have an open mind?
(5) What is the appropriate remedy?
Standard of Review [23] The Applicant did not make written submissions regarding the standard of review but at the hearing before me submitted that the reasonableness standard applied to the issue of the fettering of discretion. The Respondent submits the standard of review is reasonableness and that the Minister’s decisions on issuing commercial fishing licences are highly discretionary and are entitled to deference (Stemijon Investments Ltd v Canada (Attorney General), 2011 FCA 299 at paras 20-25 (“Stemijon”); Malcolm v Canada (Minister of Fisheries and Oceans), 2014 FCA 130 at paras 32-35 (“Malcolm”); Boogaard v Canada (Attorney General), 2014 FC 1113 at paras 66-68 (“Boogaard FC”), reversed by the FCA on other grounds, 2015 FCA 150 (“Boogaard FCA”)).
[24] I agree that the Minister’s decision concerning the issuance of commercial fishing licences is discretionary and subject to a standard of review of reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9 at para 53 (“Dunsmuir”); Boogaard FC at paras 66-68; Ralph v Canada (Attorney General), 2009 FC 1274 at paras 21-22; Assoc des crevettiers acadiens du Golfe inc c Canada (Procureur general), 2011 FC 305 at paras 56-57.
[25] While there has been some uncertainty regarding the appropriate standard of review where the fettering of discretion is at issue, the Federal Court of Appeal has held that, post-Dunsmuir, the fettering of discretion should be reviewed on the reasonableness standard. Further, that the fettering of discretion is always outside the range of possible, acceptable outcomes, and is therefore per se unreasonable (Stemijon at paras 20-25; Gordon v Canada (Attorney General), 2016 FC 643 at para 27 (“Gordon”)).
[26] In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process, but also with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law (Dunsmuir at para 47).
[27] Issues of procedural fairness are reviewed on the correctness standard (Mission Institute v Khela, 2014 SCC 24 at para 79; Canada v Khosa (Citizenship and Immigration), 2009 SCC 12 at para 43).
Issue 1: Which decision(s) is (are) subject to judicial review? [28] The Applicant submits that he seeks judicial review of a decision by the Minister which he submits is comprised of two letters, dated March 12, 2015 and December 23, 2015, written by Minister Shea and Minister Tootoo, respectively, refusing to renew the Applicant’s fishing licences. The Applicant did not provide written submissions as to why the Court should consider both letters as one decision, but at the hearing of this matter submitted that whether the letters were treated as one decision or the letter of Minister Tootoo was considered to be the decision under review, made no difference for the purpose of the hearing and that both decisions were made without the Minister exercising his or her discretion.
[29] The Respondent submits that the decision subject to judicial review in this matter is the decision by Minister Tootoo dated December 23, 2015 (Rule 302 of the Federal Courts Rules, SOR/98-106; Pieters v Canada (Attorney General), 2004 FC 342 at para 4 (“Pieters”)).
[30] Rule 302 of the Federal Courts Rules provides that, unless the Court orders otherwise, an application for judicial review shall be limited to a single order in respect of which relief is sought. Put otherwise, only one decision can be challenged on judicial review unless the Court orders otherwise which may be the case where the decisions at issue are closely linked and may be considered as a continuing course of conduct (Council of the Innu of Ekuanitshit v Canada (Fisheries and Oceans), 2015 FC 1298). In this matter, by letter of March 12, 2015, Minister Shea advised that licences deemed to be in a controlling agreement as of April 12, 2014 are not eligible for renewal and that the DFO would not be considering any exemptions to the PIIFCAF Policy, but advised that the Applicant could appeal a non-renewal decision through the Appeal Board. The Applicant did appeal, taking the position that the Minister acted unfairly by applying the PIIFCAF Policy without considering whether his personal circumstances justified the exemption he had sought. The Appeal Board made a recommendation to Minister Tootoo who, by letter dated December 23, 2015, denied the appeal and, accordingly, declined to provide an exemption to the PIIFCAF Policy and stated that the Applicant was no longer eligible to have his licences reissued to him.
[31] This Court has previously held that where a decision under review results from an appeal, the Court should only review the appellate judgment, the original decision is not before the Court (Pieters at para 4 citing Unrau v Canada (Attorney General), [2000] FCJ No 1434 (Fed TD); also see Lessard-Gauvin v Canada (Attorney General), 2016 FC 227 at para 10; Gun v Piikani First Nation, 2014 FC 908 at para 32). Accordingly, in my view, only the December 23, 2015 is subject to judicial review in this matter.
Issue 2: Was the Minister’s decision based on relevant considerations? Applicant’s Position [32] The Applicant submits that the Minister’s decision relied upon the PIIFCAF Policy which trenches upon on provincial jurisdiction under section 92(13) and (16) of the Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, App II, No 5 (“Constitution Act, 1867”). More specifically, the Applicant asserts that the Minister could not base his decision on a policy that would be ultra vires Parliament if it was enacted as legislation. The Policy was, therefore, an irrelevant, unconstitutional consideration (Canadian Union of Public Employees (CUPE) v Ontario (Minister of Labour), [2003] 1 SCR 539 at para 172 (“Canadian Union of Public Employees (CUPE)”)).
[33] The Applicant submits that the PIIFCAF Policy is, in pith and substance, a regulation of contracts. It is social and economic legislation unrelated to protecting the fishery. Accordingly, it is not a valid exercise of the federal fisheries power pursuant to section 91(12) of the Constitution Act, 1867 (Slaight Communications v Davidson, [1989] 1 SCR 1038 at para 90, per Lamer J, dissenting but not on this point (see para 9) (“Slaight Communications”); Doré v Barreau du Quebec, 2012 SCC 12 (“Doré”)). Further, that the Fisheries Act must be interpreted in a manner consistent with the Constitution Act, 1867 (R v McKay, [1965] SCR 798 at 803-804 (“McKay”); Castillo v Castillo, 2005 SCC 83 at para 30 (“Castillo”)) such that the Minister’s power to issue licences under s 7 does not authorize decisions on the basis of the PIIFCAF Policy.
[34] The Applicant submits that s 91(12) relates to the fishery as a resource, but does not extend to ancillary activities related to that industry, such as contracts between processors and harvesters (R v Roberts, 1882 CarswellNat 7 (SCC) at para 36 (“Roberts”). Accordingly, s 91(12) does not authorize PIIFCAF for three reasons. First, s 91(12) does not give Parliament jurisdiction to regulate fish processors as this is a matter for the Provincial governments under s 92(13) (Reference re: Fisheries Act, 1914 (Can), [1930] AC 111 at para 20 (“Reference re: Fisheries Act”)) and is not necessarily incidental to s 91(12) (Reference re: Fisheries Act at paras 23-25). Second, s 92(12) does not give the Minister power to regulate the economic relationships that surround the fishery, including contracts between fish processors and fish harvesters, which are matters of Provincial competence (British Columbia Packers Ltd v Canada (Labour Relations Board), 1974 CarswellNat 132F (FCTD) at paras 1-3 (“BC Packers”) nor to regulate the economic relationships between the owners of fishing vessels and the crews of those vessels (Mark Fishing Co v UFAW, 1972 CarswellBC 95 (BCCA) at paras 7-13, 18-42). And, finally, the valid exercise of s 91(12) requires a connection to the fishery as a resource and the PIIFCAF Policy has no such connection (Fowler v The Queen, [1980] 2 SCR 213; Northwest Falling Contractors Ltd v The Queen, [1980] 2 SCR 292; Ward v Canada (Attorney General), 2002 SCC 17 at paras 20-24, 34-36, 41-49 (“Ward”)). The Applicant submits that there is no evidence that the PIIFCAF Policy has any impact for fish stocks or conservation.
Respondent’s Position [35] The Respondent submits the PIIFCAF Policy is authorized by the Fisheries Act. Parliament’s power over “sea coasts and inland fisheries” pursuant to s 91(12) is broad and includes managing fisheries to achieve socio-economic objectives (Ward at paras 2, 34, 41; Comeau’s Sea Foods v Canada, [1997] 1 SCR 12 at para 37 (“Comeau’s Sea Foods”); Gulf Trollers Assn v Canada (Minister of Fisheries and Oceans), [1986] FCJ No 705, 32 DLR (4th) 737 at para 16 (“Gulf Trollers”); MacKinnon v Canada, [1987] 1 FC 490 at paras 16-17, 23-24 (“MacKinnon”); Carpenter Fishing Corp v Canada, [1998] 2 FC 548 (FCA) at paras 34-40 (“Carpenter Fishing”)). Federal fisheries power extends to managing the fisheries on social, economic or other grounds “either in conjunction with steps taken to conserve, protect, harvest the resource or simply to carry out social, cultural or economic goals or policies” (Gulf Trollers at para 16) and is not confined to conserving fish stocks, but also extends to the management and control of the fisheries as a public resource, which has many aspects, including economic considerations (Ward at paras 2, 34, 41; Comeau’s Sea Foods at para 37).
[36] Further, the Courts have consistently held that the Fisheries Act gives the Minister wide discretion to manage fisheries in the public interest, including taking into account social and economic factors in managing and allocating a fishery resource (Tucker v Canada, [2000] FCJ No 1868 at para 18 (“Tucker”), aff’d 2001 FCA 384; Malcolm at para 52; Carpenter Fishing at paras 34-35, 40; Association des Senneurs du Golf Inc v Canada (Minister of Fisheries) (1999), 175 FTR 25, 94 ACWS (3d) 774 at para 25 (“Association des Senneurs”), aff’d 2001 FCA 276; Canada (Attorney General v Arsenault, 2009 FCA 300 at paras 40, 57 (“Arsenault”)). The Minister’s absolute discretion to issue licences under s 7 of the Fisheries Act is consonant with the overall policy of the Fisheries Act that Canada’s fisheries are a common property resource that the Minister has a duty to manage, conserve and develop in the public interest (Comeau’s Sea Foods at paras 37, 46; Area Twenty Three Snow Crab Fisher’s Assn v Canada (Attorney General), 2005 FC 1190 at paras 19-20; Campbell v Canada (Attorney General), 2006 FC 510 at para 19 (“Campbell”)).
[37] The Respondent submits that the PIIFCAF Policy is consistent with the wide ambit of permissible purposes of the Fisheries Act. It works in conjunction with other policies to achieve the identifiable and acceptable socio-economic objectives of supporting a diverse Atlantic fishery, avoiding market concentration, and maximizing the economic benefits of the resources for participants in isolated rural fishing communities (Tucker at para 18). Conversely, controlling agreements are deliberately designed to circumvent licencing policies. They constitute a “mischief” resulting in individual fish harvesters losing control over their licences and shifting the benefits of the resource away from individual fish harvesters and the isolated coastal communities that rely on it to fish processors. The existence of controlling agreements, and their effects, is a relevant factor for the Minister to consider in issuing licences to fish as authorized by s 91(12) of the Constitution Act, 1867 and the Fisheries Act.
[38] The Respondent also submits that a policy cannot be challenged based on the division of powers (Timberwest Forest Corp v Canada, 2007 FCA 389 at para 3 (“Timberwest FCA”); Timberwest Forest Corp v Canada, 2007 FC 148 at para 102 (“Timberwest FC”); Little Sisters Book & Art Emporium v Canada (Minister of Justice), 2000 SCC 69 at para 89). The PIIFCAF Policy is not a legislative instrument; it is a non-binding policy serving to guide the Minister’s exercise of his lawful discretion to issue commercial inshore fishing licences. As such, it lacks any legal force by which it could intrude on provincial legislative jurisdiction (Campbell at paras 18, 45). The constitutional validity of an administrative policy like PIIFCAF is reviewable only on the ground that its enabling statute is unconstitutional, and here the Applicant has not challenged the Fisheries Act. Without such a challenge, a division of powers analysis is inapplicable to the PIIFCAF Policy. Further, there is no meaningful distinction between asserting that the Fisheries Act must be interpreted (i.e., read down) to provide for only “constitutionally valid” policies and making a more straightforward claim that the PIIFCAF Policy itself is unconstitutional.
[39] The Respondent submits that in the alternative and in any event, the pith and substance of the PIIFCAF Policy is management of the inshore fishery, which falls under s 91(12). While the Policy incidentally touches on contracts, it is not unconstitutional or outside the scope of federal authority as a result (Timberwest FC at paras 103-114). This was demonstrated by the Supreme Court of Canada in Ward (Ward at para 40; MacKinnon at paras 9, 17, 24). Similarly, the PIIFCAF Policy is one policy factor that exists within the context of a broader licencing scheme that is concerned with the overall management and control of the Atlantic inshore fishery. While the PIIFCAF Policy references controlling agreements, in substance it deals with the control of licences, which is in the Minister’s purview in managing the fishery and controlling access to the resource (Comeau’s Sea Foods at para 37; Ward at para 49).
[40] The Respondent submits that the Minister has the widest possible discretion with respect to issuing licences, which extends to the considerations the Minster chooses to take into account as appropriate in making licencing decisions. Deference is owed to the decision-maker’s choice of relevant considerations (Comeau’s Sea Foods at paras 37, 46). Here, the Minister has determined that keeping control of licences with individual licence holders is important and there is no basis for the Court to interfere with the Minister’s assessment that the existence of controlling agreements, which hand control over licences to third parties, is a relevant licencing consideration.
Analysis [41] The relevant legislative provisions are set out below for ease of reference.
Constitution Act, 1867
91. It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say,
91. Il sera loisible à la Reine, de l’avis et du consentement du Sénat et de la Chambre des Communes, de faire des lois pour la paix, l’ordre et le bon gouvernement du Canada, relativement à toutes les matières ne tombant pas dans les catégories de sujets par la présente loi exclusivement assignés aux législatures des provinces; mais, pour plus de garantie, sans toutefois restreindre la généralité des termes ci-haut employés dans le présent article, il est par la présente déclaré que (nonobstant toute disposition contraire énoncée dans la présente loi) l’autorité législative exclusive du parlement du Canada s’étend à toutes les matières tombant dans les catégories de sujets ci-dessous énumérés, savoir :
…
…
12. Sea Coast and Inland Fisheries.
Les pêcheries des côtes de la mer et de l’intérieur.
…
…
92. In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say,
92. Dans chaque province la législature pourra exclusivement faire des lois relatives aux matières tombant dans les catégories de sujets ci-dessous énumérés, savoir :
…
…
13. Property and Civil Rights in the Province.
La propriété et les droits civils dans la province;
…
…
16. Generally all Matters of a merely local or private Nature in the Province.
Généralement toutes les matières d’une nature purement locale ou privée dans la province.
Fisheries Act
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.
Department of Fisheries and Oceans Act
4 (1) The powers, duties and functions of the Minister extend to and include all matters over which Parliament has jurisdiction, not by law assigned to any other department, board or agency of the Government of Canada, relating to
4 (1) Les pouvoirs et fonctions du ministre s’étendent d’une façon générale à tous les domaines de compétence du Parlement non attribués de droit à d’autres ministères ou organismes fédéraux et liés :
(a) sea coast and inland fisheries;
a) à la pêche côtière et à la pêche dans les eaux internes;
(b) fishing and recreational harbours;
b) aux ports de pêche et de plaisance;
(c) hydrography and marine sciences; and
c) à l’hydrographie et aux sciences de la mer;
(d) the coordination of the policies and programs of the Government of Canada respecting oceans.
d) à la coordination des plans et programmes du gouvernement fédéral touchant aux océans.
(2) The powers, duties and functions of the Minister also extend to and include such other matters, relating to oceans and over which Parliament has jurisdiction, as are by law assigned to the Minister.
(2) Les pouvoirs et fonctions du ministre s’étendent en outre aux domaines de compétence du Parlement liés aux océans et qui lui sont attribués de droit.
[42] In my view, the starting point for an analysis of whether the Minister’s decision was based on relevant considerations is the 2002 decision of the Supreme Court of Canada in Ward, which addresses both the scope of federal fisheries powers and the duties of the Minister as well as the application of the “pith and substance” analysis to a fisheries related matter.
[43] In Ward, the applicant held a commercial licence issued to him under the Fisheries Act which permitted him to harvest hooded and harp seals. Section 27 of the Marine Mammal Regulations prohibited the sale, trade or barter of young harp (whitecoats) and hooded (bluebacks) seals. The applicant was charged with selling pelts contrary to the regulation and argued that s 27 was ultra vires Parliament.
[44] The Supreme Court of Canada held that s 27 was intra vires Parliament under its fisheries powers. The purpose of the provision was to control the killing of bluebacks and whitecoats by prohibiting their sale, making it largely useless to harvest them. Parliament’s object was to regulate the seal fishery by eliminating the commercial hunting of whitecoats and bluebacks while allowing for limited harvesting for non-commercial purposes. The prohibition existed in the context of a scheme concerned with the overall “management and control” of the marine fisheries resource. It was not directed at controlling commerce or property but rather was designed to curtail a hunt that was damaging the economic viability of the sealing industry and the fisheries resource in general. The Court held that, while the method chosen to curtail the commercial harvest of bluebacks and whitecoats may have been imperfect, efficiency was not a valid consideration in the pith and substance analysis. Further, to argue that because the legislative measure was a prohibition on sale, it must in pith and substance be concerned with the regulation of sale, confused the purpose of s 27 with the means chosen to achieve it. Viewed in the context of the legislation as a whole and the legislative history, there was nothing to suggest that Parliament was trying to regulate the local market for trade of seal and seal products. Section 27 was in pith and substance concerned with the management of the Canadian fishery and fell within federal fisheries power which is not confined to conserving fish stocks, but extends more broadly to maintenance and preservation of the fishery as a whole, including its economic value.
[45] The Supreme Court stated that, although broad, fisheries power is not unlimited, Parliament must respect the provincial power over property and civil rights. Whether a matter best conforms to a subject within federal or provincial jurisdiction cannot be determined by drawing a line between federal and provincial powers on the basis of conservation or sale. The activity at stake must be examined to determine whether the matter regulated is related in pith and substance to the federal fisheries power or the provincial power over property and civil rights. As s 27 was vitally connected to protecting the economic of the Canadian fishery as a whole, it was a valid federal measure. That result fully respected the provinces’ constitutional right to control property and civil rights.
[46] The Supreme Court undertook a thorough review of the jurisprudence concerning the scope of the federal fisheries power, including several of its older decisions which are relied upon by the Applicant in this matter, and concluded:
34 First, the preponderance of authority suggests that the fisheries power is not confined to conservation, nor to pre-sale activities, but extends more broadly to maintenance and preservation of the fishery as a whole, including its economic value. In The Queen v. Robertson (1882), 6 S.C.R. 52, Ritchie C.J. described the fisheries power as extending “to subjects affecting the fisheries generally, tending to their regulation, protection and preservation”. Accordingly, Parliament’s power extended to “all such general laws as enure as well to the benefit of the owners of the fisheries as to the public at large, who are interested in the fisheries as a source of national or provincial wealth” (pp. 120-21).
35 In Reference re Certain Sections of the Fisheries Act, 1914, [1928] S.C.R. 457 (aff’d [1930] A.C. 111 (P.C.)), Newcombe J. cited, at p. 472, the definition of a fishery given in Patterson on the Fishery Laws (1863), at p. 1, as “the right of catching fish in the sea, or in a particular stream of water”. But he went on to cite the broader “leading definition” from J. A. H. Murray’s A New English Dictionary (1888), defining fishery in terms of the “business, occupation or industry of catching fish or of taking other products of the sea or rivers from the water”. Davey C.J.B.C., in Mark Fishing Co. v. United Fishermen & Allied Workers’ Union (1972), 24 D.L.R. (3d) 585 (B.C.C.A.), said of this: “The point of Patterson’s definition is the natural resource, and the right to exploit it, and the place where the resource is found, and the right is exercised” (p. 592). See also International Fund for Animal Welfare, Inc. v. Canada, [1987] 1 F.C. 244 (T.