Munroe v. Canada (Attorney General)

Munroe v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2021-07-08
Neutral citation
2021 FC 727
File numbers
T-271-20, T-582-20, T-583-20
Decision Content
Date: 20210708
Dockets: T-271-20
T-582-20
T-583-20
Citation: 2021 FC 727
Ottawa, Ontario, July 8, 2021
PRESENT: The Honourable Madam Justice Strickland
Docket: T-271-20
BETWEEN:
TREVOR MUNROE
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
AND BETWEEN:
ANTHONY VEINOT
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
Docket: T-582-20
AND BETWEEN:
TREVOR MUNROE
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
Docket: T-583-20
AND BETWEEN:
ANTHONY VEINOT
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
JUDGMENT AND REASONS
[1] Mr. Munroe and Mr. Veinot each brought applications for judicial review (T-271-20 and T-339-20, respectively) challenging the Department of Fisheries and Ocean’s [DFO] decision to change the quota allocation calculation for Group X, a group of Nova Scotia groundfish licence holders established pursuant to the Operational Guidelines for Community Management Scotia-Fundy Fixed Gear Less than 45’ Sector Maritimes Region, dated December 1998 [Operational Guidelines]. Those applications for judicial review were subsequently consolidated (T-271-20). The same Applicants also each separately brought an application for judicial review of decisions by community management boards [CMBs or Boards], which Boards are established pursuant to the Operational Guidelines. Mr. Munroe challenged a CMB decision declining to agree to his request to transfer his licence and its catch history to another CMB (T-582-20). Mr. Veinot challenged the decision of a CMB not to hold a meeting to consider his request for membership (T-583-20).
[2] Given the commonality of the parties, their counsel, much of the background facts and the considerable overlap of issues and evidence, the consolidated matter of T-271-20 was heard on June 16, 2021. On June 17, 2021, at counsels’ suggestion, T-582-20 and T-583-20 were argued together. The reasons below address each of these three applications for judicial review.
General Factual Background
[3] The Applicants are both Nova Scotia fishermen who hold groundfish licences. Mr. Munroe obtained his licence (# 101220) on May 16, 2018 when DFO approved a request by the existing licence holder that DFO issue the licence as a replacement licence to another eligible fisherman, Mr. Munroe. Mr. Veinot similarly acquired his licence (#102309) on March 23, 2017. Both licences pertain to the “Fixed Gear less than 45’ groundfish fleet for the Maritimes Region” [FG<45’ Fleet], being an inshore, owner operated fleet of vessels of less than 45’ in length engaged in the groundfish fishery.
[4] It is common ground that this fishery operates under a community management system initially established by the Operational Guidelines. It is also common ground that the Operational Guidelines have not been revised or updated since 1998 and do not necessarily reflect the evolution of the community management system over the last 25 years.
[5] Currently, and in a nutshell, under the community management system all FG<45’ Fleet licences issued by DFO to licence holders are “associated with” one of seven identified geographic community groups. Within the seven community groups, there are ten CMBs. The geographic community group designations by DFO are based on its records of the registration, as of December 31, 1996, of the home port of the licence holder at that time. Licence holders must either join the CMB which governs the community group associated with their licence or, they can join what DFO calls “Group X”, which is managed by DFO. Group X is available to those licence holders who do not want, or who are not eligible, to join a CMB.
[6] DFO does not issue individual quotas, quota allocations or catch limits to the fishing licences of individual licence holders in the FG<45’ Fleet. Rather, DFO determines the total allowable catch [TAC] for groundfish stocks for each season and, from the TAC, distributes a quota allocation to each fleet based on “percentage shares”. From the FG<45’ Fleet TAC allocation, DFO sub-distributes a quota allocation to each CMB, also based on percentage shares. DFO determines the percentage share of the quota allocation for a given groundfish stock for each CMB by:
- determining the average catch history from 1986 – 1993 (reference period) for each licence holder in a CMB;
- the average catch histories of all licence holders in that CMB are added together to create the total average catch history for that CMB; and
- the total average catch history for each CMB is then divided by the total average catch history for all of the CMBs, resulting in a percentage share for each CMB.
[7] A CMB’s percentage amount generally remains the same each year, however, the tonnage allocated to a CMB changes depending on the annual TAC, which fluctuates.
[8] This community management system operates on a competitive fishery model in that each licence holder in a community group competitively fishes against the others in that group until the quota allocation for their CMB for that stock for that season is reached.
Factual Background – Group X Quota Allocation
[9] Until 2020, the quota allocation for Group X was calculated using a similar methodology as for the CMBs. DFO determined how much of the catch history of the subject licence(s) (in the reference period) contributed to the percentage share of the CMB associated with that licence(s) for each groundfish stock. If the licence holder opted in to Group X, DFO then reallocated this amount of quota, adjusted to the TAC, to Group X. Group X’s quota allocations are also fished competitively by all members of that group.
[10] In both 2018 and 2019 Mr. Munroe opted to fish his licence through Group X, instead of the CMB associated with his licence, ENS 4vSW [ENS CMB]. Compared to others in ENS CMB, his licence had a high halibut catch history associated with it. When Mr. Munroe opted into Group X, that catch history was allocated by DFO to Group X for the purpose of its quota allocation. Mr. Munroe’s fishing through Group X had the effect of transferring approximately 4.5% of ENS CMB’s catch history to Group X.
[11] In 2019, Mr. Veinot also joined Group X. The record indicates that the catch history associated with his licence is very small. Mr. Veinot and Mr. Munroe were the only two members of that group.
[12] In October 2018, concerns were raised by the ENS CMB representative at a meeting of the Scotia-Fundy Fixed Gear Groundfish Advisory Committee [FGAC] about the ability of a single licence holder with a large catch history to cause the reallocation of a significant portion of quota to Group X. The FGAC is an advisory committee established by DFO to make recommendations to DFO about various issues relating to fixed gear groundfish management. The FGAC is composed of representatives from DFO, each CMB, provincial government representatives, and Indigenous representatives. The allocation formula for Group X was discussed at FGAC meetings held in March 2019 and May 2019.
[13] At an October 24, 2019 meeting the Chair, Ms. Penny Doherty, DFO, noted the recommendation of a FGAC working group that 5% of a licence holder’s catch history for each stock be used as a limit when calculating Group X quota, however, that DFO senior management felt that the 5% was arbitrary and lacked justification. Ms. Doherty made an alternate proposal, a Group X quota cap using the average catch per licence for each stock. This was revisited at a November 14, 2019 meeting where the FGAC recommended that the average catch per licence (in 1986-1993, the reference period), per CMB for each stock, prorated to the annual quota, be utilized as a cap when calculating Group X’s quota.
[14] On November 26, 2019, Ms. Doherty advised Group X, being the Applicants, of FGAC’s recommendation. Ms. Doherty also invited the Applicants to make submissions about the potential change. Mr. Munroe’s lawyer provided a letter opposing the changes on December 10, 2019.
[15] On January 24, 2020, the Director, Regional Resource Management, DFO, recommended that the Regional Director of Fisheries Management approve the described change to the Group X quota calculation. The recommendation and considerations were set out in a “Memorandum For the Regional Director, Change to Group X Quota Calculation (For Decision)” [Memorandum]. The Regional Director concurred with the recommendation.
[16] On January 30, 2020, Ms. Doherty communicated this change by email to the Applicants who were, at that time, the sole members of Group X.
[17] Mr. Munroe filed his Notice of Application in matter T-271-20 on February 21, 2020, and Mr. Veinot filed his Notice of Application in matter T-339-20 on March 4, 2020, both challenging the January 30, 2020 letter from Ms. Doherty. By order dated August 28, 2020, the matters were, pursuant to Rule 105(a) of the Federal Courts Rules, SOR/98-106, consolidated and they have proceeded together under T-271-20.
Legislative Scheme
Department of Fisheries and Oceans Act, RSC 1985, c F-15
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
(a) sea coast and inland fisheries;
(b) fishing and recreational harbours;
(c) hydrography and marine sciences; and
(d) the coordination of the policies and programs of the Government of Canada respecting oceans.
Fisheries Act, RSC 1985, c F-14 [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.
43 (1) The Governor in Council may make regulations for carrying out the purposes and provisions of this Act and in particular, but without restricting the generality of the foregoing, may make regulations
(a) respecting the proper management and control of the seacoast and inland fisheries, including for social, economic or cultural purposes;
….
(c) respecting the catching, loading, landing, handling, transporting, possession and disposal of fish;
(d) respecting the operation of fishing vessels;
…..
(f) respecting the issuance, suspension and cancellation of licences and leases, including….
(g) respecting the terms and conditions under which a licence and lease may be issued;
(g.01) respecting the use and control of the rights and privileges under a lease or licence issued under this Act, including the prohibition on the transfer of the use and control of those rights and privileges except under prescribed conditions;
….
(l) prescribing the powers and duties of persons engaged or employed in the administration or enforcement of this Act and providing for the carrying out of those powers and duties;
(m) if a close time, fishing quota or limit on the size or weight of fish or fishing gear or equipment has been fixed in respect of an area under the regulations, authorizing persons referred to in paragraph (l) to vary the close time, fishing quota or limit or fishing gear or equipment in respect of that area or any portion of that area;
….
(p) prescribing anything that is required or authorized by this Act to be prescribed.
(2) The Governor in Council may make regulations establishing conditions for the exercise of the Minister’s power to make regulations under subsection (3).
Fishery (General) Regulations, SOR/93-53
22 (1) For the proper management and control of fisheries and the conservation and protection of fish, the Minister may specify in a licence any condition that is not inconsistent with these Regulations or any of the Regulations listed in subsection 3(4) and in particular, but not restricting the generality of the foregoing, may specify conditions respecting any of the following matters:
(a) the species of fish and quantities thereof that are permitted to be taken or transported;
….
(c) the waters in which fishing is permitted to be carried out;
Operational Guidelines for Community Management Scotia-Fundy Fixed Gear Less than 45’ Sector Maritimes Region
[18] Although they do not say so, the Operational Guidelines are presumably made pursuant to the Minister of Fisheries and Ocean’s power to manage fisheries as set out in s 4(1) of the Department of Fisheries and Oceans Act, RSC 1985, c F-15.
[19] The Operational Guidelines are not law. The Respondent’s evidence is that although changes have been made to the policies in the Operational Guidelines, the Guidelines themselves have not been updated since they were issued in 1998.
[20] The sections most relevant to these matters are:
Community Management Conservation Harvesting Plans
Authority
The common policies and principles of community management are primarily established through the SF Fixed Gear Committee making recommendations to DFO for implementation. Under the current Acts and Regulation, no power or authority is delegated to the different community boards, as the legislative authority rests with the Minister. Under the current system, the management boards submit their specific fishing plans, which are then approved and implemented by DFO provided they do not conflict with existing legislation and fulfill conservation requirements. A fleet CHP for all FG<45’ is developed and all management boards must adhere to this Plan. In addition to this generic CHP, the FG<45’ Community CHP can contains [sic] additional management measures such as seasonal quotas, trip limits, and sanctions that not enforced by DFO. Most groups also require members to sign waivers that authorizes DFO to send the weekly catch report by individual licence holders to the indicated management board fore review. This allows management boards to ensure that participants in their groups respect the management measures set out in their plan.
DFO assigns the quotas to the approved geographic community management groups based on the support and recommendations of the FG<45’Committee. Any sub-allocations and seasonal quotas are implemented based on the recommendations of a specific management board through a community CHP. The management boards are then required to monitor the quota available to any specific groups within their community….
…
Movement of Licence Holders Between Communities
Although each licence is designated for quota and management purposes as being registered in one of the seven geographic communities this does not affect the present policy of re-issuing a licence to another individual at the request of the original licence holder. Each licence holder however, should be aware of the quota or fishing implications. The community designation is based on the registration of the home port of the licence holder according to DFO records of December 31, 1996. As such, any individual that had a groundfish licence re-issued to them, is subject to the initial community plan where this licence is registered unless a community change can be negotiated between the different community management boards.
The policies adopted by the FG<45’ Committee do allow for licence holders to change from one geographic community designation to another provided the two boards involved are in agreement. The movement of a licence involves one community either gaining or losing a licence and this has both quota and effort implications. Currently the two management boards have to support the change in community designation as well approve the amount of quota that is to be transferred and advise DFO. The different management boards do not have to adhere to any specific quota formula, but to date when licence holders have changed communities, the home port community has only agreed to transfer quota in an amount equal to or less than the percentage share attributed to that licence without any share of the quota percentage defined as unidentified. If there is no agreement, the new licence holder will then have to choose to fish under the plan of the original board or choose to remain in Group X.
Community Designation and Access to Stock Areas
…
The Community designation and area that the licence is eligible to fish will be permanently attached to the GRO [groundfish licence number] and will not change upon any transfer to another individual. Following a licence transfer, a new licence holder will be bound by community and fishing area designation unless the community management boards involved agree to an amendment.
MANAGEMENT BOARDS
Terms of reference and an operating process to be developed by the FG<45’ Committee, with the aim of establishing a transparent process that provides the Minister the assurance that a particular management board clearly represents the licence holders in a specific area and that the views recommended by the management board clearly represent the majority position within a community.
T-271-20
Decision Under Review
[21] The January 30, 2020 email from Ms. Doherty states as follows:
From: Doherty, Penny …..
Sent: January 30, 2020 4:08 PM
Hi Group X,
This email is to inform you that DFO will be implementing a maximum catch limit for Group X as of 2020/21. Currently, the catch limit in Group X is the sum of the 1986-93 catch history (1997-2006 for 4X5 Atlantic halibut) on a percentage basis, of the licence holders who choose to opt into Group X. Moving forward as of 2020/21, the average catch of each stock per licence holder based on catch history and updated for the annual quota will be used as a maximum catch limit per licence holder that is added to the quota allocation to be fished competitively in Group X. Shelburne Board will be exempt from this approach. The yellow highlighted columns in the attached document indicate the maximum catch limit per stock per licence holder (based on 2019/20 quota) that would be added to the overall Group X catch limit, depending on which Management Board the licence is associated with. Note that the catch limit for 4X5 Atlantic halibut applies to all licence holders with 4X5 halibut catch history regardless of Management Board. For example, the catch limit per licence holder (2019/20) to be added to Group X to be fished competitively would be a maximum of 0.27 t – 1.36 t of halibut.
Please refer to the attached document for examples of how the catch limit will be applied. If you have any questions, please don’t hesitate to contact me.
Cheers, Penny
Penny Doherty
Senior Advisor / Fisheries Management
Fisheries and Oceans Canada/Government of Canada
[22] I note that it is apparent from the content of the Certified Tribunal Record [CTR] that the decision to change the Group X quota allocation was made by the Regional Director on January 24, 2020. However, as the Applicants explained, they did not receive the Memorandum until the CTR was filed after, and in response to, their applications for judicial review.
[23] In effect, the Regional Director’s decision was summarized and communicated to them by way of the January 30, 2020 email from Ms. Doherty.
Issues
[24] In my view, the issues as identified by the parties can be reframed as follows:
Is the decision legislative/policy in nature or is it administrative?
If it is a policy decision, was it: based on irrelevant or erroneous considerations, arbitrary, or made in bad faith and therefore unreasonable?
If it is an administrative decision, is it reasonable?
Issue 1: Is the decision legislative/policy in nature or is it administrative?
Applicants’ submissions
[25] The Applicants submit that what lies at the core of whether a decision is considered legislative or administrative is to whom it applies. Legislative decisions are of general application and are not related to a particular case or based on facts pertaining to specific individuals. In that regard, when characterizing a decision as legislative or administrative in nature, substance supersedes form (citing Homex Realty & Development Co v Wyoming (Village), [1980] 2 SCR 1011). The Applicants submit that in this matter, the decision under review is administrative because it had specific application to, and targeted, the Applicants. More specifically, the decision targeted Mr. Munroe, his licence and its associated catch history. The Applicants submit that the decision would not have been made had Mr. Munroe not joined Group X and it is entirely based on a particular case and individual. There was no related policy amendment to the Operational Guidelines. Rather, DFO made an administrative decision, contained in an email, because other fishers were unhappy with the quota reallocation resulting from Mr. Munroe deciding to join Group X.
[26] The Applicants submit that administrative decisions, such as this one, are subject to reasonableness review (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov]). In the alternative, if the decision is considered a legislative or policy decision, then it is to be reviewed to determine if it was made in bad faith, contrary to the principles of natural justice, as arbitrary, or for purposes irrelevant to the enabling statute (citing Comeau’s Sea Foods Ltd v Canada (Minister of Fisheries and Oceans), [1997] 1 SCR 12 at para 36 [Comeau]; Maloney v Shubenacadie Indian Band, 2014 FC 129 at para 57; and, Maple Lodge Farms Ltd v Canada, [1982] 2 SCR 2 at para 7 [Maple Lodge]).
Respondent’s submissions
[27] The Respondent submits that the decision to limit the quota allocation for Group X is a policy decision. It submits that the Federal Court of Appeal has repeatedly found that decisions regarding quota allocations and the management of the fisheries are discretionary policy matters and not administrative decisions (citing Carpenter Fishing v. Canada, [1998] 2 FC 548 [Carpenter]; Malcolm v Canada (Fisheries and Oceans), 2014 FCA 130 at para 34 [Malcolm]; Mainville v Canada (Attorney General), 2009 FCA 196 at para 5 [Mainville]; Arsenault v Canada, 2009 FCA 300 at para 41-42). Further, the decision affects anyone who chooses to fish, not only the Applicants. While the Operational Guidelines were changed as a result of the Applicants fishing in Group X, the change was not put in place to specifically target the Applicants. The Operational Guidelines were changed to address an unintended result in their application. The fact that the change affects the Applicants does not alter the nature or type of decision that was made.
[28] The Respondent submits that policy decisions can only be judicially reviewed on limited grounds: bad faith, non-conformity with the principles of natural justice and reliance on considerations that are extraneous or irrelevant to the statutory purpose (citing Carpenter at para 34; Maple Lodge at para 7). And, while the legality of a policy can be judicially challenged, its wisdom or soundness cannot (citing Fortune Dairy Products Limited v Canada (Attorney General), 2020 FC 540 at paras 105-106 [Fortune Dairy]; Moresby Explorers Ltd v Canada (Attorney General), 2007 FCA 273 at para 24 [Moresby]). Within that limited scope of review, discretionary policy decisions are reviewable on the reasonableness standard (Vavilov).
Analysis
[29] The decision under review is concerned with a change to the quota allocation for Group X. In my view, the jurisprudence is clear that decisions concerning fisheries quota allocations are in the nature of policy decisions.
[30] Fishing quota policies are not law. They are not binding or legally enforceable (Campbell at paras 18 – 22). And, as stated by the Federal Court of Appeal in Carpenter at para 28 “The imposition of a quota policy (as opposed to the granting of a specific licence) is a discretionary decision in the nature of policy or legislative action. Policy guidelines outlining the general requirements for the granting of licences are not regulations; nor do they have the force of law”.
[31] In Malcolm the Federal Court of Appeal held that the Minister of Fisheries had wide discretion to reallocate portions of TAC between various fishery sectors and:
[32] The limited individual quota system put in place in the early 1990’s as a result of the new ITQ system introduced at that time was challenged in the Federal courts, leading to the decision of our Court in Carpenter Fishing. In upholding that system as a valid policy decision of the Minister, and relying on Maple Lodge Farms, Décary J.A. noted in that case that the imposition of an individual quota system is a discretionary ministerial decision in the nature of a policy or legislative action that may only be disturbed on judicial review if it can be established that the decision was made in bad faith, did not conform with the principles of natural justice, or if reliance was placed upon considerations that are irrelevant or extraneous to the legislative purpose: Carpenter Fishing at paras. 28 and 37.
[33] That approach to the judicial review of fisheries management decisions had been previously adopted by the Supreme Court of Canada in Comeau’s Sea Foods Ltd. v. Canada (Minister of Fisheries and Oceans), [1997] 1 S.C.R. 12 (Comeau’s Sea Foods) at para. 36. It has also been affirmed by our Court post-Dunsmuir: Mainville v. Canada (Attorney General), 2009 FCA 196, 398 N.R. 249 at para. 5; and Arsenault at paras. 38 to 42.
[34] The decision of the Minister in this case is discretionary and in the nature of a policy action……
[32] The Applicants do not challenge this jurisprudence but submit that their situation is different because the decision to change the method of calculating the Group X quota targeted them. They submit that the decision was made because Mr. Munroe – the holder of a licence with a high catch history – opted into Group X.
[33] The Respondent acknowledges that the decision to make a policy change was a result of Mr. Munroe opting to fish in Group X. The Respondent filed the affidavit of Penny Doherty, affirmed on August 6, 2020 [Doherty Affidavit]. This describes Mr. Munroe’s entry into Group X and states that in 2018 the ENS CMB was allocated 517.5t of Atlantic halibut quota and, when Mr. Munroe joined Group X, this meant that 23.3t of this quota was reallocated to Group X. In 2019, 27t of Atlantic halibut quota was similarly reallocated to Group X. Ms. Doherty states that these reallocations occurred because of “an unanticipated loophole in the quota allocation calculation policy at that time” and that:
23. The Applicant’s decision to join Group X in 2018 and 2019 had a significant negative impact on licence holders in the ENS 4VsW Board by reducing the group’s collective competitive Atlantic halibut quota allocation by approximately five per cent. The ENS 4VsW Board’s Atlantic halibut quota was reduced to 518 t for 160 licence holders in 2018 and 601 t for 155 licence holders in 2019. It should be noted that each licence holder has an opportunity to fish a number of different groundfish stocks; however, Atlantic halibut is the most economically viable species to fish for the FG<45’ fleet.
24. Group X was created for FG<45’ fleet licence holders to fish outside the community management system. It was not DFO’s intent that large amounts of quota would be reallocated from a Board’s quota because of a licence holder’s decision to join Group X. DFO was very concerned with the fact that if any licence holder with a large catch history associated with his licence joined Group X, a large quota reallocation would result because of the way the quota calculations were conducted at that time. A large reallocation of quota to Group X destabilizes DFO’s objectives in managing the fishery.
[34] Thus, it is clear that the catalyst for the policy change to the Group X quota allocation calculation was Mr. Munroe joining Group X.
[35] However, I am not convinced that because the policy change arose as a result of the circumstance of Mr. Munroe, as the holder of a high catch history licence, joining Group X, that this changes the decision from policy or legislative in nature to administrative.
[36] In Barry Group v Canada, 2017 FC 1144 [Barry Group], Justice Southcott held that a decision to close the 2016 Atlantic mackerel fishery was legislative, not administrative in nature. There the applicants argued that the decision was administrative in nature because, of all of the participants in the commercial Atlantic mackerel fishery, they alone were affected by the closure. Thus, that decision was made in reference to a particular case and should be characterized as administrative (para 22). Following a review of the jurisprudence, Justice Southcott held “…the fact that a variation order of general application has a particular effect upon a particular participant or set of participants in the fishery, or affects some participants more than others, does not in itself change the nature of that decision such that it can be characterized as an administrative act” (Barry Group at para 28).
[37] I agree with that view. In this case, the Regional Director, on the advice of the Director, Regional Resource Management, agreed to change the method for calculating the quota for Group X. While this change does impact the Applicants, it applies generally and uniformly to any licence holder who decides to fish in Group X and applies to all stocks that can be harvested by those licence holders. It does not apply specifically to the licences held by Mr. Munroe or Mr. Veinot. Rather, it creates and promulgates “a general rule of conduct without reference to a particular case” (R. v Corcoran, 181 Nfld & PEIR 341 at paras 12-15, 20-21; Gulf Trollers Assn v Canada (Minister of Fisheries and Oceans) [1987] 2 FC 93 (FCA) at p 743-44).
[38] Having found the decision to be a policy one, this leads to the question of the permissible scope of judicial review of a policy decision. Again, in my view, the law is clear on this issue.
[39] I have previously addressed this in Elson v Canada (Attorney General), 2017 FC 459 [Elson] (afff’d 2019 FCA 27):
[50] In Carpenter Fishing, this Court found that the imposition of a quota policy, as opposed to the granting of a specific licence, is a discretionary decision in the nature of policy or legislative action. And, so long as the Minster does not fetter his discretion by treating the guidelines as binding upon him, he may validly and properly indicate the kind of considerations by which he will be guided as a general rule when allocating quotas. These discretionary policy guidelines are not subject to judicial review, save for the (Maple Lodge Farms Ltd v Canada, 1982 CanLII 24 (SCC), [1982] 2 SCR 2 (“Maple Lodge Farms”)) exceptions: bad faith, non-conformity with the principles of natural justice where their application is required by statute, and reliance placed upon considerations that are irrelevant and extraneous to the statutory purpose (at para 28). When addressing irrelevant purposes, the Court stated that permissible purposes for actions under the Fisheries Act are interpreted in a particularly broad way, citing Gulf Trollers at p 106, Comeau’s Sea Foods at pp 25-26 and s 4(1) of the Department of Fisheries and Oceans Act, and concluded:
37 It follows that when examining the exercise by the Minister of his powers, duties, functions and discretion in relation to the establishment and implementation of a fishing quota policy, courts should recognize, and give effect to, the avowed intent of Parliament and of the Governor in Council to confer to the Minister the widest possible freedom to manoeuvre. It is only when actions of the Minister otherwise authorized by the Fisheries Act are clearly beyond the broad purposes permitted under the Act that the Courts should intervene.
(emphasis added)
(See also; Anglehart v Canada, 2018 FCA 115 at paras 47-48 [Anglehart]; Campbell at para 21; Carpenter at para 28; Barry Group at para 30.)
[40] Malcolm (at paras 32-33) and the above jurisprudence make it clear that discretionary policies, such as quota allocations, are subject to judicial review only on the grounds of bad faith, non-conformity with the principles of natural justice where their application is required by statute, and reliance placed upon considerations that are irrelevant and extraneous to the statutory purpose.
[41] In Malcolm the Federal Court of Appeal held that this limited scope of review is subject to the reasonableness standard of review:
[34] The decision of the Minister in this case is discretionary and in the nature of a policy action. As a ministerial policy decision made under the Fisheries Act, it is amenable to judicial review under a standard of reasonableness discussed in Dunsmuir. The issue here is what does the standard of reasonableness require in these circumstances?
[35] A discretionary policy decision that is made in bad faith or for considerations that are irrelevant or extraneous to the legislative purpose is unreasonable by that very fact. Such a decision can also be unreasonable if it is found to be irrational, incomprehensible or otherwise the result of an abuse of discretion. The ultimate question in judicially reviewing the Minister’s decision in this case is to determine whether the decision falls within a range of reasonable outcomes having regard for both the context in which the decision was made and the fact that the decision itself involves policy matters in which a reviewing court should not interfere by substituting its own opinion to that of the Minister’s. It is with these considerations in mind that the reasonableness of the Minister’s decision should be determined.
[42] Similarly, in Barry Group, Justice Southcott noted that:
[30] The parties agree that the applicable standard of review is reasonableness and that, in the context of decisions of a legislative nature, this standard requires consideration of whether the decision has been made in bad faith, without adherence to statutorily mandated natural justice, or based on factors irrelevant or extraneous to the statutory purpose (see Maple Lodge Farms v Canada, 1982 CanLII 24 (SCC), [1982] 2 SCR 2). I concur with this articulation of the standard to be applied by the Court in the present case.
[43] Malcolm predates the Supreme Court of Canada’s decision in Vavilov. However, Vavilov does not address, and therefore does not alter, the scope of review of policy decisions. It does, however, direct how the reasonableness standard is to be applied, thereby impacting the latter part of paragraph 35 of Malcolm.
[44] The Supreme Court in Vavilov addressed what is required of a court when performing a reasonableness review (Vavilov at paras 73 to 142). It is not the role of a reviewing court, when applying the reasonableness standard, to “ask what decision it would have made in place of that of the administrative decision maker, attempt to ascertain the ‘range’ of possible conclusions that would have been open to the decision maker, conduct a de novo analysis or seek to determine the ‘correct’ solution to the problem” (para 85). The reviewing court asks “whether the decision bears the hallmarks of reasonableness – justification, transparency and intelligibility – and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision” (Vavilov at para 99). Further, a reasonable decision is based on an internally coherent and rational chain of analysis and is justified in relation to the facts and the law that constrain the decision maker. The reasonableness standard requires that the reviewing court defer to such a decision (Vavilov at para 85).
[45] Thus, in my view, the current state of the law with respect to the standard of review for policy decisions is reflected in Fortune Dairy where Justice Kane held:
[105] The jurisprudence establishes that a policy decision is owed a high degree of deference and will only be found unreasonable if made in bad faith, for considerations extraneous to the legislative purpose, or if it is irrational, incomprehensible or an abuse of discretion, (Malcolm at para 35). In Vavilov, the Supreme Court of Canada described a reasonable decision as one that is both internally coherent and justified in light of the legal and factual constraints, including the legislative scheme and purpose (at para 85).
[46] In sum, the decision to change the Group X quota allocation was a policy decision. As such, the scope or grounds for judicial review are limited to consideration of whether the decision has been made in bad faith, without adherence to statutorily mandated natural justice, or based on factors irrelevant or extraneous to the statutory purpose. And, that limited review is to be conducted on the reasonableness standard.
Issue 2: If it is a policy decision, was it based on irrelevant or erroneous considerations, arbitrary, or made in bad faith and therefore unreasonable?
Applicants’ submissions
[47] The Applicants submit that the decision was arbitrary in process because it was made without reasonable objective justification and that it was arbitrary in outcome because it achieved the opposite result of what DFO claims it was intended to do. The Applicants submit that the decision was made in response to concerns from the FGAC that Mr. Munroe’s fishing in Group X, and the consequent reallocation of quota, resulted in unfairness to other fishers. However, there was no unfairness because members of ENS CMB did not fish the quota available to them in the two relevant fishing seasons. Therefore, the FGAC’s complaints had no objective basis. The Applicants submit that because DFO failed to consider this information its decision is not objectively justifiable, nor did it consider the impact of making Group X economically unviable. DFO followed an arbitrary process that effectively eliminated the Applicants’ ability to fish through Group X.
[48] The Applicants also submit that the outcome of the decision was arbitrary because the change in calculation did not lead to more equitable distribution of economic benefits. While the halibut quota for Group X was drastically slashed and the Applicants’ livelihood limited, there were no gains to any other community group or fisher.
[49] The Applicants assert that the decision was based on irrelevant or extraneous considerations. During DFO’s discussions with the FGAC, it was repeatedly raised that changing the Group X quota allocation should act as a deterrent to fishing outside a CMB. This was an irrelevant and extraneous consideration. Group X was never meant to function as a deterrent, the Operational Guidelines and DFO’s evidence make it clear that Group X exists for any fisher who is unable or unwilling to join a CMB. The Applicants also submit that FGAC’s statements that Mr. Munroe fishing in Group X had a negative impact on the ENS CMB are irrelevant as they are not founded in fact.
[50] Finally, the Applicants submit that the decision was made in bad faith. The Applicants note that DFO informed them that the purpose of the change was to ensure the more equitable distribution of economic benefits. However, the actual purpose was to make fishing through Group X a deterrent and to force the Applicants to either fish through a CMB or give up fishing. The Applicants submit that these purposes are improper and that DFO was aware when it made the decision that the Applicants were unable or unwilling to join a CMB. The Applicants submit that a good faith decision would have ensured that the Applicants could make a living through fishing.
Respondent’s submissions
[51] The Respondent submits that the exercise of the Minister’s discretion is limited only by the requirements of natural justice. That is, the decision must be based on relevant considerations, not be arbitrary, and the decision must be made in good faith. Per Malcolm, a discretionary decision made in ba