Robinson v. Canada (Attorney General)

Robinson v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2020-09-30
Neutral citation
2020 FC 942
File numbers
T-562-19
Notes
Digest
Decision Content
Date: 20200930
Docket: T-562-19
Citation: 2020 FC 942
Ottawa, Ontario, September 30, 2020
PRESENT: The Honourable Mr. Justice Southcott
BETWEEN:
DANA ROBINSON
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
JUDGMENT AND REASONS
I. Overview
[1] The Applicant, Mr. Dana Robinson, is a fisherman who holds an owner-operator licence authorizing him to fish lobster in Nova Scotia. He is seeking judicial review of a decision issued on March 6, 2019 by the Deputy Minister [DM] of the Department of Fisheries and Oceans Canada [DFO], denying his request for ongoing authorization to use a medical substitute operator [MSO] for his lobster fishing licence [the Decision].
[2] The purpose of a MSO authorization is to allow another person to carry out the activities authorized under a fishing licence where the holder of the licence is affected by an illness preventing him or her from personally operating a fishing vessel. In the Decision, the DM denied Mr. Robinson’s request, on the basis that it exceeded the five-year limitation to the use of a MSO set out in s 11(11) of the DFO’s Commercial Fisheries Licensing Policy for Eastern Canada, 1996 [the 1996 Policy]. The DM concluded that the circumstances raised by Mr. Robinson to support his request for an exception to this policy did not constitute extenuating circumstances that would warrant an exception.
[3] Mr. Robinson’s Notice of Application, initiating this application for judicial review, sought several forms of relief, including:
an order quashing the Decision as incorrect or unreasonable;
a declaration that the Decision is discriminatory and contrary to s 15(1) of the Canadian Charter of Rights and Freedoms [the Charter], Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [the Constitution Act, 1982];
a declaration that the Decision is discriminatory and contrary to the United Nations Convention on the Rights of Persons with Disabilities [the Convention];
a declaration that the five year limit in s 11(11) of the 1996 Policy infringes s 15(1) of the Charter; and
a declaration that any discretion delegated by the Minister of Fisheries and Oceans [the Minister] to the DM with respect to licensing is subject to s 15(1) of the Charter.
[4] This application was argued on September 10, 2020, by video conference using the Zoom platform, together with an application in Court File No. T-563-19, in which another applicant, the Estate of the late Mr. Lester Martell, raised essentially the same arguments in respect of a decision by the DM denying Mr. Martell’s request for ongoing authorization to use a MSO for his own lobster fishing licence [the Martell Application]. The applicants in both matters are represented by the same counsel.
[5] As explained in greater detail below, this application is allowed, because I have concluded that, although the Decision engaged Mr. Robinson’s s 15(1) Charter equality rights as a person with a physical disability, the DM did not take those rights into account in making the Decision. The Decision will therefore be set aside and returned to the decision-maker for re-determination in accordance with these Reasons. I have not granted Mr. Robinson’s request for a declaration under s 52 of Constitution Act, 1982, that the five year limit in s 11(11) of the 1996 Policy infringes s 15(1) of the Charter and is of no force and effect. I have concluded that the 1996 Policy is not in the nature of law or legislation, the constitutionality of which can be challenged under s 52 of the Constitution Act, 1982.
II. Background
A. Factual Context
[6] Mr. Robinson is a fisherman and he has been a fisherman for all of his working life. He was 58-years-old when he filed this application. The licence that is the subject of this application authorizes him to fish lobster on the Southwest coast of Nova Scotia, in an area known as Lobster Fishing Area [LFA] 35 [the Licence]. He has held the Licence since 2007 and fished it personally, on a full-time basis, until a medical condition prevented him from doing so.
[7] In 2009, Mr. Robinson began having medical problems related to his legs. The medical reports indicate that Mr. Robinson suffers from venous insufficiency with leg pain when standing. His medical condition makes it impossible for him to stand for more than a few hours at a time without suffering from throbbing and swelling in his legs. While he has undergone medical treatment, his condition remains unresolved. Because of his condition, he is unable to meet the daily physical demands of being on his fishing vessel on a full-time basis.
[8] As a result, Mr. Robinson requested and received from the DFO an authorization to use a MSO. The DFO thereafter continued to authorize a MSO until the events (explained below) giving rise to this application. The legitimacy of his medical condition, and the incapacity it represents, are not in issue in this application.
[9] In his affidavit filed in this application, Mr. Robinson states that he maintains full control over his vessel’s operations, manages the substitute operator and his other employees, and makes most of the operational decisions related to his vessel, including negotiating the wharf price of the catch, arranging bait and fuel purchases, and managing the fishing operation’s financial affairs. He employs three full-time seasonal crew members to assist him in fishing his Licence: two deck hands and a captain (i.e. the MSO) who operates his vessel.
[10] In October 2015, Mr. Robinson received a letter from the DFO informing him that his latest request for a MSO authorization had been approved to July 31, 2016 but that such approval extended beyond the five-year maximum period set out in s 11(11) of the 1996 Policy. This letter put him on notice that future requests for a MSO would no longer be approved.
[11] I note that the lobster fishing season in LFA 35 is a split season covering two periods, from October 15 to December 31 of one year and from March 1 to July 31 of the next. It is common ground between the parties that the applicable nomenclature is such that, for instance, the “2021 fishing season” represents October 15 to December 31, 2020 and March 1 to July 31, 2021.
[12] In October 2016, Mr. Robinson appealed the October 2015 decision to the Maritimes Region Licensing Appeal Committee [MRLAC]. In March 2017, he received a letter from MRLAC advising him that his request for an exception to the policy and for a MSO to fish for the current season (i.e., until July 31, 2017) had been approved. However, the letter advised Mr. Robinson that his request for an exception to the policy beyond the current season was denied.
[13] Mr. Robinson appealed the MRLAC’s decision to the Atlantic Fisheries Licence Appeal Board [AFLAB], seeking to have continued use of a MSO authorization, with no end date. He invoked a number of grounds to challenge the DFO’s refusal, including that the five-year limit in the 1996 Policy and the MRLAC’s decision made pursuant to it were arbitrary, unjust and unconstitutional for violating his right to equality under s 15 of the Charter.
[14] On March 6, 2019, on the recommendation of the AFLAB and the DFO, the DM denied Mr. Robinson’s appeal, in the Decision that is the subject of this application for judicial review. This Decision references s 23(2) of the Fishery (General) Regulations, SOR/93-53 [the Regulations], made under the Fisheries Act, RSC 1985, c F-14 [the Act], and s 11(11) of the 1996 Policy. In the Decision, the DM refers to Mr. Robinson raising financial hardship and his succession plan, as circumstances justifying an exception to the five-year maximum period in the 1996 Policy, and finds that these do not constitute extenuating circumstances warranting an exception. The Decision does not expressly reference Mr. Robinson’s Charter arguments.
[15] I note that, throughout the ensuing legal proceedings, the DFO continued to authorize Mr. Robinson to use a MSO to fish his Licence, up to the fishing season ending on July 31, 2019. The DFO did not provide such authorization beyond that date, and Mr. Robinson sought interlocutory relief in this Court pending the outcome of his application for judicial review. On June 28, 2019, Justice Gascon issued an injunction requiring the DFO to authorize Mr. Robinson to use a MSO for the remaining fishing period in LFA 35 in the 2019 calendar year, i.e. from October 15 to December 31, 2019, unless this application was decided prior to the end of that period (see Robinson v Canada (Attorney General), 2019 FC 876 [the Robinson Injunction]).
B. The DFO’s Owner-Operator Policy and Fleet Separation Policy
[16] The requirement for Mr. Robinson to obtain authorization for a MSO stems from what the DFO refers to as its Owner-Operator Policy and, in a broad sense, its Fleet Separation Policy. In this application, the DFO filed an affidavit by Morley Knight, who was the Assistant Deputy Ministers of Fisheries Policy with the DFO prior to his December 2017 retirement. Mr. Knight explains these policies and the reasons they were developed.
[17] With respect to the Fleet Separation Policy, Mr. Knight explains that, due to increased participation in the Canadian fishery in the late 1970s, concern developed about control by fish processing companies of the inshore harvesting sector, which could lead to fewer independent licence holders and decreased benefit from the fisheries resource for local communities. To address this concern, the DFO introduced the Fleet Separation Policy, which separated the interests of the harvesting sector from those of the processing sector. The DFO stopped issuing new licences for fisheries in the inshore fleet to processing corporations in order to promote the control of fishing licences in the inshore fleet by those residing in and operating out of local coastal communities. These policy elements are incorporated in the 1996 Policy.
[18] The Owner-Operator Policy was implemented to purse similar objectives. In the Robinson Injunction, Justice Gascon describes the history and main features of this policy initiative. As I do not understand this policy background to be controversial between the parties, I borrow liberally from Justice Gascon’s decision in my summary of the Owner-Operator Policy below.
[19] The Owner-Operator Policy was formally adopted in 1989 across the entire Eastern Canada inshore fleet, and its key elements were ultimately incorporated into the 1996 Policy. As stated in Mr. Knight’s affidavit, its goal is to maintain an economically viable inshore fishery by keeping the control of licences in the hands of independent owner-operators in small coastal communities, and to allow them to make decisions about the licences issued to them. To achieve this, the Owner-Operator Policy requires licence holders to personally fish licences issued in their name. This means that the licence holder is required to be on board the vessel authorized to fish the licence.
[20] Subsection 23(2) of the Regulations creates an exception to this requirement. It provides that, where a licence holder or operator is unable to engage in the activity authorized by the licence due to “circumstances beyond the control of the holder or operator,” a fishery officer or a DFO employee engaged in the issuance of licences can authorize another person (i.e., a substitute operator) to carry out those activities. The “circumstances beyond the control” of a licence holder or operator are not defined in the Regulations.
[21] Over time, the DFO developed policy guidance with respect to situations that may be considered circumstances that are beyond the control of the licence holder. Echoing the language used in the Regulations, s 11(10) of the 1996 Policy states:
(10) As provided under the Fishery (General Regulations, where, because of circumstances beyond his control, the holder of a licence or the operator named in a licence is unable to engage in the activity authorized by the licence or is unable to use the vessel specified in the licence, a fishery officer or other authorized employee of the Department may, on the request of the licence holder or his agent, authorize in writing another person to carry out the activity under the licence or authorize the use of another vessel under the licence.
(10) Tel qu'énoncé dans le Règlement de pêche (dispositions générales), si, en raison de circonstances indépendantes de sa volonté, le titulaire d'un permis ou l'exploitant désigné dans le permis sont dans l'impossibilité de se livrer à l'activité autorisée par le permis ou d'utiliser le bateau indiqué sur le permis, un agent des pêches ou tout autre employé autorisé du Ministère peut, à la demande du titulaire ou de son mandataire, autoriser par écrit une autre personne à pratiquer cette activité en vertu du permis ou autoriser l'emploi d'un autre bateau.
[22] Section 11 (11) of the 1996 Policy provides further guidance in instances where the licence holder invokes illness as a circumstance beyond his or her control. Pursuant to that provision, the 1996 Policy limits the designation of a substitute operator to a total period of five years where the circumstances beyond the control of the licence holder are of a medical nature. Section 11(11) reads as follows:
(11) Where the holder of a licence is affected by an illness which prevents him from operating a fishing vessel, upon request and upon provision of acceptable medical documentation to support his request, he may be permitted to designate a substitute operator for the term of the licence. Such designation may not exceed a total period of five years.
(11) Si le titulaire d'un permis est affecté d'une maladie qui l'empêche d'exploiter son bateau de pêche, il peut être autorisé, sur demande et présentation de documents médicaux appropriés, à désigner un exploitant substitut pour la durée du permis. Cette désignation ne peut être supérieure à une période de cinq années.
[23] In response to the global economic downturn in 2008, the DFO introduced flexibility in the application of the five-year limit set out in s 11(11) in the hopes of enhancing economic support for the industry. In 2015, the DFO resumed applying the five-year time limit, following concerns expressed by certain licence holders and their representatives that the DFO’s substitute operator designations were being abused by some licence holders, to the detriment of the objectives of the Owner-Operator Policy and Fleet Separation Policy. Licence holders who had reached or exceeded the five-year limit were notified that they had reached the policy time limit and that further extensions would only be approved on a case-by-case basis.
III. Issues
[24] The Applicant’s Memorandum of Fact and Law filed in this application frames the issues to be determined by the Court as follows:
What is the applicable standard of review?
Was the Decision correct or reasonable (depending on the standard of review selected)?
Did the DM give sufficient reasons for the Decision?
Is the five-year limit in the 1996 Policy discriminatory and of no force and effect because it infringes the Charter?
Does the Decision and/or the 1996 Policy comply with the Convention?
[25] I would add to this list a preliminary issue raised by the Respondent, the Attorney General of Canada: whether this application is moot, because the injunction issued by Justice Gascon effectively afforded Mr. Robinson the remedy he is seeking in respect of the Decision.
IV. Analysis
A. Is this application for judicial review moot?
[26] The Attorney General submits that, because the Robinson Injunction granted Mr. Robinson use of a MSO until the end of 2019, he has already received the remedy sought in applying for judicial review of the Decision. This submission relies significantly on the nature of fishing licences and the statutory regime governing their issuance.
[27] Section 7 of the Act affords the Minister absolute discretion to issue fishing licences. Pursuant to s 10 of the Regulations, a “document” (which includes a licence) that is issued for a particular calendar or fiscal year expires at the conclusion of that year. Section 16 of the Regulations provides that a licence is the property of the Crown and is not transferable and that the issuance of a licence to any person does not confer any future right or privilege for the person to be issued a licence of the same type.
[28] Under the heading in the regulations, “Conditions of Licences,” s 22 of the Regulations authorizes the Minister, for the proper management and control of fisheries and the conservation and protection of fish, to specify conditions in licences. Section 23(2) of the Regulations, which provides the regulatory authority for authorizing a MSO, falls under the same heading in the Regulations. I understand the Attorney General’s submission to be, and I accept, that authorization to use a MSO represents a condition that is attached to a licence.
[29] However, in support of its position that Mr. Robinson’s application for judicial review is now moot, the Attorney General also submits that, if the Court were to issue a decision touching on a period that extends beyond December 31, 2019 (i.e., beyond the duration of the Robinson Injunction), the Court would be fettering the Minister’s discretion over whether to issue a licence (with conditions) to Mr. Robinson for such period.
[30] I disagree with this position. I do not accept either: (a) that the Robinson Injunction has afforded Mr. Robinson the relief he has sought in this application; or (b) that the Court is unable to afford him such relief without fettering the Minister’s discretion.
[31] As explained in Borowski v Canada (Attorney General), [1989] 1 SCR 342 at page 353, a proceeding is moot when a decision of the court would not have the effect of resolving some controversy which affects or may affect the rights of the parties. Then, subject to a residual discretion, the court will decline to decide the case.
[32] In the present case, the position Mr. Robinson advanced before AFLAB (and therefore before the DM) included the argument that the decision to impose a temporal limitation upon his use of a MSO was arbitrary and infringed his equality rights under s 15(1) of the Charter, as a person with a disability. This argument was not limited to a particular fishing season. I cannot conclude that Mr. Robinson received the relief he requested through the Robinson Injunction and that there is no longer a live controversy between the parties.
[33] In so deciding, I am conscious of the points raised by the Attorney General as to the nature of fishing licences and their limited duration. Indeed, the Attorney General raised these points in the Robinson Injunction before Justice Gascon, who took them into consideration in fashioning the particular injunctive relief he afforded (at paras 39 to 46). Justice Gascon agreed with the Attorney General that the Court could not impose a remedy relating to a MSO authorization, which would implicitly mean or require a renewal of Mr. Robinson’s Licence beyond 2019. Granting an interlocutory injunction, which forced the issuance of a MSO authorization for a time period in which Mr. Robinson did not yet have a licence, would amount to a fettering of the Minister’s discretion.
[34] However, Justice Gascon also noted that Mr. Robinson was not asking the Court to order the issuance or renewal of his Licence beyond calendar year 2019 or seeking any conclusion with respect to the Licence itself. The remedies sought concerned only the MSO authorization attached to the Licence (at para 44). In the result, Justice Gascon ordered the DFO to issue Mr. Robinson a MSO authorization to the end of calendar year 2019.
[35] Justice Gascon’s reasons provide a helpful analysis of the application of the principles raised by the Attorney General to the interlocutory relief then sought from the Court. These arguments are potentially relevant to the merits of the application and will be further considered later in these Reasons. However, these arguments do not support a conclusion that there is no longer a live controversy between the parties, such as would render the application for judicial review moot.
B. What is the applicable standard of review?
[36] The parties disagree on the standard applicable to this Court’s review of the Decision. The Attorney General takes the position that the reasonableness standard applies. The Attorney General relies on Doré v Barreau du Québec, 2012 SCC 12 [Doré], in which the Supreme Court of Canada drew a distinction between circumstances where a reviewing court is considering an administrative tribunal’s determination of the constitutionality of a law, in which case the standard of review is correctness (at para 43), and circumstances where the court is considering whether a tribunal has taken sufficient account of Charter values in making a decision, in which case the standard of reasonableness applies (at paras 43 to 58).
[37] In circumstances of the latter sort, the decision-maker must conduct a proportionality exercise by considering how the Charter value at issue will best be protected in view of the statutory objectives, balancing the severity of the interference with the Charter protection against the statutory objectives. A reviewing court must in turn consider the reasonableness of this balancing (at paras 56 to 58).
[38] The Attorney General argues that Mr. Robinson’s challenge of the Decision falls into the latter category, requiring a reasonableness review. It also notes that, in its recent and seminal decision on standard of review in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov], the Supreme Court expressly stated that it was not displacing the standard of review set out in Doré (Vavilov at para 57).
[39] In contrast, Mr. Robinson submits that the correctness standard applies to the Court’s review of the Decision. He relies on the decision in Canadian Broadcasting Corporation v Ferrier, 2019 ONCA 1025 [Ferrier], in which the Court of Appeal for Ontario relied on Doré and Vavilov in concluding that, in a circumstance involving refusal or failure by an administrative decision-maker to consider an applicable Charter right, correctness applies (at paras 34 to 38):
34 If the Charter rights are considered by the administrative decision maker, the standard of reasonableness will ordinarily apply. In Doré, the Disciplinary Council of the Barreau du Québec considered and rejected the argument that the Code of ethics of advocates requirement that advocates conduct themselves with “objectivity, moderation and dignity” infringed the s. 2(b) Charter right to freedom of expression. Similarly, in Episcopal Corporation of the Diocese of Alexandria-Cornwall v. Cornwall Public Inquiry, 2007 ONCA 20, 278 D.L.R. (4th) 550, the commissioner of inquiry considered the Dagenais/Mentuck test and rejected the argument that he should issue a publication ban regarding an alleged wrong-doer. In both cases, a reasonableness standard of review was applied when the decisions were challenged.
35 On the other hand, the refusal or failure to consider an applicable Charter right should, in my opinion, attract a correctness standard of review. As the Supreme Court explained in Dunsmuir, at para. 60, citing Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, at para. 62: “where the question at issue is one of general law ‘that is both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise’ … uniform and consistent” answers are required. See also Alberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53, [2016] 2 S.C.R. 555, at paras. 20-21. This is confirmed by Vavilov, at para. 17: “[T]he presumption of reasonableness review will be rebutted…where the rule of law requires that the standard of correctness be applied. This will be the case for certain categories of questions, namely constitutional questions, general questions of law of central importance to the legal system as a whole and questions related to the jurisdictional boundaries between two or more administrative bodies”.
36 The s. 2(b) Charter right to freedom of expression and freedom of the press relied upon by the appellants is both a matter of central importance to the legal system and a constitutional question. As confirmed by Vavilov, at para. 53, the application of the correctness standard to “constitutional questions, general questions of law of central importance to the legal system as a whole…respects the unique role of the judiciary in interpreting the Constitution and ensures that courts are able to provide the last word on questions for which the rule of law requires consistency and for which a final and determinate answer is necessary”.
37 The issue before the decision maker was whether the Dagenais/Mentuck test had a bearing on the discretionary decision he had to make. That is not the same as the issue presented in Doré and Episcopal of how the s. 2(b) Charter right impacted or affected the discretionary decision he had to make. The decision maker did not reach the point of factoring the Dagenais/Mentuck test into his discretionary decision because he decided that it did not apply. A reasonableness standard assumes a range of possible outcomes all of which are defensible in law: see Vavilov, at para. 83. That standard is inappropriate here. The Dagenais/Mentuck test either applied or it did not.
38 I refer here to a passage in Episcopal which, in my view, has a direct bearing on this issue. In that case, the inquiry commissioner applied the Dagenais/Mentuck test when declining to order an in camera hearing. This court held that his decision was reviewable on a reasonableness standard because he did consider the impact of the Charter right on the decision he had to make. However, we noted, at para. 36, that in Dagenais itself, the judge who made the challenged decision did not have available the new test enunciated when the case went to the Supreme Court. That meant that his “failure to arrive at a result that could be supported under the new test … amount[ed] to an error of law”, reviewable on a standard of correctness. The same applies here. As I will explain, the decision maker did not have the benefit the decision of this court in Langenfeld v. Toronto Police Services Board, 2019 ONCA 716, 437 D.L.R. (4th) 614, an authority that bears directly upon the discretionary decision he was asked to make.
[40] As explained more fully elsewhere in Ferrier (at para 15), the Dagenais/Mentuck test is a test applicable to discretionary decisions limiting freedom of the press in relation to court proceedings. The issue before the Court of Appeal for Ontario in Ferrier, sitting in appeal of a decision of the Divisional Court, was whether the Thunder Bay Police Services Board failed to respect the s 2(b) Charter right to freedom of expression by failing to require an open hearing in considering a complaint of police misconduct. Reviewing the issue on the correctness standard which it found to apply, the Court of Appeal concluded that the decision-maker did not err in finding that the Dagenais/Mentuck test was not applicable to the decision whether to hold an open hearing (at para 52). However, the Court nevertheless allowed the appeal and set aside the Board’s decision, on the basis that it had failed to consider recent jurisprudence confirming that s 2(b) of the Charter protects the right of members of the public to attend meetings of police service boards (at paras 53 to 59).
[41] Mr. Robinson relies upon the standard of review analysis in Ferrier, because one of his principal submissions in challenging the Decision is that the DM entirely failed or declined to take into account his rights under s 15(1) of the Charter. He argues these circumstances attract correctness review. The Attorney General disputes this characterization of the Decision. The Attorney General argues that s 15(1) equality rights are not engaged by the Decision and, in the alternative, submits that the record evidences that the Decision implicitly took into account such rights and represented a proportionate balancing of those rights against statutory objectives as required by a reasonableness review under Doré.
[42] I will return shortly to the parties’ disparate characterizations of the Decision and whether it implicitly took into account Charter values. On the subject of standard of review, I accept that Ferrier supports Mr. Robinson’s position that the question of whether a Charter right has a bearing on an administrative decision is governed by the correctness standard. I would observe that this principle arguably represents an evolution from Doré. However, I also note that, following its conclusion that s 2(b) of the Charter applied to the issue before the Board in that case, the Court in Ferrier added the following (at para 60):
60 While I reach that conclusion on a correctness standard, I add here that even if a reasonableness standard of review applies, I fail to see how a decision resulting from an unexplained refusal or failure to consider an applicable Charter right could be considered reasonable. This court’s application of s. 2(b) in Langenfeld means that the decision ordering a closed hearing, through no fault of the decision maker, failed to consider an applicable right protected by the Charter. That decision cannot survive scrutiny under the Vavilov test for reasonableness. The reasonableness standard requires “an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker”; Vavilov, at para. 85. A decision that fails to consider an applicable Charter right cannot satisfy that standard or “the principle that the exercise of public power must be justified, intelligible and transparent”: Vavilov, at para. 95.
[43] Taking into account this reasoning, with which I agree, the Decision will demonstrate reviewable error if the DM failed without explanation to consider an applicable Charter right, regardless of which standard of review applies. As previously noted, the parties dispute both (a) whether s 15(1) of the Charter applies in the context of the Decision; and (b) whether s 15(1) rights were indeed taken into account. I therefore turn to consideration of those questions, in the course of which I will return to the application of the standard of review.
C. Was the Decision correct or reasonable?
(1) Relevant Jurisprudence
[44] The parties are largely in agreement on the jurisprudential principles governing the application of the Charter to administrative decision-making. Referencing Doré and the subsequent decisions of the Supreme Court in Loyola High School v Québec (Attorney General), 2015 SCC 12 [Loyola], Law Society of British Columbia v Trinity Western University, 2018 SCC 32 [LSBC], and Trinity Western University v Law Society of Upper Canada, 2018 SCC 33, the Attorney General accepts that statutorily delegated authority must be exercised in light of constitutional guarantees and the values they reflect. As was stated in LSBC, the framework prescribed by Doré and Loyola for reviewing such decision-making is concerned with ensuring that Charter protections are upheld to the fullest extent possible given statutory objectives within a particular administrative context (at para 57).
[45] Put another way, Charter protections must be affected as little as reasonably possible in light of applicable statutory objectives. This does not mean that the administrative decision-maker must choose the option that limits the Charter protection least. However, if the decision-maker rejects a reasonably available option or avenue that would reduce the impact on the protected right, while still permitting sufficient furtherance of the relevant statutory objectives, such a decision would not fall within a range of reasonable outcomes on judicial review (see LSBC at paras 80-81).
[46] However, the Attorney General emphasizes that the proportionate balancing required by Doré/Loyola is triggered only if the Charter applies to the Decision. As explained in LSBC, there is a preliminary question as to whether the administrative decision engages the Charter by limiting Charter protections (at para 58). Mr. Robinson submits that the Charter is engaged in this case. To establish Charter engagement, he relies on the test for prima facie s 15(1) infringement as explained in Quebec (Attorney General) v Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018 SCC 17 [Alliance]. In that case, the Supreme Court considered whether particular legislative provisions were unconstitutional and described the s 15(1) test as proceeding in two stages: first, considering whether the impugned law, on its face or in its impact, creates a distinction based on an enumerated or analogous ground; and, if so, considering whether the law imposes burdens or denies a benefit in a manner that has the effect of reinforcing, perpetuating, or exacerbating disadvantages (at para 25).
[47] I note that the Attorney General referred the Court to Law v Canada (Minister of Employment and Immigration), [1999] 1 SCR 497, describing a list of contextual factors to be taken into account in performing this analysis. However, Alliance explained that it is not necessary or desirable to apply a step-by-step consideration of these factors and that recent jurisprudence has declined to do so. The focus is not on whether a discriminatory attitude exists or whether a distinction perpetuates negative attitudes about a disadvantaged group, but rather upon the discriminatory impact of the distinction (at para 28).
[48] I conclude that the Alliance test governs the preliminary question whether s 15 of the Charter applies to the Decision. Taking Ferrier into account, the standard of correctness applies to that question.
(2) Whether Section 15(1) of the Charter Applies to the Decision
[49] Mr. Robinson submits that the first stage of the Alliance test is clearly made out. He lives with and is limited by the physical disability created by his medical condition. The existence of that condition is not in dispute. He submits that the Decision, influenced by the five-year limitation upon MSO authorizations in the 1996 Policy, imposes differential treatment on him in comparison to non-disabled fishers, creating a distinction based on the enumerated ground of physical disability. Mr. Robinson argues that licence holders who do not suffer from a medical condition, and are therefore able to personally fish their licences, are in a position to renew and fish their licences indefinitely as long as they abide by the licence terms and conditions. In contrast to that group, the requirement to obtain a MSO authorization and the Decision denying Mr. Robinson that authorization have the impact of depriving him of the ability to fish his Licence.
[50] In connection with the second stage of the Alliance test, Mr. Robinson submits that the Decision is discriminatory in that it denies him the ability to pursue the livelihood of his choice. He emphasizes that he owns and operates the relevant fishing enterprise but that, as a result of the Decision, he is required to give up his livelihood simply because he is physically unable to remain aboard his vessel for the extended periods of time often required to harvest a catch. Mr. Robinson submits that this perpetuates a serious disadvantage for fishers with physical disabilities.
[51] In response, the Attorney General relies significantly on the principles previously canvassed surrounding the nature of a fishing licence. It notes that s 15(1) of the Charter affords individuals the right to equal benefit of the law without discrimination and argues that, as Mr. Robinson is not seeking a benefit of the law, his claim does not engage s 15. The Attorney General submits that Mr. Robinson is seeking a benefit that is not afforded by law to anyone else, as no licence holder has a legal right to fish indefinitely, to receive indefinite renewal of the licence, or to receive indefinite authorization to use a MSO.
[52] In support of its position, the Attorney General relies on Auton (Guardian ad litem of) v British Columbia (Attorney General), 2004 SCC 78 [Auton], in which the petitioners brought an action against the province of British Columbia, alleging that its failure to fund specific treatments of their autistic children violated s 15(1) of the Charter. The Supreme Court found that the benefit claimed, i.e. funding for all medically required treatment, was not a benefit that the law provided to anyone (at para 47). The Court concluded that the impugned legislative scheme did not promise that any Canadian would receive such funding. It conferred only core funding for services provided by medical practitioners, with funding for non-core services left to the province’s discretion (at para 35). The legislative scheme was a partial health plan. As such, the exclusion of particular non-core services could not, without more, be viewed as an adverse distinction based on an enumerated ground amounting to discrimination (at para 43).
[53] In analyzing these arguments, I have considered both the statutory regime under which the Canadian fishery is managed and the practices employed by the DFO in effecting such management. The Attorney General is correct that the holder of a fishing licence does not have a legal right to be issued a renewal of that licence at the conclusion of its term. As explained by Justice Strickland, in considering the 1996 Policy in Elson v Canada (Attorney General), 2017 FC 459 [Elson FC] (aff’d 2019 FCA 27 [Elson FCA]) at paragraph 3:
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 licenses must be renewed, or “replaced”, annually.
[54] However, Mr. Robinson refers to the DFO’s practice, assuming a licence holder’s compliance with its terms and conditions, to reissue the licence to the licence holder each year, or to issue a “replacement” licence to another eligible person upon the licence holder’s request. Mr. Knight described this practice surrounding replacement in his affidavit. It is also captured in the 1996 Policy.
[55] In support of the practice of reissuing licences to a given licence holder year after year, Mr. Robinson notes the explanation of that practice in the chapter authored by David G Henley, “The Fishing Industry,” in Aldo Chricop et al, eds, Canadian Maritime Law, 2nd Ed (Toronto: Irwin Law, 2016) 1024 at 1041-1042. I do not understand the existence of this practice to be controversial between the parties. Indeed, in Saulnier v Royal Bank of Canada, 2008 SCC 58, the Supreme Court recognized that the stability of the fishing industry depends on the Minister’s predictable renewal of fishing licences year after year (at para 14).
[56] The question is whether, against that backdrop, the dispar