Anglehart v. Canada

Anglehart v. Canada
Court (s) Database
Federal Court of Appeal Decisions
Date
2018-06-13
Neutral citation
2018 FCA 115
File numbers
A-421-16
Notes
A correction was made on May 8, 2019.
Reported Decision
Decision Content
Date: 20180613
Docket: A-421-16
Citation: 2018 FCA 115
[ENGLISH TRANSLATION]
CORAM:
PELLETIER J.A.
BOIVIN J.A.
DE MONTIGNY J.A.
BETWEEN:
ROLAND ANGLEHART JR. (LES PÊCHERIES JUNIOR INC.), HÉLIODORE AUCOIN (PÊCHERIES H.J.E.S INC. AND 9029-9413 QUÉBEC INC.), ALBERT BENOÎT (LES PÊCHERIES MACK LTÉE), ROBERT BOUCHER (LES ENTREPRISES BOUCHER LTÉE), ÉLIDE BULGER (LES PÊCHERIES TURMEL B. LTÉE), 100186 PEI INC., O.M.D.M. FISHERIES LTD., JEAN-GILLES CHIASSON (P.H. LAMIS LTÉE), LUDGER CHIASSON (PÊCHERIES MARIO C. LTÉE), MARTIN M. CHIASSON (PÊCHERIES JACQUES MARC LTÉE), RÉMI CHIASSON (LE CHALUTIER C.R.R. LTÉE), 2973-0819 QUÉBEC INC., 2973-1288 QUÉBEC INC., 3087-5199 QUÉBEC INC. (PÊCHERIES DOUGLAS MCINNIS INC.), ROBERT COLLIN (3181308 CANADA INC.), ROMÉO G. CORMIER (LES PÊCHERIES RICKY-TIMMY #1 LTÉE), MARC COUTURE (PÊCHERIES MARC COUTURE INC.), LES CRUSTACÉS DE GASPÉ LTÉE, LINO DESBOIS (9137-5998 QUÉBEC INC.), RANDY DEVEAU (R & R DEVEAU FISHERIES LTD.), CAROL DUGUAY (NAVIGATION DUNAMIS INC.), CHARLES-AIMÉ DUGUAY (9005-3711 QUÉBEC INC.), DENIS DUGUAY (PÊCHERIES DENIS DUGUAY INC.), DONALD DUGUAY (GESTION DONALD DUGUAY LTÉE (FORMERLY PÊCHERIES THOMAS DUGUAY LTÉE)), MARIUS DUGUAY (LE JUSMULAC LTÉE), EDGAR FERRON (PÊCHERIES L.E.F. LTÉE), LIVAIN FOULEM (PÊCHERIES LADY CÉLINE INC.), KENNETH GAUDET (CAT IV FISHERIES LTD.), CLAUDE GIONEST (PÊCHERIES CLAUDE GIONEST INC.), JOCELYN GIONET (PÊCHERIES ALLAIN G. LTÉE), SIMON J. GIONET (PÊCHERIES CARLO G. LTÉE), AURÈLE GODIN (PÊCHERIES LADY GODIN LTÉE), VALOIS GOUPIL (LES PÊCHERIES VALOIS LTÉE), AURÉLIEN HACHÉ (PÊCHERIES AURÉLIEN HACHÉ LTÉE), DONALD R. HACHÉ (PÊCHERIES LADY CLAUDINE LTÉE), GAËTAN HACHÉ (PÊCHERIES GAËTAN H. LTÉE), GUY HACHÉ (PÊCHERIES AURÈLE GUY INC.), JACQUES E. HACHÉ (050469 N.B. LTÉE),
JASON-SYLVAIN HACHÉ (PÊCHERIES JASON LTÉE), RENÉ HACHÉ (PÊCHERIES SERGE RENÉ LTÉE), RHÉAL HACHÉ (R.M.L. PÊCHE LTÉE), ROBERT F. HACHÉ (PÊCHERIES M.J.S. LTÉE), ALBAN HAUTCOEUR (PÊCHERIES ALBAN HAUTCOEUR INC. AND 3181324 CANADA INC.), FERNAND HAUTCOEUR (PÊCHERIES FERNAND HAUTCOEUR INC.), JEAN-CLAUDE HAUTCOEUR (PÊCHERIES JEAN-CLAUDE HAUTCOEUR INC.), JEAN-PIERRE HUARD (PÊCHERIES JEAN-PIERRE HUARD INC.), MARTIAL LEBLANC, RÉJEAN LEBLANC (PÊCHERIES M.R.G. LEBLANC INC.), CHRISTIAN LELIÈVRE (3181383 CANADA INC. AND PÊCHERIES RUDY L. INC.), ELPHÈGE LELIÈVRE (GESTION ELPHÈGE LELIÈVRE INC. AND PÊCHERIES ELPHÈGE LELIÈVRE INC.), JEAN-ÉLIE LELIÈVRE (PÊCHERIES J.E. LELIÈVRE INC.), JULES LELIÈVRE (PÊCHERIES JULES LELIÈVRE INC.), DASSISE MALLET (INVESTISSEMENTS DASSISE MALLET INC.), DELPHIS MALLET (LES PÊCHERIES DELMA LTÉE), SUCCESSION OF FRANCIS MALLET (PÊCHERIES M. E. LTÉE), KEVIN MALLET (PÊCHERIES KEVIN M. LTÉE), RHÉAL MALLET (PÊCHERIES K.L.M. INC.), JEAN-MARC MARCOUX (LES PÊCHERIES J.M. MARCOUX INC.), ANDRÉ MAZEROLLE (ANDRÉ M. LTÉE), EDDY MAZEROLLE (EDDY M. LTÉE), ALPHÉ NOËL (PÊCHERIES NICOLE-RÉMI LTÉE), GILLES A. NOËL (PÊCHERIES EMI-LOUIS V. LTÉE), LÉVIS NOËL (PÊCHERIES LÉVI NOËL LTÉE), MARTIN NOËL (LE ROITELET LTÉE AND MARTIN N. LTÉE), NICOLAS NOËL (JULIE PATRICK LTÉE), ONÉSIME NOËL (PÊCHERIES REJEAN N. LTÉE), RAYMOND NOËL (CHALUTIER RÉGINE DIANE LTÉE), FRANCIS PARISÉ (PÊCHERIES FRANCIS PARISÉ INC.), DOMITIEN PAULIN (PÊCHERIES PAULIN LTÉE), SYLVAIN PAULIN (LES ENTREPRISES HARRY FRYE LTÉE), PÊCHERIES DENISE QUINN SYVRAIS INC. (3181235 CANADA INC.), PÊCHERIES FRANÇOIS INC., PÊCHERIES JEAN-YAN II INC., PÊCHERIES JIMMY L. LTÉE, PÊCHERIES J.V.L. LTÉE, LES PÊCHERIES SERGE-LUC INC., ROGER PINEL (PÊCHERIES ROGER PINEL INC.), CLAUDE POIRIER (PÊCHERIES FACEP INC.),
HENRI-FRED POIRIER (H.F. POIRIER INC. AND LES INVESTISSEMENTS H.F. POIRIER INC.), PRODUITS BELLE BAIE LTÉE, ANDRÉ ROBICHAUD (PÊCHERIES PHILIPPE-PIERRE LTÉE), ADRIEN ROUSSEL (PÊCHERIES A.A.R. LTÉE), JEAN-CAMILLE ROUSSEL (LES PÊCHERIES D.C.R. LTÉE), MATHIAS ROUSSEL (PÊCHERIES B.M.R. LTÉE), STEVEN ROUSSY (PÊCHERIES ROLAND ROUSSY INC.), MARIO SAVOIE (PÊCHERIES MAXINE LTÉE), SUCCESSION OF ALAIN GIONET (PÊCHERIES ROGER L. LTÉE), SUCCESSION OF BERNARD ARSENEAULT, SUCCESSION OF JEAN-PIERRE ROBICHAUD (PÊCHERIES ALMA ROBICHAUD LTÉE), SUCCESSION OF LUCIEN CHIASSON, JEAN-MARC SWEENEY (PÊCHERIES J.M. SWEENEY INC.), MICHEL TURBIDE, RHÉAL TURBIDE (3181243 CANADA INC.), DONAT VIENNEAU
(LES PÊCHERIES M.B. LTÉE), FERNAND VIENNEAU (LES PÊCHERIES F.L.G. LTÉE), LIVAIN VIENNEAU (PÊCHERIES GHYSLAIN V. INC. AND PÊCHERIES GHYSLAIN V. LTÉE),
RHÉAL VIENNEAU (PÊCHERIES L.G. LTÉE)
Appellants
and
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
Respondent
Heard at Fredericton, New Brunswick, on February 28, March 1 and 2, 2018.
Judgment delivered at Ottawa, Ontario, on June 13, 2018.
REASONS FOR JUDGMENT BY:
BOIVIN J.A.
CONCURRED IN BY:
PELLETIER J.A.
DE MONTIGNY J.A.
Date: 20180613
Docket: A-421-16
Citation: 2018 FCA 115
CORAM:
PELLETIER J.A.
BOIVIN J.A.
DE MONTIGNY J.A.
BETWEEN:
ROLAND ANGLEHART JR. (LES PÊCHERIES JUNIOR INC.), HÉLIODORE AUCOIN (PÊCHERIES H.J.E.S INC. AND 9029-9413 QUÉBEC INC.), ALBERT BENOÎT (LES PÊCHERIES MACK LTÉE), ROBERT BOUCHER (LES ENTREPRISES BOUCHER LTÉE), ÉLIDE BULGER (LES PÊCHERIES TURMEL B. LTÉE), 100186 PEI INC., O.M.D.M. FISHERIES LTD., JEAN-GILLES CHIASSON (P.H. LAMIS LTÉE), LUDGER CHIASSON (PÊCHERIES MARIO C. LTÉE), MARTIN M. CHIASSON (PÊCHERIES JACQUES LTÉE), RÉMI CHIASSON (LE CHALUTIER C.R.R. LTÉE), CIE 2973-0819 QUÉBEC INC., 2973-1288 QUÉBEC INC., 3087-5199 QUÉBEC INC. (PÊCHERIES DOUGLAS MCINNIS INC.), ROBERT COLLIN (3181308 CANADA INC.), ROMÉO G. CORMIER (LES PÊCHERIES RICKY-TIMMY #1 LTÉE), MARC COUTURE (PÊCHERIES MARC COUTURE INC.), LES CRUSTACÉS DE GASPÉ LTÉE, LINO DESBOIS (9137-5998 QUÉBEC INC.), RANDY DEVEAU (R & R DEVEAU FISHERIES LTD.), CAROL DUGUAY (NAVIGATION DUNAMIS INC.), CHARLES-AIMÉ DUGUAY (9005-3711 QUÉBEC INC.), DENIS DUGUAY (PÊCHERIES DENIS DUGUAY INC.), DONALD DUGUAY (GESTION DONALD DUGUAY LTÉE (FORMERLY PÊCHERIES THOMAS DUGUAY LTÉE)), MARIUS DUGUAY (LE JUSMULAC LTÉE), EDGAR FERRON (PÊCHERIES L.E.F. LTÉE), LIVAIN FOULEM (PÊCHERIES LADY CÉLINE INC.), KENNETH GAUDET (CAT IV FISHERIES LTD.), CLAUDE GIONEST (PÊCHERIES CLAUDE GIONEST INC.), JOCELYN GIONET (PÊCHERIES ALLAIN G. LTÉE), SIMON J. GIONET (PÊCHERIES CARLO G. LTÉE), AURÈLE GODIN (PÊCHERIES LADY GODIN LTÉE), VALOIS GOUPIL (LES PÊCHERIES VALOIS LTÉE), AURÉLIEN HACHÉ (PÊCHERIES AURÉLIEN HACHÉ LTÉE), DONALD R. HACHÉ (PÊCHERIES LADY CLAUDINE LTÉE), GAËTAN HACHÉ (PÊCHERIES GAËTAN H. LTÉE), GUY HACHÉ (PÊCHERIES AURÈLE GUY INC.), JACQUES E. HACHÉ (050469 N.B. LTÉE),
JASON-SYLVAIN HACHÉ (PÊCHERIES JASON LTÉE), RENÉ HACHÉ (PÊCHERIES SERGE RENÉ LTÉE), RHÉAL HACHÉ (R.M.L. PÊCHE LTÉE), ROBERT F. HACHÉ (PÊCHERIES M.J.S. LTÉE), ALBAN HAUTCOEUR (PÊCHERIES ALBAN HAUTCOEUR INC. AND 3181324 CANADA INC.), FERNAND HAUTCOEUR (PÊCHERIES FERNAND HAUTCOEUR INC.), JEAN-CLAUDE HAUTCOEUR (PÊCHERIES JEAN-CLAUDE HAUTCOEUR INC.), JEAN-PIERRE HUARD (PÊCHERIES JEAN-PIERRE HUARD INC.), MARTIAL LEBLANC, RÉJEAN LEBLANC (PÊCHERIES M.R.G. LEBLANC INC.), CHRISTIAN LELIÈVRE (3181383 CANADA INC. AND PÊCHERIES RUDY L. INC.), ELPHÈGE LELIÈVRE (GESTION ELPHÈGE LELIÈVRE INC. AND PÊCHERIES ELPHÈGE LELIÈVRE INC.), JEAN-ÉLIE LELIÈVRE (PÊCHERIES J.E. LELIÈVRE INC.), JULES LELIÈVRE (PÊCHERIES JULES LELIÈVRE INC.), DASSISE MALLET (INVESTISSEMENTS DASSISE MALLET INC.), DELPHIS MALLET (LES PÊCHERIES DELMA LTÉE), SUCCESSION OF FRANCIS MALLET (PÊCHERIES M. E. LTÉE), KEVIN MALLET (PÊCHERIES KEVIN M. LTÉE), RHÉAL MALLET (PÊCHERIES K.L.M. INC.), JEAN-MARC MARCOUX (LES PÊCHERIES J.M. MARCOUX INC.), ANDRÉ MAZEROLLE (ANDRÉ M. LTÉE), EDDY MAZEROLLE (EDDY M. LTÉE), ALPHÉ NOËL (PÊCHERIES NICOLE-RÉMI LTÉE), GILLES A. NOËL (PÊCHERIES EMI-LOUIS V. LTÉE), LÉVIS NOËL (PÊCHERIES LÉVI NOËL LTÉE), MARTIN NOËL (LE ROITELET LTÉE AND MARTIN N. LTÉE), NICOLAS NOËL (JULIE PATRICK LTÉE), ONÉSIME NOËL (PÊCHERIES REJEAN N. LTÉE), RAYMOND NOËL (CHALUTIER RÉGINE DIANE LTÉE), FRANCIS PARISÉ (PÊCHERIES FRANCIS PARISÉ INC.), DOMITIEN PAULIN (PÊCHERIES PAULIN LTÉE), SYLVAIN PAULIN (LES ENTREPRISES HARRY FRYE LTÉE), PÊCHERIES DENISE QUINN SYVRAIS INC. (3181235 CANADA INC.), PÊCHERIES FRANÇOIS INC., PÊCHERIES JEAN-YAN II INC., PÊCHERIES JIMMY L. LTÉE, PÊCHERIES J.V.L. LTÉE, LES PÊCHERIES SERGE-LUC INC., ROGER PINEL (PÊCHERIES ROGER PINEL INC.), CLAUDE POIRIER (PÊCHERIES FACEP INC.),
HENRI-FRED POIRIER (H.F. POIRIER INC. AND LES INVESTISSEMENTS H.F. POIRIER INC.), PRODUITS BELLE BAIE LTÉE, ANDRÉ ROBICHAUD (PÊCHERIES PHILIPPE-PIERRE LTÉE), ADRIEN ROUSSEL (PÊCHERIES A.A.R. LTÉE), JEAN-CAMILLE ROUSSEL (LES PÊCHERIES D.C.R. LTÉE), MATHIAS ROUSSEL (PÊCHERIES B.M.R. LTÉE), STEVEN ROUSSY (PÊCHERIES ROLAND ROUSSY INC.), MARIO SAVOIE (PÊCHERIES MAXINE LTÉE), SUCCESSION OF ALAIN GIONET (PÊCHERIES ROGER L. LTÉE), SUCCESSION OF BERNARD ARSENEAULT, SUCCESSION OF JEAN-PIERRE ROBICHAUD (PÊCHERIES ALMA ROBICHAUD LTÉE), SUCCESSION OF LUCIEN CHIASSON, JEAN-MARC SWEENEY (PÊCHERIES J.M. SWEENEY INC.), MICHEL TURBIDE, RHÉAL TURBIDE (3181243 CANADA INC.), DONAT VIENNEAU
(LES PÊCHERIES M.B. LTÉE), FERNAND VIENNEAU (LES PÊCHERIES F.L.G. LTÉE), LIVAIN VIENNEAU (PÊCHERIES GHYSLAIN V. INC. AND PÊCHERIES GHYSLAIN V. LTÉE),
RHÉAL VIENNEAU (PÊCHERIES L.G. LTÉE)
Appellants
and
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
Respondent
REASONS FOR JUDGMENT
BOIVIN J.A.
[1] This is an appeal by the appellants and a cross-appeal by the respondent (or the Crown) from a decision rendered on October 19, 2016 (2016 FC 1159) in which Justice Gagné of the Federal Court (the Federal Court judge) allowed in part the appellants’ action.
[2] For the reasons that follow, I am of the opinion that both the appeal and the cross-appeal should be dismissed.
I. Facts
[3] The facts are not in dispute and they were well summarized by the Federal Court judge. I will reproduce the main facts for the purposes of these reasons.
[4] The appellants represent a community of traditional crab fishers, or their estates or their management companies, in midshore Area 12 (Area 12) in the southern Gulf of St. Lawrence. They are residents of New Brunswick, Quebec, Nova Scotia, and Prince Edward Island. Between 1975 and 1989, the snow crab fishery in that area was a competitive fishery, meaning that as soon as the fishing season began, every fisher could enter this area in the waters of the Gulf of St. Lawrence and catch as many crabs as possible before the end of the fishing season. Beginning in 1984, the Department of Fisheries and Oceans (DFO) established an annual total allowable catch (TAC). Following the depletion of crab stocks and the ensuing crisis in the fishing industry, an individual quota (IQ) regime was established in 1990 based on fishers’ historical catches. In other words, each crabber was assigned a predetermined share of the TAC.
A. The Marshall decision of the Supreme Court of Canada
[5] There was a considerable increase in the TAC from 1990 to 1995, and the number of metric tonnes (MT) allocated annually for the crab fishery was increased from 7,000 MT to 20,000 MT (Reasons of the Federal Court judge, at paragraph 25). In 1999, the Supreme Court of Canada rendered a decision that had direct consequences on the established fishing regime. In R. v. Marshall, [1999] 3 S.C.R. 456 [Marshall], it decided that First Nations have a treaty right under the treaties signed with the Crown in 1760 and 1761 and that they have the right to engage in commercial fishing in pursuit of a moderate livelihood at present-day standards. To deal with this new reality, DFO would henceforth be required to integrate First Nations into the commercial fishing of all species. The Marshall Initiative, which involved DFO attempting to buy back licences to integrate Aboriginal peoples into the various commercial fisheries, was introduced in response to the Marshall decision. However, the initiative was not as successful as anticipated, with the result that DFO did not fulfill its commitments to Aboriginal peoples. From 2003 to 2006, DFO used a financial aid agreement to remove IQs from crabbers and give them to Aboriginal people. To remedy this situation, DFO bought back a part of the IQ of each crabber who was giving it up for the future, with a release (Reasons of the Federal Court judge, at paragraph 59).
B. The 2003 Fishing Plan
[6] Around 2002–2003, the Maritime Fishermen’s Union (MFU) wanted the temporary access to the snow crab fishery that was granted to some lobster and groundfish fishers to become permanent. The MFU planned to use the revenue generated by the snow crab fishery for other activities, such as ecotourism, which in turn would enable workers to get out of the lobster and groundfish fisheries. In fact, if this approach, known as “rationalization”, allows for the removal of a certain number of fishers from a given fishery, it ensures in return the profitability of the remaining fishers (Reasons of the Federal Court judge, at paragraph 66). The Minister of Fisheries and Oceans (the Minister) announced a Three-Year Snow Crab Management Plan for the Southern Gulf (Fishing Plan) in 2003. Specifically, the Fishing Plan provides for the area identified as Area 18 (excluding a buffer zone where fishing is prohibited) to be integrated in Area 12, i.e., the area where the appellants fish, and for a percentage of the TAC of the new combined area to be allocated to the Area 18 fishers. To carry out “rationalization”, DFO allocated to the associations and to the fishers new access to 15% of the TAC for the three (3) years of the Fishing Plan. The Fishing Plan stipulates that the TAC and management measures would be set every year. For 2003, the TAC was fixed at 17,148 MT; this was a considerable 4,000 MT lower than the crab fishers had anticipated. The Area 12 crab fishers were not satisfied with the approach set out in the Fishing Plan, and they refused to sign a joint project agreement with DFO for the year 2003.
C. The use of a portion of the TAC to finance DFO activities
[7] Since there was no joint project agreement between DFO and crabbers in 2003 to finance DFO’s activities, DFO had to find a way to finance the trawl survey that is performed annually after the fishing season to assess the biomass in the concerned areas. To do so, in 2003, it used 50 MT of snow crab that were not fished by First Nations. Between 2004 and 2006, DFO issued a call for proposals to award snow crab allocations to third parties, namely Regroupement des pêcheurs professionnels des Îles-de-la-Madeleine and the Acadian Groundfish Fishermen’s Association, to finance its activities, such as the trawl survey, the improved white crab protocol, scientific analysis and increased catch monitoring. In 2004, 400 MT of snow crab were used to finance various DFO operations; in 2005, 480 MT were used, and in 2006, 1,000 MT were used.
[8] On July 11, 2007, a Federal Court action was filed against the Crown in connection with acts or omissions by the Minister and DFO officials that occurred between 2003 and 2006. In the context of that action before the Federal Court, the appellants alleged that some of the decisions made by the Minister and by DFO between 2003 and 2006, more specifically with regard to the Marshall Initiative, the Fishing Plan and the use of a portion of the TAC to finance DFO activities, gave rise to (i) expropriation; (ii) unjust enrichment; and (iii) misfeasance in public office.
II. The Federal Court decision
[9] The appellants’ action was only allowed in part, as the Federal Court judge dismissed most of their causes of action. First, she dismissed the appellants’ argument that the fishing licences gave them a right of ownership in the fishery resource or a vested right to a portion (IQ) of the TAC. Second, she found that the appellants had no legitimate expectation that their portion of the TAC would remain the same from year to year. As a result, she dismissed the causes of action for expropriation and unjust enrichment. The Federal Court judge also dismissed the appellants’ claims regarding their third cause of action, which was for misfeasance in public office, with the exception of one claim: she allowed the appellants’ claim that the Minister wrongfully reduced the TAC in 2003 for the sole reason of forcing the appellants to resume negotiations relating to a joint project agreement concerning the Atlantic fishery.
III. The appeal and the cross-appeal
[10] The appellants are appealing the decision of the Federal Court judge and are seeking a favourable appeal judgment from this Court on all of their causes of action, that is, expropriation, unjust enrichment, and misfeasance in public office, which were dismissed at trial.
[11] The Crown, on the other hand, cross-appealed for the sole reason that the Federal Court judge erred in allowing in part the appellants’ cause of action for misfeasance in public office on the part of the Minister.
IV. Issues
Did the Federal Court judge err in dismissing the cause of action for expropriation?
Did the Federal Court judge err in dismissing in part the cause of action for misfeasance in public office?
Did the Federal Court judge err in dismissing the cause of action for unjust enrichment?
Did the Federal Court judge err in allowing in part the cause of action for misfeasance in public office?
V. Standard of review
[12] The standard of review applicable to the Federal Court judge’s findings of law is correctness. The Federal Court judge’s findings of fact and of mixed fact and law are subject to the standard of palpable and overriding error (Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 [Housen]).
VI. Analysis
A. Did the Federal Court judge err in dismissing the cause of action for expropriation?
(1) Does the notion of “property” in common law apply in this case?
[13] The appellants argue that expropriation law applies to their rights interests in their fishing licences and their IQs. More specifically, the appellants claim that they are entitled to compensation for the loss they incurred as a result of the reduction of their IQs, which the Crown allegedly benefitted from. To succeed, the appellants must demonstrate that the Crown took “property” in the common law sense away from them or that they were deprived of a right under expropriation law.
[14] The starting point for the appellants’ argument in this regard can be summarized as follows: they argue that they have a fishing right that was crystallized in 1990 when DFO changed the competitive fishery policy into an individual fishery policy, that is, when IQs associated with each fishing licence were assigned to the appellants. According to the appellants, the IQ associated with each fishing licence is a permanent commercial asset that is assignable and transferrable. According to the appellants, it is the IQ that gives the appellants the right to fish a predetermined portion of the annual TAC, that is, a proprietary interest in the quotas. The appellants claim that by granting a portion of the TAC to First Nations following the Marshall decision and by appropriating a portion of the TAC for rationalization and to finance its operations, DFO removed approximately 35% of the appellants’ IQs. For the appellants, that 35% portion of the IQ that was removed constitutes an expropriation.
[15] The appellants agree that the fishing licences accompanied by IQs are not real rights that are normally at issue in a situation of expropriation, and that the Expropriation Act, R.S.C. 1985, c. E-21, does not apply in this case. However, they argue that a much broader interpretation must be given to the legal concept of expropriation and expropriation law to extend it to intangible assets. The appellants argue that such an interpretation is possible in the context of the exercise of ministerial discretion, as is the case here (section 7 of the Fisheries Act, R.S.C. 1985, c. F-14).
[16] In short, the appellants claim that by removing 35% of their IQs, DFO did in fact expropriate “property”. To support this position, the appellants argue that the Federal Court judge erred by disregarding the decisions in Saulnier v. Royal Bank of Canada, 2008 SCC 58, [2008] 3 S.C.R. 166 [Saulnier]; and Haché v. Canada, 2011 FCA 104, [2011] F.C.J. No. 414 (QL) [Haché]. According to the appellants, those decisions confirm that the fishing licences in this case must be considered property under the Fisheries Act. Therefore, it is appropriate to take a closer look at those two decisions.
(2) The Saulnier decision
[17] In Saulnier, the Supreme Court of Canada had to decide whether a fishing licence was “property” within the meaning of section 2 of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, and “personal property” within the meaning of Nova Scotia’s Personal Property Security Act, S.N.S. 1995‑96, c. 13; these are essentially questions of statutory interpretation. The Supreme Court answered in the affirmative. The appellants are relying on this decision to argue that a fishing licence must also be considered “property” within the meaning of the Fisheries Act. However, a careful reading of Saulnier demonstrates that this case differs from that case in several respects and that the appellants’ argument in the context of the Fisheries Act cannot be accepted.
[18] The Bankruptcy and Insolvency Act and the Personal Property Security Act are primarily commercial instruments, and the Supreme Court’s statutory interpretation findings in Saulnier, namely that regarding the “bundle of rights” conferred on the holder of a fishing licence, are made in the context of legislation that is distinct from that at issue in this case (Saulnier, at paragraph 43). Therefore, the concepts of profit à prendre and of the market value of licences addressed by the Supreme Court in Saulnier depend on the definition of “property” set out in the legislation at issue. Justice Binnie, writing the reasons for the Court in Saulnier, is careful to specify that “[i]t is extremely doubtful that a simple [fishing] licence could itself be considered property at common law” even though “a fishing licence is unquestionably a major commercial asset” (Saulnier, at paragraph 23). Justice Binnie states many times in that case that the statutes in question are largely commercial instruments that should be interpreted in a way best suited to enable them to accomplish their respective commercial purposes. Respecting Parliament’s intent in that specific context, the Supreme Court concluded that fishing licences meet the definition of “property” for the purposes of the definition of “property” in section 2 of the Bankruptcy and Insolvency Act and that of “personal property” within the meaning of section 2 of the Personal Property Security Act.
[19] However, the Supreme Court’s conclusions in Saulnier cannot be taken out of context. Justice Binnie broadly notes in Saulnier that his interpretation of the definitions at issue fall within a specific and narrow legislative context. In this case, the Federal Court judge referred to paragraph 48 of Saulnier, in which Justice Binnie responds to certain concerns that were raised by counsel for the Crown at the hearing in that case. Counsel for the Crown was concerned that a finding that a fishing licence is “property” in the context of the bankruptcy laws at issue in Saulnier would fetter the Minister’s discretion granted by the Fisheries Act. However, in my view, the Supreme Court removes any ambiguity concerning the extrapolation of its reasoning in Saulnier to the application of the Fisheries Act. It is useful to reproduce the words of Justice Binnie at paragraph 48 of Saulnier:
Counsel for the Attorney General of Canada was greatly concerned that a holding that the fishing licence is property in the hands of the holder even for limited statutory purposes might be raised in future litigation to fetter the Minister’s discretion, but I do not think this concern is well founded. The licence is a creature of the regulatory system. Section 7(1) of the Fisheries Act speaks of the Minister’s “absolute discretion”. The Minister gives and the Minister (when acting properly within his jurisdiction under s. 9 of the Act) can take away, according to the exigencies of his or her management of the fisheries. The statute defines the nature of the holder’s interest, and this interest is not expanded by our decision that a fishing licence qualifies for inclusion as “property” for certain statutory purposes.
[Emphasis added.]
[20] This Court later reiterated that reasoning in Kimoto v. Canada (Attorney General), 2011 FCA 291, [2011] F.C.J. No. 1471 (QL) [Kimoto], where it stated the following at paragraph 12:
… Justice Bennie, at paragraph 48, specifically cautioned that the ruling did not expand the nature of a licence holder’s interest as defined in the Fisheries Act … beyond the particular statutory context before the court…
[21] Therefore, the Federal Court judge in this case was correct to find that Saulnier is distinguishable from the case at bar and does not apply.
(3) The Haché decision
[22] In Haché, this Court had to decide whether the proceeds of the disposition of two commercial fishing licences received through a governmental voluntary licence retirement program were taxable as a capital gain. The issue was as follows: were the fishing licences property within the meaning of subsection 248(1) of the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.) (ITA)? This Court, relying on Saulnier, reiterated the commercial reality of the fishing industry. Per Justice Trudel, this Court found, in light of the evidence before the Tax Court of Canada, that when the fisher involved in that case had negotiated the buyback of his snow crab and groundfish licences, “[he] … was then negotiating on ‘property’ within the meaning of the ITA and that he was claiming sums as consideration for the disposition of a ‘right of any kind whatever.’” (Haché, at paragraph 41).
[23] Like the findings made in Saulnier, those expressed in Haché fall within a very specific legislative context. Like the Bankruptcy and Insolvency Act, the ITA contains provisions that define the term “property”. This nomenclature is absent from the Fisheries Act, and this cannot be ignored. The decisions in both Saulnier and Haché were rendered to give effect to Parliament’s intention in a specific legislative context that cannot be compared to this case, as the Federal Court judge explains at paragraph 112:
I therefore conclude that the scope of these decisions [Saulnier and Haché] is limited to the legislative context in which they were rendered. They do not apply in this case and are of no assistance in determining the nature of the interests conferred by a commercial fishing licence on its holder, in an IQ or in a predetermined portion of the TAC. Instead, I find it appropriate to turn to the relevant legislation and regulations and to the interpretation given to them by the courts. Just as in Saulnier and Haché, where the courts interpreted the BIA [Bankruptcy and Insolvency Act] and the ITA in light of the specific purposes of these statutes, my task is to interpret the Fisheries Act in light of its intended purposes and those of the regulations thereunder.
[Emphasis added.]
[24] The decision in Haché, like the decision in Saulnier, is clearly distinct from this case and does not apply here. The approach to take in addressing the appellants’ main argument regarding expropriation is to analyze it from the perspective of the relevant provisions of the Fisheries Act and its Regulations, and not otherwise.
(4) The Fisheries Act and its Regulations
[25] Section 7 of the Fisheries Act grants the Minister discretion to perform his duties, namely for the purposes of issuing fishing licences:
Fishery leases and licences
Baux, permis et licences de pêche
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.
Idem
Réserve
(2) Except as otherwise provided in this Act, leases or licences for any term exceeding nine years shall be issued only under the authority of the Governor in Council.
(2) Sous réserve des autres dispositions de la présente loi, l’octroi de baux, permis et licences pour un terme supérieur à neuf ans est subordonné à l’autorisation du gouverneur général en conseil.
[26] Under the Fisheries Act, it is the Minister’s duty to manage, conserve and develop fisheries on behalf of Canadians. The case law has acknowledged on many occasions that Canada’s fisheries are a common property resource that belongs to all Canadians and that the Minister’s duty is to manage fisheries having regard to the public interest (Comeau’s Sea Foods Ltd. v. Canada (Minister of Fisheries and Oceans), [1997] 1 S.C.R. 12, [1997] S.C.J. No. 5 (QL) [Comeau’s Sea Foods] and Kimoto).
[27] In Carpenter Fishing Corp. v. Canada, [1998] 2 F.C. 548, [1997] F.C.J. No. 1811 (F.C.A.) (QL) [Carpenter Fishing], Justice Décary noted, at paragraph 37 of his reasons, the broad discretion granted to the Minister in this matter, particularly with regard to policies on fishing quotas:
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 Ministry otherwise authorized by the Fisheries Act are clearly beyond the broad purposes permitted under the Act that courts should intervene.
[28] The Fisheries Act does not define the concept of “fishing licence”. However, the Fishery (General) Regulations, SOR/93-53 (1993 Regulations) prescribe conditions with regard to fishing licences. In particular, the 1993 Regulations stipulate that a licence expires on December 31 of each year (section 10); that a licence is the property of the Crown and is not transferable; and that the issuance of a document of any type to any person does not imply or confer any future right or privilege for that person to be issued a document of the same type or any other type (section 16).
[29] The 1993 Regulations also set out conditions of licences at paragraph 22(1)(a), namely with regard to the species and quantities of fish:
Conditions of Licences
Conditions de permis
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:
22 (1) Pour une gestion et une surveillance judicieuses des pêches et pour la conservation et la protection du poisson, le ministre peut indiquer sur un permis toute condition compatible avec le présent règlement et avec les règlements énumérés au paragraphe 3(4), notamment une ou plusieurs des conditions concernant ce qui suit :
(a) the species of fish and quantities thereof that are permitted to be taken or transported;
a) les espèces et quantités de poissons qui peuvent être prises ou transportées;
[30] This, then, is the specific statutory and regulatory context in which this appeal and more specifically the main issue of expropriation as alleged by the appellants in regard to their fishing licences and associated IQs, arises.
(5) Does expropriation law apply to the appellants?
[31] Before this Court, just as before the Federal Court judge, the appellants introduced their arguments centred on expropriation by citing the decision of the House of Lords in Attorney‑General v. De Keyser’s Royal Hotel Ltd., [1920] AC 508, [1920] UKHL 1 at page 542 [De Keyser]. That decision sets out the principle that statutes should not be interpreted so as to enable an individual’s property to be confiscated without payment. According to the appellants, Parliament can decide to exclude a claim for compensation following expropriation under a statute, but it must do so explicitly. The appellants claim that the discretion granted to the Minister in section 7 of the Fisheries Act is silent on the intention to exclude expropriation law in the context of the Fisheries Act. However, the principle set out in De Keyser cannot be applied in a vacuum. That means that in this case it must be addressed by taking into consideration the Fisheries Act and more specifically the discretion that Act grants to the Minister “wherever the exclusive right of fishing does not already exist by law” (section 7 of the Fisheries Act). Parliament’s intention is clear in that if a law does not grant an exclusive right of fishing – and no law of that type has been brought to this Court’s attention – the Minister can, in the exercise of his discretion, “… issue … leases and licences for fisheries or fishing” (section 7 of the Fisheries Act). It follows that this discretion also enables the Minister to not renew such licences, within the scope of his mandate to manage fisheries.
[32] The statutory and regulatory framework for issuing fishing licences pursuant to the Fisheries Act poses an obstacle to the appellants’ claims of expropriation. Before this Court and the Federal Court, the appellants nonetheless argued that the following decisions support their claims: Manitoba Fisheries Ltd. v. The Queen, [1979] 1 S.C.R. 101 [Manitoba Fisheries]; R. v. Tener, [1985] 1 S.C.R. 533 [Tener]; Rock Resources Inc. v. British Columbia, 2003 BCCA 324 [Rock Resources]; and Beaurivage v. Québec (Ville), J.E. 2004-820 (C.A.Q.), 2004 CanLII 26320 (QC CA) [Beaurivage] (application for leave to appeal to the Supreme Court of Canada dismissed, No. 30351).
[33] Dissatisfied with the Federal Court judge’s reasons, the appellants’ approach before this Court consisted in trying to convince us that the judge incorrectly interpreted the case law. Our role as an appeal court is not to repeat the trial – which stretched over a period of 33 days – but rather to review the decision of the Federal Court judge and intervene if we are convinced that an error according to the criteria set out in Housen was committed. For this purpose, we must look at the decisions on which the appellants rely to invoke expropriation law in the context of the Fisheries Act in order to determine whether the Federal Court judge committed an error in her analysis that requires this Court’s intervention.
[34] The appellants rely, inter alia, on Manitoba Fisheries to argue that expropriation can occur with regard to intangible property and not just property at common law. In Manitoba Fisheries, Manitoba Fisheries Limited, a company that operated a very profitable fish exporting business for 40 years for a loyal clientele, brought a case against the Government of Canada following the enactment of the Freshwater Fish Marketing Act, R.S.C. 1985, c. F-13, because, as a result of the Act, the Government of Canada gave its agent exclusive rights to export fish out of Manitoba and participating provinces. The agent in question was authorized to issue licences to allow Manitoba Fisheries Limited to continue exporting fish, but Manitoba Fisheries Limited did not obtain them and was not given any compensation. As a result, Manitoba Fisheries Limited argued before the courts that the Freshwater Fish Marketing Act had the effect of depriving the company of its commercial goodwill.
[35] The Supreme Court agreed with Manitoba Fisheries Limited. According to the Supreme Court, Manitoba Fisheries Limited had been deprived of business property and was never compensated for the loss. The appellants in this case rely on Manitoba Fisheries to argue that an IQ, even though intangible, is a commercial asset in the same way as a fisher’s boats and equipment are. As the Federal Court judge stated at paragraph 153, a parallel cannot be drawn between the rights the appellants claim to have in their IQs and the goodwill of a business as an asset because the appellants do not “own” their IQs:
… the plaintiffs are confusing the nature of property (the issue in Manitoba Fisheries) with the nature of a right in property (the issue regarding IQs). In Manitoba Fisheries, there was no doubt that goodwill was part of the appellant’s assets. The plaintiffs, however, do not own the IQs that were assigned to them by a DFO policy. Even though the plaintiffs view their IQs as valuable assets capable of being the subject of a transaction, the fact remains that their rights in these IQs are precarious and that the value of their licences depends on the annual biomass, market price and the Minister’s discretion whether or not to issue new licences or share the resource with other fishers.
[36] Therefore, Manitoba Fisheries does not support the appellants’ argument that the IQs give them a property right and that case cannot serve as an applicable precedent that can justify compensation for expropriation in this case.
[37] The context of IQs also differs from that at issue in Tener and Rock Resources, both of which involved mineral claims. At paragraph 157, the Federal Court judge made several relevant distinctions between mineral claims and the IQs at issue:
… To begin with, the owner of a mineral claim has an exclusive right, whether it is a personal or a property right, and it is generally registered in a registry. Furthermore, the property belongs to the Crown or an individual, not all Canadians. There are a number of federal and provincial statutes that confer on the owners of mineral claims personal or property rights over land owned by another. In this case, the Fisheries Act does not confer to the plaintiffs any property rights in their IQs, which are the result of a simple policy.
[Emphasis added.]
[38] The Federal Court judge’s analysis clearly illustrates that there can be no question of expropriation with regard to IQs because they do not grant any property rights or real interest akin to the rights of mineral claim holders.
[39] The appellants also rely on the decision in Beaurivage by the Quebec Court of Appeal. In that case, Quebec City had enacted an order reducing the number of calèche licences from 30 (27 of which were held by Mr. Beaurivage) to 16. In its analysis, the Quebec Court of Appeal noted that Quebec City’s powers to regulate calèches were granted under its Charter (Charter of Ville de Québec, national capital of Québec, C.Q.L.R., c. C-11.5). This power to regulate calèches and require calèche owners to obtain licences did not allow Quebec City to reduce the number of licences or refuse the renewal of previously issued licences without compensation (Beaurivage, at paragraphs 36 and 50).
[40] However, the regulations for the Fisheries Act follow an entirely different logic than those at issue in Beaurivage. The 1993 Regulations stipulate that a fishing licence is a document that, unless otherwise specified, expires on December 31 of each year and does not provide any guarantee to the holder of receiving a document of the same type each year (1993 Regulations, sections 2, 10 and 16). Indeed, if the stability of the fishing industry depends on DFO’s predictable renewal of licences year after year (Saulnier, at paragraph 14), this renewal cannot be interpreted as conferring a right similar to a property right that may be expropriated.
[41] The recent decision of this Court i