Ahousaht First Nation v. Canada (Fisheries, Oceans and Coast Guard)

Ahousaht First Nation v. Canada (Fisheries, Oceans and Coast Guard)
Court (s) Database
Federal Court Decisions
Date
2019-08-29
Neutral citation
2019 FC 1116
File numbers
T-721-19
Decision Content
Date: 20190829
Docket: T-721-19
Citation: 2019 FC 1116
Ottawa, Ontario, August 29, 2019
PRESENT: Mr. Justice Gascon
BETWEEN:
THE AHOUSAHT FIRST NATION, THE EHATTESAHT FIRST NATION, THE HESQUIAHT FIRST NATION, THE MOWACHAHT/MUCHALAHT FIRST NATION, AND THE TLA-O-QUI-AHT FIRST NATION
Applicants
and
THE MINISTER OF FISHERIES AND OCEANS AND CANADIAN COAST GUARD
Respondent
and
WEST COAST TROLLERS (AREA G) ASSOCIATION AND
SPORT FISHING INSTITUTE OF BRITISH COLUMBIA (SFI)
Intervenors
ORDER AND REASONS
I. Overview
[1] The Applicants, the Ahousaht, Ehattesaht, Hesquiaht, Mowachaht/Muchalaht and Tla-O-Qui-Aht First Nations [together, Five Nations or Applicants], are five of the 14 First Nations comprising the Nuu-chah-nulth cultural and linguistic group located on the West Coast of Vancouver Island [WCVI].
[2] On August 2, 2019, the Five Nations brought a motion, pursuant to section 18 of the Federal Courts Act, RSC 1985, c F-7 and Rule 373 of the Federal Courts Rules, SOR/98-106 , to be granted an interlocutory injunction against the Minister of Fisheries and Oceans and Canadian Coast Guard [Minister], as follows:
a. An interim or interlocutory injunction enjoining the Minister from opening or continuing the opening of the commercial Area G salmon fishery and/or the recreational fishery for the harvest of WCVI Aggregate Abundance Based Management [AABM] chinook without allowing the Applicants to continue fishing commercially for AABM chinook pursuant to their established aboriginal right to do so as protected by subsection 35(1) of the Constitution Act, 1982 for at least an additional 5,000 pieces of AABM chinook;
b. Costs; and
c. Such other relief as this Court deems just.
[3] The injunction motion stems from the Five Nations’ application for judicial review of a decision [Decision] of the Minister dated March 31, 2019 approving and adopting the “Five Nations Multi-Species Fishery Management Plan, March 31, 2019-March 31, 2020” [Fishery Management Plan]. In their underlying application for judicial review, the Five Nations seek the following remedies:
a. A declaration that the Fishery Management Plan fails to offer the Applicants the opportunity to exercise their aboriginal rights [Aboriginal Rights], as established in proceedings before the British Columbia Supreme Court [BCSC], Vancouver Registry No. 8033335, in a manner that:
a. remedies the general and specific findings of unjustified infringement of the Aboriginal Rights [Unjustified Infringements] as found and declared by the BCSC pursuant to its Reasons for Judgment [2018 Reasons] and Order [2018 Order] dated April 19, 2018 [collectively, 2018 Judgment]; or
b. is otherwise consistent with the 2018 Judgment;
b. In the alternative, a declaration that portions of the Fishery Management Plan fail to offer the Applicants the opportunity to exercise their Aboriginal Rights in a manner that remedies some or all of the Unjustified Infringements or that is otherwise consistent with the 2018 Judgment;
c. An interim or interlocutory injunction enjoining the Minister from enforcing some or all of the Fishery Management Plan against the Applicants or their members;
d. An interim or interlocutory injunction enjoining the Minister from authorizing or opening other fisheries (recreational, general commercial or both) that are inconsistent with or given priority over the Applicants’ Aboriginal Rights;
e. An order quashing the Decision and/or the Fishery Management Plan or portions thereof; and
f. Costs.
[4] In this motion, the Court is not tasked with deciding the merits of the Five Nations’ underlying application for judicial review, but with assessing whether or not the requirements of the test governing the issuance of interlocutory injunctions have been met. This is the only issue to be determined.
[5] The Five Nations submit that they satisfy each prong of the conjunctive three-part test set forth by the Supreme Court of Canada [SCC] in RJR-MacDonald Inc v Canada (Attorney General), [1994] 1 SCR 311 [RJR-MacDonald] for the issuance of interlocutory injunctions. They claim that: 1) a serious issue to be tried has been raised in their underlying application; 2) they will suffer irreparable harm if the interlocutory injunction is not granted; and 3) the balance of convenience, which compares the harm they will suffer to the harm done to the Minister and other interested parties, as well as the public interest, favours them.
[6] The Minister responds that the Five Nations have failed to meet the tripartite RJR-MacDonald test, that the remedy sought is an inappropriate order of mandamus and that, in the circumstances, it would not be just and equitable to issue the interlocutory injunction. In an order dated August 9, 2019, the Court granted leave to intervene to The West Coast Trollers (Area G) Association [Association] and to the Sport Fishing Institute of British Columbia [SFI], for the purpose of the motion. The Association and the SFI filed affidavit evidence and written submissions and made oral submissions at the hearing of the motion, in opposition to the Five Nations’ motion.
[7] The injunction motion proceeded before me in Vancouver, British Columbia on August 13 and 14, 2019. After hearing the submissions of all parties, I reserved judgment on the motion. On August 16, 2019, I dismissed the Five Nations’ motion, with reasons to follow. These are my reasons for dismissing the motion.
[8] Further to my review of the parties’ written and oral submissions and of the evidence, I am not satisfied that the Five Nations have met the applicable conditions for the issuance of the interlocutory injunction they are seeking. Even if it is assumed that their underlying application raises a serious issue to be tried, they failed to demonstrate that they will suffer irreparable harm if the injunction is not granted, and if the Minister is not enjoined from continuing the commercial fishery and/or the recreational fishery for the harvest of WCVI AABM chinook salmon, without allowing them to continue fishing commercially for at least an additional 5,000 pieces. In addition, the balance of convenience does not tilt in their favour. Furthermore, the remedy sought by the Five Nations amounts to an order of mandamus for which the conditions are not met. In the circumstances, I conclude that this is not an exceptional situation where it would be just and equitable for the Court to intervene before the Five Nations’ application for judicial review is heard on the merits, with the benefit of a full record.
II. Background
[9] The backdrop to this injunction motion spans many years of negotiations and litigation between the Five Nations and the Department of Fisheries and Oceans [DFO] regarding the Five Nations’ aboriginal rights to harvest and sell fish on the WCVI. It results from the Five Nations’ disagreement with the allocation of one particular subset of one species of fish, namely AABM chinook salmon [AABM Chinook], provided to them by DFO in the Minister’s Fishery Management Plan. As such, it relates to one very specific and discrete issue in the overall dispute between the Five Nations and DFO.
[10] This backdrop is complex and has given rise to lengthy court proceedings opposing the Applicants to the Minister and DFO [together, Canada] and to extensive decisions by the BCSC and other courts. What follows is a summary of the main factual elements relevant to this injunction motion.
[11] In reading these reasons, one must keep in mind that interlocutory reliefs are considered following a summary review of the issues, and on the basis of partial evidence. The reasons I am issuing today are not a definitive resolution to the Five Nations’ on-going dispute with the Minister and DFO. Nor are they intended to provide answers to all of the questions raised by the Five Nations’ application for judicial review. Far from it.
A. AABM Chinook
[12] This injunction motion relates solely to AABM Chinook. AABM Chinook is one of five salmon species harvested on the WCVI and covered by the Fishery Management Plan, along with Sockeye, Pink, Chum, and Coho salmon. Salmon is one of several species of fish subject to the Plan. Apart from salmon, the Fishery Management Plan notably applies to many species of groundfish, crab and prawn.
[13] AABM Chinook are mixed stocks of Chinook salmon that pass by the WCVI on their way to natal rivers in Washington and Oregon states as well as rivers in British Columbia (including the Fraser River). The term “WCVI AABM” is used in the Pacific Salmon Treaty between Canada and the United States (and by the Minister) to manage this mixed stock fishery taking place along the WCVI. AABM Chinook is described as a mixed stock fishery as it is comprised of the Five Nations’ rights-based commercial fishery, the recreational fishery sector and the “Area G” commercial troll fishery. Area G is the term used by DFO to describe the fishing region off WCVI. AABM Chinook are also harvested by the Five Nations for food, social and ceremonial [FSC] needs and under the Maa-nulth treaty for “domestic” (i.e., food and Indigenous barter) purposes [Maa-nulth Treaty].
[14] It is not disputed that AABM Chinook along the WCVI provide an important fishery to the Five Nations.
[15] Because of the transboundary nature of the AABM Chinook populations and the number of different fisheries in which they can be caught, the total number of AABM Chinook that can be harvested in the WCVI in a given year is set by the Pacific Salmon Commission [Commission] under the terms of the Pacific Salmon Treaty. The Pacific Salmon Treaty’s primary goal is to ensure the conservation of all species of Pacific salmon. The Commission thus develops an abundance index that it uses to set a “Total Allowable Catch” each year to ensure conservation of the AABM Chinook populations [Canadian TAC]. On April 1 2019, the Commission determined the Canadian TAC for 2019 to be 79,900 pieces of AABM Chinook.
B. 2009 judgment
[16] In a judgment issued in November 2009 by Madam Justice Garson [Garson Judgment], the BCSC established that the Five Nations hold aboriginal rights, protected by subsection 35(1) of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 , to harvest any species of fish from their individual court-defined fishing territories to an extent of nine nautical miles offshore, and to sell that fish into the commercial marketplace [Aboriginal Rights] (Ahousaht Indian Band and Nation v Canada (Attorney General), 2009 BCSC 1494 at paras 486-489, 909).
[17] Apart from the Five Nations, no other First Nations have proven such aboriginal commercial fishing rights except for the Heiltsuk commercial right to harvest herring spawn on kelp, recognized by the SCC in R v Gladstone, [1996] 2 SCR 723 [Gladstone].
[18] In her judgment, Justice Garson also held that Canada had infringed the Applicants’ Aboriginal Rights in its management of the Pacific fisheries. She, however, did not decide the question of justification, declaring instead that Canada had a duty to consult and negotiate with the Five Nations regarding how their newly-declared Aboriginal Rights could be accommodated and exercised. She set a period of time for consultation and negotiation and gave either party leave to return to the BCSC to have the question of whether Canada could justify its infringement determined. The Garson Judgment did not specifically impose limits on the scope and scale of the Five Nations’ Aboriginal Rights, but did not define them precisely either.
[19] The Garson Judgment was upheld twice on appeal, with the exception of excluding one species, namely, geoduck clams, from the Aboriginal Rights.
C. 2018 judgment
[20] Since negotiations were unsuccessful, the Five Nations turned to the BCSC to have the justification question decided. In a detailed judgment issued in April 2018 [Humphries Judgment], [1] Madam Justice Humphries released her decision on the justification proceeding, finding that some elements of how Canada managed the fisheries were justified, while others were not. The Humphries Judgment notably specified the scope and definition of the Five Nations’ Aboriginal Rights and held that Canada had not justified its approach to allocating AABM Chinook to the Five Nations (Ahousaht Indian Band and Nation v Canada (Attorney General), 2018 BCSC 633 [Ahousaht 2018]).
[21] The Humphries Judgment clarified the interpretation to be given to the Five Nations’ Aboriginal Rights (Ahousaht 2018 at paras 414, 441). More specifically, the 2018 Order determined at paragraph 5 that the Aboriginal Rights are to be interpreted as follows:
a. A non-exclusive, small-scale, artisanal, local, multi-species fishery, to be conducted in their court-defined area [CDA] for fishing, which extends nine nautical miles offshore, using small, low-cost boats with limited technology and restricted catching power, and aimed at wide community participation;
b. Providing predictable and long-term fishing opportunities; and
c. Allowing the sale of fish into the commercial marketplace with the opportunity, but not the guarantee, of sustainability and viability.
[22] Justice Humphries however held that it is not the court’s role to design a fishery or to set allocations for each species of fish, and determined that “the task of allocating fishery resources belongs to the government” (Ahousaht 2018 at paras 12, 836, citing Gladstone at pp 766-767).
[23] The Humphries Judgment also found that Canada could not justify its approach to allocating AABM Chinook to the Five Nations and its infringement of the Aboriginal Rights in that respect. Although Justice Humphries held that she could not make a determination of an exact allocation of AABM Chinook, she stated that a “generous approach” was required in the future for allocations of AABM Chinook and that DFO’s method of allocation had to be revised (Ahousaht 2018 at paras 1248-1249). The BCSC stated:
[…] a generous approach is required for allocations of AABM chinook, given the importance of that species to the plaintiffs, the lack of evidence of effects on the rest of the commercial fishery if the mitigation policy is not adhered to for this species, and the priority the plaintiffs have over the recreational fishery, despite the present Salmon Allocation Policy. While DFO makes a legitimate point that the mitigation policy is useful in terms of reconciliation, it may stand in the way of appropriate allocations if DFO chooses not to interfere with the recreational allocation for AABM chinook.
The method of setting the present allocation for chinook, which has been based on the Salmon Allocation Policy and the mitigation policy, is not justified. It is up to the Minister to reassess DFO’s approach to allocation of chinook with these principles in mind.
[24] The 2018 Order thus declared that it is an Unjustified Infringement of the Five Nations’ Aboriginal Rights if DFO gives priority in allocation or in harvesting opportunities to the recreational fishery over the Five Nations’ exercise of their Aboriginal Rights to harvest and sell fish. The 2018 Order also declared, at paragraphs 8(g) and 9(a), that Canada’s application of An Allocation Policy for Pacific Salmon (October, 1999) [Salmon Allocation Policy] which gave the recreational fishery priority over the Five Nations in allocation or in harvesting opportunities of fish in general and Chinook salmon in particular was an Unjustified Infringement. The Humphries Judgment stated that Canada was therefore required to reassess its approach to allocating AABM Chinook to the Five Nations.
[25] The 2018 Order otherwise declared that Canada’s management of AABM Chinook fisheries was a justified infringement of the Applicants’ Aboriginal Rights with regard to: (i) Canada’s management of terminal Chinook salmon fisheries; (ii) Canada’s decision to reject the Five Nations’ request for 30% of the Canadian TAC for AABM Chinook on the WCVI; and (iii) Canada’s decision to reject the Five Nations’ request for an additional allocation of AABM Chinook for a winter fishery (2018 Order at paras 11(a), (b)).
[26] The 2018 Order further directed Canada to offer the Five Nations, by March 31, 2019, opportunities to exercise their Aboriginal Rights to harvest and sell salmon, groundfish, crab and prawn in their fishing territories in a manner that remedies the identified findings of Unjustified Infringements.
[27] On the issue of whether Canada had fulfilled its duty to consult, the BCSC held that there would be no purpose in deciding the question at that point, given that the duty was ongoing. Justice Humphries stated that “DFO manages the fishery, but must consult on decisions and approaches of importance to the [Applicants]” (Ahousaht 2018 at para 1221).
[28] The Five Nations appealed the Humphries Judgment and numerous elements of the 2018 Order made against them, and the BC Court of Appeal [BCCA] has not yet issued its decision.
D. The Fishery Management Plan
[29] Following the Humphries Judgment, DFO developed the Fishery Management Plan with the intention of complying with the terms of the 2018 Order and the findings contained in the Humphries Judgment.
[30] On November 30, 2018, the Minister provided the Five Nations with a draft Fishery Management Plan [Draft FMP]. In consultations that followed from November 2018 to March 2019, the Five Nations maintained that the entirety of the Draft FMP fell short of accommodating their established Aboriginal Rights in compliance with the terms of the Humphries Judgment. The Draft FMP notably included a formula based on a percentage of the Canadian TAC to determine the AABM Chinook allocations for the Five Nations. The Applicants considered that this formula would result in an allocation that would be inadequate and would not provide a viable fishery or a meaningful exercise of their rights. Throughout the consultations, they asked the Minister to explain how the AABM Chinook allocation formula had been arrived at and why the Minister considered the allocation to be appropriate to address the Five Nations’ constitutionally-protected Aboriginal Rights. The Five Nations consider that the Minister never provided a comprehensible explanation as to how DFO determined the AABM Chinook allocation or percentage.
[31] On March 31, 2019, the Minister delivered the finalized version of the Fishery Management Plan. For the 2018 and 2019 seasons, the allocation provided by the Minister to the Five Nations was calculated to be 12.17% of the Canadian TAC for AABM Chinook on the WCVI, after deduction of the Nuu-chah-nulth FSC needs and the Maa-nulth Treaty. This allocation to the Five Nations has priority over allocations to the recreational and the commercial Area G fisheries.
[32] The Minister is of the view that the Fishery Management Plan provides the Five Nations with opportunities to exercise their Aboriginal Rights to harvest and sell salmon (including AABM Chinook), groundfish, crab and prawn in a manner that remedies the Humphries Judgment’s findings of Unjustified Infringements. The Five Nations disagree.
E. Allocations
[33] Under the Fishery Management Plan, the allocation process works as follows for AABM Chinook. Once the Canadian TAC for AABM Chinook is determined by the Commission under the terms of the Pacific Salmon Treaty (i.e., 79,900 fish for the 2019 season), DFO is responsible for allocating the TAC among all fishers with either rights to, or interests in, harvesting AABM Chinook off the WCVI.
[34] DFO first allocates the number of AABM Chinook required to meet the Nuu-chah-nulth FSC needs on the WCVI, including for the Five Nations, and Canada’s commitments for domestic fishing under the Maa-nulth Treaty. In 2019, DFO allocated 5,000 fish for FSC needs and 3,297 fish under the Maa-nulth Treaty. This left 71,603 AABM Chinook available for harvest by other fisheries.
[35] DFO then allocates what it estimates to be the AABM Chinook required to meet the needs of the Five Nations for the exercise of their constitutionally-protected Aboriginal Rights to harvest and sell fish commercially. For AABM Chinook, this estimate was established at 12.17% of the Canadian TAC after allocating for FSC needs and commitments under the Maa-nulth Treaty. In 2019, this equated to 8,714 fish. I observe that the Fishery Management Plan contains no explanation as to the reasons why DFO considers 12.17% of the Canadian TAC to be an appropriate allocation to address the Five Nations’ Aboriginal Rights with respect to AABM Chinook. This meant that 62,889 AABM Chinook remained available for the recreational and commercial Area G fisheries in 2019.
[36] After allocating AABM Chinook for the Five Nations’ rights-based fishery, DFO then allocates what is remaining of the Canadian TAC amongst recreational and commercial fishers. The Salmon Allocation Policy provides that recreational fishers receive priority in allocation for Chinook and Coho salmon, whereas commercial fishers get priority in allocation for Sockeye, Pink, and Chum salmon. As such, DFO next allocates AABM Chinook from the Canadian TAC to the recreational fishery based on its best estimate of what the recreational harvest will be that year. As long as the recreational fishery is expected to catch less than the remaining Canadian TAC, there is no overall limit for the recreational fishery, though there is a daily limit of two AABM Chinook per day per recreational fisher on the WCVI. What eventually remains of the Canadian TAC, after the projected recreational harvest is deducted, is the quantity available for the general commercial Area G fishery and is referred to as the Commercial TAC.
[37] In 2019, DFO initially projected an expected recreational harvest of 50,000 AABM Chinook, which was the same expected catch for AABM Chinook as in previous years. This meant that the Commercial TAC was projected to be 12,889 AABM Chinook for 2019.
[38] After DFO had finalized the Fishery Management Plan, the Five Nations requested that they be allowed to fish five Area G commercial troll licenses outside their rights-based fishery and to reduce the allocation of AABM Chinook available in their rights-based fishery accordingly. Maintaining those licenses in the general commercial Area G fishery, though depriving more of their members of the opportunity to fish, was viewed by the Five Nations as necessary to provide a more predictable and potentially viable commercial fishery for at least a few fishers. DFO acceded to this request, which resulted in an approximate reduction of 2.34% (or 1,675 pieces) off the 12.17% allocated to the Five Nations for their rights-based fishery. This brought the allocation to the Five Nations to 9.83% of the Canadian TAC for AABM Chinook, or 7,039 pieces.
[39] As it is a residual number determined at the end of the allocation process, the Commercial TAC was subsequently raised by a corresponding amount of 1,675 fish to 14,564 pieces.
[40] At the end of July 2019, based on in-season catch information, DFO revised the projected recreational harvest of 50,000 AABM Chinook and lowered it to 40,000 pieces. Therefore, pursuant to the method of allocation established by the Fishery Management Plan, the Commercial TAC available for the Area G commercial fishery was automatically increased to 24,564 pieces, reflecting the downward revision of the expected recreational harvest by 10,000 fish.
[41] Before the Humphries Judgment and the introduction of the Fishery Management Plan, the Five Nations’ yearly allocation for AABM Chinook was determined as a share of the Commercial TAC. In other words, DFO gave the recreational fishery priority in the allocation of AABM Chinook over the Five Nations’ rights-based fishery. That is no longer the case. The Five Nations’ 12.17% share of the Canadian TAC under the Fishery Management Plan now has priority in allocation over both the recreational and the general commercial fisheries. It is therefore unaffected by any adjustments that DFO makes about allocating the remaining AABM Chinook between the recreational and commercial fisheries.
F. Court challenges
[42] No court has yet determined whether the Fishery Management Plan complies with the Humphries Judgment and the 2018 Order, or whether it remedies the Unjustified Infringements. The Five Nations claim that it does not. More specifically, the Five Nations have consistently maintained that the allocations for AABM Chinook are insufficient to provide for a viable rights-based commercial fishery for their communities, comprising a registered population of more than 5,000 members for all Five Nations. In 2019, 165 members have registered to participate in the AABM Chinook fisheries but in past years, the number has been as high as 229 members.
[43] The Five Nations have commenced two legal proceedings challenging various aspects of the Fishery Management Plan, including the allocation of AABM Chinook. On April 30, 2019, the Five Nations filed their application for judicial review before this Court, in which they seek a finding, among many others, that the Fishery Management Plan is inadequate to remedy the findings of Unjustified Infringements in the 2018 Order. They brought this injunction motion within this proceeding. On May 13, 2019, the Five Nations also filed a Notice of Civil Claim against the Minister before the BCSC.
[44] Since the Fishery Management Plan was issued by DFO, the Five Nations have also sent several letters to DFO expressing their concerns with the Plan, but DFO did not answer them to the Five Nations’ satisfaction. In those letters, the Five Nations specifically took issue with DFO’s approach to allocating AABM Chinook, asking for “significantly greater” opportunity. More particularly, on May 16, 2019, the Five Nations wrote to DFO regarding the AABM Chinook allocation for the recreational fishery, signalling their understanding that the commercial Area G sector was lobbying for a reduction in the recreational catch and a re-allocation of that reduced amount to the commercial sector. At that time, the Five Nations expressly requested an additional 5,000 pieces of AABM Chinook for 2019.
[45] At the end of July 2019, DFO responded that the Five Nations’ request for an additional quantity of AABM Chinook would not be granted. In that response, Mr. Thomson, Regional Director of the Fisheries Management branch at DFO, indicated that no additional allocations of AABM Chinook were available to the Five Nations in advance of the “reconciliation agreement.”
G. Current status
[46] On July 15, 2019, DFO opened the Five Nations’ rights-based opportunity to harvest AABM Chinook. The offshore recreational fishery was permitted to fish AABM Chinook on the same date. Approximately two weeks later, on August 1, 2019, DFO opened the regular commercial Area G fishery for AABM Chinook on the WCVI.
[47] At the time of the hearing before this Court, Mr. Thomson estimated that the updated catch for the Five Nations rights-based fishery for AABM Chinook up to the end of August 5, 2019 was 6,144 out of their total allowable catch of 7,039 for the 2019 season. After the closure of the fishery on August 12, 2019, Ms. Gagne, the T’aaq-wiihak Fisheries Manager, estimated that only 477 pieces of AABM Chinook remained to be fished by the Five Nations. The commercial sector allowance of 20,000 AABM Chinook was achieved around August 8, 2019, with the remaining 4,564 pieces to be harvested in September.
III. Analysis
A. The test for granting an interlocutory injunction
[48] It is trite law that, in order to succeed on a motion seeking an interlocutory injunction, the moving party must satisfy the well-known tripartite test set out by the SCC in RJR-MacDonald. The moving party must first establish, on a preliminary assessment of the merits of its case, that there is a serious issue to be tried; this generally means that the underlying action or application is neither frivolous nor vexatious (RJR-MacDonald at pp 334-335, 348). However, an elevated or heightened threshold may apply in certain particular circumstances, such as when a mandatory interlocutory injunction is sought. Second, the moving party must show that it will suffer irreparable harm if the interlocutory injunction is not granted. Third, the onus is on the moving party to establish that the balance of convenience, which contemplates an assessment of which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits, favours the granting of the interlocutory relief (R v Canadian Broadcasting Corp, 2018 SCC 5 [CBC] at para 12; see also Robinson v Attorney General of Canada, 2019 FC 876 [Robinson] at paras 56-82; Okojie v Canada (Citizenship and Immigration), 2019 FC 880 [Okojie] at paras 61-93).
[49] At the outset, it is important to underline that an interlocutory injunction is an extraordinary and equitable relief. Moreover, a decision to grant or refuse an interlocutory injunction is a discretionary one (CBC at para 27). Given that an interlocutory injunction is an exceptional remedy, compelling circumstances are required to justify the intervention of the courts and the exercise of their discretion to grant the relief. The burden is on the moving party to demonstrate that the conditions of this exceptional remedy are met.
[50] The RJR-MacDonald test is conjunctive and all three elements of the test must be satisfied in order to grant relief. None of the branches can be seen as an “optional extra” (Janssen Inc v Abbvie Corporation, 2014 FCA 112 [Janssen] at para 19), and a “failure of any of the three elements of the test is fatal” (Canada (Citizenship and Immigration) v Ishaq, 2015 FCA 212 [Ishaq] at para 15). That said, the three prongs of the test are not water-tight compartments, and they should not be assessed in total isolation from one another (The Regents of University of California v I-Med Pharma Inc, 2016 FC 606 at para 27, aff’d 2017 FCA 8; Merck & Co Inc v Nu-Pharm Inc (2000), 4 CPR (4th) 464 (FC) at para 13). However, this does not mean that one of the three compartments can be completely empty and compensated by the other two being filled to a higher level. None of the elements of the test can be entirely left aside to be rescued by the other two.
[51] In Google Inc v Equustek Solutions Inc, 2017 SCC 34 [Google], the SCC reminded that an overarching and fundamental objective animates the RJR-MacDonald test: the motion judge needs to be satisfied that, ultimately, granting the interlocutory injunctive relief is just and equitable, taking into consideration the particular circumstances of the case. The SCC in Google thus reinforces that, in exercising their discretion to grant an interlocutory injunction, the courts need to be mindful of overall considerations of justice and equity, and that the RJR-MacDonald test cannot be simply boiled down to a box-ticking exercise of the three components of the test. I must therefore assess whether, in the end, granting the interlocutory injunction sought by the Five Nations in their motion would ultimately be “just and equitable in all of the circumstances of the case”, which will “necessarily be context-specific” (Google at para 25).
[52] I add that the courts have repeatedly considered that the applicable test for interlocutory injunctions is the same as the test governing the granting of stays of proceedings (Manitoba (AG) v Metropolitan Stores Ltd, [1987] 1 SCR 110 at para 30; Toronto Real Estate Board v Commissioner of Competition, 2016 FCA 204 at para 11; Janssen at paras 12-17; Glooscap Heritage Society v Canada (National Revenue), 2012 FCA 255 [Glooscap] at para 4; International Charity Association Network v Canada (National Revenue), 2008 FCA 114 at para 5). No distinction therefore needs to be made between the principles developed for interlocutory stays or for interlocutory injunctions, and they are equally applicable in both contexts.
[53] A motion for an interlocutory injunction like this one ultimately turns on its facts. When all the circumstances are considered, the motion materials and the evidence must convince me that, on a balance of probabilities, the three components of the test are met and that it is just and equitable to issue an injunction. I underline that, as the SCC stated in FH v McDougall, 2008 SCC 53 [McDougall], there is only one standard of proof in civil cases in Canada, and that is proof on a balance of probabilities (McDougall at para 49). The only legal rule in all cases is that “evidence must be scrutinized with care by the trial judge” to determine whether it is more likely than not that an alleged event occurred or is likely to occur (McDougall at para 45). Evidence “must always be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test” (McDougall at para 46).
B. Preliminary remarks
[54] Before turning to the requirements of the RJR-MacDonald test, the specific injunctive relief sought by the Five Nations in this case calls for two preliminary remarks. These observations do not fit squarely within one of the three components of the RJR-MacDonald test, and I consider that it is better to deal with them at the outset, before considering the test itself.
[55] The remedy sought by the Five Nations in this case is labelled as an “interim or interlocutory injunction.” The injunction motion asks the Court for an order “enjoining the Minister from opening or continuing the opening” of the commercial and/or the recreational fisheries for AABM Chinook “without allowing” the Five Nations to continue fishing commercially for at least an additional 5,000 pieces. It is therefore a recourse having a dual dimension: a prohibitive injunction linked to a request mandating a specific course of action by the Minister. The conclusion seeking an additional allowance of 5,000 AABM Chinook is the key element of the recourse and the essence of what the Five Nations want to obtain. I note that no alternative conclusions or remedy have been mentioned in the injunction motion or voiced by the Five Nations in their submissions before this Court.
[56] As formulated, the Five Nations’ injunction motion raises two fundamental problems which, in light of the overarching exceptional nature of interlocutory injunctive reliefs, are sufficient reasons to refrain from exercising my discretion in favour of the Five Nations and to dismiss the motion. First, the injunction motion goes beyond and differs from what is sought by the Five Nations in their underlying judicial review, in terms of the remedy itself and of the “established aboriginal right” invoked. Second, the main relief sought is a remedy in the nature of an order of mandamus, as opposed to an interlocutory injunctive relief.
(1) The scope of the injunction sought
[57] In their injunction motion, the Five Nations are asking for a remedy that goes beyond what they are actually seeking in their underlying application for judicial review. This is not what interlocutory injunctions are intended to accomplish.
[58] One should not lose sight of the fundamental nature of an injunction and its relation to a cause of action or an application. The right to obtain an interlocutory injunction is merely ancillary and incidental to a pre-existing cause of action or application. An injunction does not have an independent life of its own but is instead a remedy attached to an underlying action or application. As the SCC reminded in CBC, an injunction is generally “a remedy ancillary to a cause of action” [emphasis in original] (CBC at para 24, citing Amchem Products Inc v British Columbia (Workers’ Compensation Board), [1993] 1 SCR 897 at p 930). Mr. Justice Sharpe (writing extrajudicially) echoed this principle when he noted that “[i]nterlocutory injunctions are ‘a prophylactic measure associated directly with the ongoing case’ whereas ‘permanent injunctions are of a different order and amount to a final adjudication of rights’” (Robert Sharpe J., Injunctions and Specific Performance, 4th ed (Toronto: Canada Law Book, 2012) [Sharpe] at paras 1.40 and 1.60). That is, an interlocutory injunction is a preservative and precautionary remedy intimately linked to an on-going matter, be it an action or an application.
[59] Given the accessory nature of interlocutory injunctions, and the direct connection they must have with an underlying action or application, the courts will be hesitant to use their discretion to grant such an exceptional relief when a moving party, by way of an interlocutory injunction, asks for more relief and remedy than what it is seeking in the underlying action or application. Put differently, it will hardly be just and equitable for a court to issue an interlocutory injunction if the moving party is in fact claiming more, as interlocutory relief, than what it is asking the court in its underlying action or application.
[60] This is what the Five Nations are attempting to obtain through this injunction motion. The main mandatory relief they are seeking (i.e., the allocation of 5,000 additional AABM Chinook) is not contemplated in their underlying judicial review. In addition, in support of such expanded relief, they are invoking a right which, in view of its terms, differs from and expands beyond the Aboriginal Rights referred to in their underlying application.
[61] The Five Nations do not have any mandatory conclusions in their underlying application of judicial review. They are not seeking conclusions compelling the Minister to allow them to continue fishing commercially for at least a certain additional amount of AABM Chinook, or in fact for any particular species of fish. Nor are they asking the Court to modify the Fishery Management Plan or to amend it in order to be granted specific allocations or quantities of fish. I further observe that the Five Nations are not seeking a judicial review of DFO’s late July 2019 decision which refused their specific request for a new allocation of 5,000 AABM Chinook in the middle of the season.
[62] Pursuant to their judicial review application, the Five Nations are only asking the Court to declare that the Fishery Management Plan or portions of it fail to offer them the opportunity to exercise their Aboriginal Rights in a manner that remedies some or all of the Unjustified Infringements or that is otherwise consistent with the Humphries Judgment. They are also asking for an injunction enjoining the Minister from enforcing some or all of the Fishery Management Plan against them or from authorizing or opening other fisheries (recreational, general commercial or both) that are inconsistent with or given priority over the Five Nations’ Aboriginal Rights. But nowhere are they asking the Court to compel the Minister to do what they are seeking to obtain at an interlocutory stage.
[63] In the same vein, the injunction motion relates to one specific species of fish, namely, AABM Chinook, and rely on an alleged “established aboriginal right” to continue fishing commercially for a certain minimum quantity of that specific species. Again, this alleged aboriginal right differs from the Aboriginal Rights described in the underlying application for judicial review. The Aboriginal Rights expressly referred to in support of the application for judicial review are the Aboriginal Rights as they are defined and described in the Humphries Judgment. As indicated at paragraph 5 of the 2018 Order, these are rights to fish and sell fish commercially in the context of a non-exclusive, small-scale, artisanal, local, multi-species fishery. These rights, as currently defined, are not attached to a specific species or quantity of fish, or sliced up by species.