Robinson v. Canada (Attorney General)

Robinson v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2019-06-28
Neutral citation
2019 FC 876
File numbers
T-562-19
Notes
A correction was made on October 24, 2019.
Decision Content
Date: 20190628
Docket: T-562-19
Citation: 2019 FC 876
Ottawa, Ontario, June 28, 2019
PRESENT: The Honourable Mr. Justice Gascon
BETWEEN:
DANA ROBINSON
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
ORDER AND REASONS
I. Overview
[1] The applicant, Mr. Dana Robinson, is a fisherman who holds an owner-operator licence authorizing him to fish lobster in Nova Scotia. He brings a motion, pursuant to section 18.2 of the Federal Courts Act, RSC 1985, c F-7 [FC Act] and Rule 373(1) of the Federal Courts Rules, SOR/98-106 [Rules], to be granted two interlocutory reliefs. First, Mr. Robinson asks the Court to stay a decision issued in March 2019 by the Deputy Minister of the Department of Fisheries and Oceans Canada [DFO] denying his request for the “continued use of a medical substitute operator authorization” for his lobster fishing licence [Decision]. Second, he seeks a mandatory interlocutory injunction ordering the DFO to authorize him to use a medical substitute operator [MSO]. Both reliefs are sought until the final determination of the application for judicial review Mr. Robinson has filed against the Decision on April 4, 2019.
[2] The purpose of a MSO authorization is to allow another person to carry out the activities authorized under a fishing licence where the holder of the licence is affected by an illness preventing him or her from personally operating a fishing vessel. In the Decision, the DFO denied Mr. Robinson’s request on the basis that it exceeded the five-year limitation to the use of a MSO imposed by a DFO’s policy, and that no extenuating circumstances warranted making an exception to this policy in the case of Mr. Robinson. In his underlying application for judicial review, Mr. Robinson challenges the Decision refusing his MSO authorization and seeks numerous remedies. These include an order setting aside the Deputy Minister’s Decision on the basis that it is unreasonable because the Deputy Minister failed to acknowledge or consider his constitutionally protected right to be free from discrimination pursuant to subsection 15(1) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].
[3] In this motion, the Court is not tasked with deciding the merits of Mr. Robinson’s underlying application, but with assessing whether or not the requirements of the test governing the issuance of interlocutory injunctive reliefs have been met.
[4] Mr. Robinson submits that he satisfies 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 stays and interlocutory injunctions. He claims that: 1) a serious issue to be tried has been raised in his underlying application; 2) he will suffer irreparable harm if the stay and mandatory interlocutory injunction are not granted; and 3) the balance of convenience, which examines the harm he will suffer compared to the harm done to the DFO, as well as the public interest, favours him.
[5] The Attorney General of Canada [AGC], acting for the DFO, responds that Mr. Robinson has not met any of the three parts of the RJR-MacDonald test. The AGC adds that a MSO authorization is a condition attached to a fishing licence, that Mr. Robinson has already been authorized to use a MSO from 2009 up to July 31, 2019, and that any further authorization would render the underlying judicial review moot and fetter the absolute ministerial discretion to issue a fishing licence under the Fisheries Act, RSC 1985, c F-14 [Fisheries Act], which occurs on a yearly basis.
[6] For the reasons that follow, Mr. Robinson’s motion will be granted in part. Further to my review of the parties’ submissions and of the evidence, I am satisfied that Mr. Robinson has met the applicable conditions for the issuance of the two interlocutory reliefs he is seeking. I acknowledge that, since Mr. Robinson will not need a further MSO authorization until the resumption of the applicable lobster fishing season on October 15, 2019, his motion may appear premature at this stage. However, I find no grounds to dismiss the motion for prematurity. I instead conclude that, when all the circumstances of this case are factored in, it is just and equitable to order a stay of the Decision and the issuance of a temporary MSO authorization at this juncture, albeit only until the earliest of the determination of his underlying application for judicial review or the end of calendar year 2019. In parallel, Mr. Robinson shall nonetheless take the necessary steps to proceed with diligence on his application for judicial review.
[7] In reading these reasons, one must keep in mind that interlocutory reliefs are issued following a summary review of the issues, and on the basis of partial evidence. The stay and mandatory interlocutory injunction I am ordering today are not a definitive resolution to Mr. Robinson’s dispute with the DFO. Nor are these reasons intended to provide answers to all of the questions raised by Mr. Robinson’s application for judicial review.
II. Background
A. Factual context
[8] Mr. Robinson is a 58-year-old fisherman. He has been a fisherman all of his working life. He holds several fishing licences, including an owner-operator licence [Licence] which authorizes him to fish lobster on the Southwest coast of Nova Scotia, in an area known as Lobster Fishing Area [LFA] 35. He has held his Licence since 2007 and has fished it personally, on a full-time basis, until a medical condition prevented him from doing so.
[9] In 2009, Mr. Robinson began having medical problems related to his legs. The medical reports indicate that Mr. Robinson suffers from venous insufficiency with leg pain when standing. His medical condition makes it impossible for him to stand for more than a few hours at a time without suffering from throbbing and swelling in his legs. In 2011, Mr. Robinson underwent surgery in an attempt to resolve his medical problems. While the surgery initially helped relieve some of the pain, the procedure has not cured his medical condition, and Mr. Robinson continues to experience pain after a few hours of standing. Because of his condition, he is unable to meet the daily physical demands of being on his fishing vessel, the “Sea Devil”, on a full-time basis.
[10] Since he could not be present on his vessel due to his medical condition, Mr. Robinson requested and received from the DFO the authorization to use a MSO. Despite his physical inability to remain personally on-board his vessel, Mr. Robinson has however maintained full control over his vessel’s operations. Even with a MSO, he indeed continues to make most of the operational decisions related to his fishing vessel, including negotiating the wharf price of the catch, arranging bait and fuel purchases, and managing the fishing operation’s financial affairs. He employs three full-time seasonal crew members to assist him in fishing his Licence: two deck hands and a captain who operates his vessel.
[11] In October 2015, Mr. Robinson received a letter from the DFO informing him that his MSO authorization request for the fishing season ending on July 31, 2016 was extended beyond the five-year maximum period to accommodate a licence holder affected by an illness, as set out in the DFO’s Commercial fisheries licensing policy for Eastern Canada, 1996 [Policy]. While the DFO nonetheless granted Mr. Robinson a MSO authorization for the 2016 fishing season, the letter also put him on notice that future requests for a MSO exceeding the timeframe mentioned in the Policy would no longer be approved.
[12] In October 2016, Mr. Robinson appealed this DFO’s decision to the Maritimes Region Licensing Appeal Committee [MRLAC]. In March 2017, Mr. Robinson received a letter from MRLAC advising him that his request for an exception to the Policy and for a MSO to fish for the current season (i.e., until July 31, 2017) had been approved. The letter however again advised Mr. Robinson that his request for an extension beyond the current season was denied. Mr. Robinson subsequently appealed this MRLAC’s decision to the Atlantic Fisheries Licensing Board [AFLAB], seeking to have the “continued use” of a MSO authorization, with no specific end date or fishing season. In his appeal, Mr. Robinson invoked a number of grounds to challenge the DFO’s refusal, including that the five-year limit in the Policy and the MRLAC’s decision made pursuant to it were arbitrary, unjust and unconstitutional for violating his right to equality under section 15 of the Charter.
[13] On March 6, 2019, on the recommendation of the AFLAB, the Deputy Minister of the DFO denied Mr. Robinson’s appeal and his request for the “continued use” of a MSO authorization. This is the Decision that is the subject of Mr. Robinson’s application for judicial review. The Decision was made pursuant to subsection 23(2) of the Fishery (General) Regulations, SOR/93-53 [Regulations] and subsection 11(11) of the Policy. In the Decision, the Deputy Minister mentioned that the financial hardship and succession plan invoked by Mr. Robinson were not extenuating circumstances justifying an exception to the five-year maximum period. The Decision did not expressly consider the Charter challenge, and the reasons made no mention of Mr. Robinson’s medical condition, or his counsel’s submissions to the AFLAB regarding the unconstitutionality of the Policy.
[14] More than two and a half years have now gone by since Mr. Robinson has filed his initial appeal in October 2016. However, throughout these proceedings before the DFO, Mr. Robinson has been permitted to continue to use a MSO to fish his Licence, and the DFO has thus effectively granted him successive MSO authorizations for every lobster fishing season since 2009, up to the current fishing season ending on July 31, 2019.
[15] I pause to observe that, contrary to most other LFAs, the lobster fishing season in LFA 35 is a split season covering two periods, from March 1 to July 31 and from October 15 to December 31 of each year. In his written submissions and in his affidavit, Mr. Robinson states that the “2019 fishing season” for LFA 35 first covers March 1 to July 31, 2019, with a second period starting on October 15, 2019 to end on December 31, 2019. As conceded by counsel for Mr. Robinson at the hearing before this Court, this statement is incorrect. The fishing season for LFA 35 indeed covers two periods, but over two different calendar years: the first period is in the fall of any given year while the second period takes place in the spring and summer of the following calendar year. Therefore, the “2019 fishing season” for LFA 35 extends from October 15 to December 31, 2018, and continues from March 1 to July 31, 2019. The upcoming October 15 to December 31, 2019 fishing period will thus be part of the 2020 fishing season in LFA 35.
[16] Another important contextual element needs to be mentioned. I heard Mr. Robinson’s motion shortly after another judge of this Court issued a judgment in a very similar case, Martell v Canada (Attorney General), 2019 FC 737 [Martell], where Mr. Martell – who was represented by the same counsel as Mr. Robinson – had also sought interlocutory reliefs against the DFO further to a refusal to issue a MSO authorization because of the five-year maximum period. In Martell, Madam Justice Roussel granted the stay and mandatory interlocutory injunction sought by Mr. Martell for the 2019 lobster season, albeit in another LFA having different fishing periods. Needless to say, Mr. Robinson relied heavily on this precedent in his oral submissions before me and invited me to adopt the same analysis and reasoning in my decision.
B. The DFO’s owner-operator policy
[17] The DFO’s owner-operator policy which forms the background of Mr. Robinson’s motion is aptly described by Madam Justice Roussel in Martell, at paragraphs 6 to 11. Its main features can be summarized as follows.
[18] The owner-operator policy was formally adopted in 1989 across the entire Eastern Canada inshore and its key elements were incorporated into the Policy. As stated in the affidavit of Mr. Morley Knight filed by the AGC, the goal of the Policy is to maintain an economically viable inshore fishery by keeping the control of licences in the hands of independent owner-operators in small coastal communities, and to allow them to make decisions about the licence issued to them. To achieve this, the owner-operator policy requires licence holders to personally fish the licences issued in their name. This means that the licence holder is required to be on board the vessel authorized to fish the licence.
[19] Subsection 23(2) of the Regulations creates an exception to the owner-operator policy. It provides that, where a licence holder or operator is unable to engage in the activity authorized by the licence due to “circumstances beyond the control of the holder or operator”, a fishery officer or a DFO employee engaged in the issuance of licences can authorize another person (i.e., a substitute operator) to carry out those activities. The “circumstances beyond the control” of a licence holder or operator are not defined in the Regulations.
[20] Over time, the DFO developed policy guidance with respect to situations that may be considered circumstances that are beyond the control of the licence holder. Echoing the language used in the Regulations, subsection 11(10) of the Policy restates that, “where, because of circumstances beyond his control, the holder of a licence or the operator named in a licence is unable to engage in the activity authorized by the licence or is unable to use the vessel specified in the licence, a fishery officer or other authorized employee of the Department may, on the request of the licence holder or his agent, authorize in writing another person to carry out the activity under the licence or authorize the use of another vessel under the licence”. At the hearing, counsel for the AGC mentioned that examples of circumstances beyond the control of a licence holder contemplated by this general provision include vacation time or the loss of a vessel further to a fire.
[21] Subsection 11 (11) provides further guidance in instances where the licence holder invokes illness as a circumstance beyond his or her control. Pursuant to that provision, the Policy limits the designation of a substitute operator to a total period of five years where the circumstances beyond the control of the licence holder are of a medical nature. Subsection 11(11) reads as follows:
(11) Where the holder of a licence is affected by an illness which prevents him from operating a fishing vessel, upon request and upon provision of acceptable medical documentation to support his request, he may be permitted to designate a substitute operator for the term of the licence. Such designation may not exceed a total period of five years.
(11) Si le titulaire d'un permis est affecté d'une maladie qui l'empêche d'exploiter son bateau de pêche, il peut être autorisé, sur demande et présentation de documents médicaux appropriés, à désigner un exploitant substitut pour la durée du permis. Cette désignation ne peut être supérieure à une période de cinq années.
[22] In 2008, the DFO introduced flexibility in the application of the five-year limit set out in subsection 11(11) in order to respond to the global economic downturn, and in the hopes of enhancing economic support for the industry. In 2015, the DFO resumed strict compliance of the five-year time limit following concerns expressed by certain licence holders and their representatives that the DFO’s substitute operator designations were being abused by some licence holders. The DFO thus started sending letters to those who had reached or approached the five-year maximum period to advise them that they would no longer be authorized to use a MSO beyond that time limit. The October 2015 letter which is at the source of Mr. Robinson’s application was sent to him in that context.
III. Analysis
A. Preliminary matters
[23] Several preliminary matters must be addressed before dealing with the main issue in dispute in Mr. Robinson’s motion. They concern claims or submissions made by the AGC in relation to: 1) the availability of injunctions against the Crown; 2) the need for a notice of constitutional questions; 3) the nature of the remedies sought by Mr. Robinson; and 4) the possible fettering of discretion. Other brief remarks must also be made on the questions of judicial comity and judicial notice. Each will be dealt in turn.
(1) Injunctions against the Crown
[24] The AGC claims in his written submissions that section 22 of the Crown Liability and Proceedings Act, RSC 1985, c C-50 [CLPA] prohibits injunctions against the Crown, and that Mr. Robinson’s request for interlocutory injunctive remedies should be denied on that basis. The AGC points to this Court’s decision in Shubenacadie Indian Band v Canada (Attorney General), [2000] FCJ No 1445, 2000 CarswellNat 2075 [Shubenacadie], where it was determined that no interim injunctive relief was available against the Crown (Shubenacadie at paras 27, 78). The injunction sought in that case was to prevent the Minister of Fisheries and Oceans [Minister] from enforcing legislation related to lobster fishing (Shubenacadie at para 67).
[25] As I indicated at the hearing, the AGC’s argument on this point cannot succeed. The FC Act expressly provides that the Court can make interim orders on an application for judicial review. The relevant portions of sections 18, 18.1 and 18.2 of the FC Act read as follows:
Extraordinary remedies, federal tribunals
Recours extraordinaires : offices fédéraux
18 (1) Subject to section 28, the Federal Court has exclusive original jurisdiction
18 (1) Sous réserve de l’article 28, la Cour fédérale a compétence exclusive, en première instance, pour :
(a) to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal; and
a) décerner une injonction, un bref de certiorari, de mandamus, de prohibition ou de quo warranto, ou pour rendre un jugement déclaratoire contre tout office fédéral;
[…]
[…]
Powers of Federal Court
Pouvoirs de la Cour fédérale
18.1 (3) On an application for judicial review, the Federal Court may
18.1 (3) Sur présentation d’une demande de contrôle judiciaire, la Cour fédérale peut :
(a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or
a) ordonner à l’office fédéral en cause d’accomplir tout acte qu’il a illégalement omis ou refusé d’accomplir ou dont il a retardé l’exécution de manière déraisonnable;
[…]
[…]
Interim orders
Mesures provisoires
18.2 On an application for judicial review, the Federal Court may make any interim orders that it considers appropriate pending the final disposition of the application.
18.2 La Cour fédérale peut, lorsqu’elle est saisie d’une demande de contrôle judiciaire, prendre les mesures provisoires qu’elle estime indiquées avant de rendre sa décision définitive.
[26] In Attawapiskat First Nation v Canada, 2012 FC 146, this Court in fact rejected an argument similar to what the AGC pleads here. In that decision, Mr. Justice Phelan concluded that section 22 of the CLPA does not apply where the proceeding is a proper FC Act section 18.1 application for judicial review. At paragraphs 39 and 44, he stated:
[39] This Court has in several cases, including Musqueam Indian Band v Canada (Governor in Council), 2004 FC 579, ordered injunctive relief in the context of s. 18.1 Federal Courts Act judicial review proceedings. The prohibition of injunctions against the Crown is a long held common law principle which predates the more specific language of the Federal Courts Act.
[…]
[44] Therefore, the Court does have the jurisdiction under s. 18.1 and s. 18.2 of the Federal Courts Act to issue injunctive relief against the Respondent in the appropriate circumstances. This conclusion does not foreclose any of the Respondent’s arguments regarding the appropriateness of a s. 18.1 proceeding being advanced at the judicial review hearing.
[27] Indeed, in Shubenacadie, the Court did not mention subsection 22(1) of the CLPA as a reason for denying the injunction.
[28] Furthermore, as pointed out by counsel for Mr. Robinson, there are exceptions to the Crown’s immunity from injunctive relief, and one of these relates to claims for relief under the Charter (Khadr v Canada, 2005 FC 1076 at para 20).
[29] At the hearing, counsel for the AGC did not press the argument and ultimately agreed that interlocutory injunctions could be sought against the Crown. The AGC however contends that the requirements and preconditions for issuing one are simply not met in the case of Mr. Robinson. This will be addressed below in my decision.
(2) Notice of constitutional questions
[30] The AGC also contends, in his written submissions, that Mr. Robinson has not filed a notice of constitutional question, as required by section 57 of the FC Act. Section 57 provides that such notice must be served on the AGC and the attorney general of each province, at least ten days before the constitutional question is to be argued, when a party seeks to have an Act of Parliament or regulations made under such an Act “judged to be invalid, inapplicable or inoperable”. In support of his position, the AGC relies on Husband v Canadian Wheat Board, 2006 FC 1390 at para 12, aff’d 2007 FCA 325, where the Court held that a notice of constitutional question was required before challenging on judicial review a federal board policy.
[31] At the hearing, counsel for the AGC however agreed that such notice was not needed in the context of Mr. Robinson’s motion for interlocutory reliefs, as the objective of section 57 of the FC Act is to preclude a Court from making a finding that a statute or regulation is invalid, inapplicable or inoperable on constitutional grounds (including the Charter) without a prior notice of constitutional question. It is clear that no such conclusions are sought by Mr. Robinson on his motion for a stay and mandatory interlocutory injunction. It is axiomatic that there is no need for a section 57 notice of constitutional question in a case where the judicial remedy sought is something other than a judgment that a statute or regulation is invalid, inapplicable or inoperable on constitutional grounds (Canada (Canadian Heritage) v Mikisew Cree First Nation, 2004 FCA 66 at paras 76-79, rev’d on other grounds 2005 SCC 69).
[32] At the hearing, counsel for Mr. Robinson indicated that such notice of constitutional questions would however be given before the underlying application for judicial review itself will be heard and argued, in light of the declaratory remedies sought by Mr. Robinson in his application. The Court expects that, should such notice be given, the requirements of section 57 of the FC Act will be completed by Mr. Robinson and his counsel in a timely manner, so that no postponement or adjournment of the hearing on the merits of his judicial review will have to be contemplated by the Court on the ground that the provincial attorney generals would need more time to prepare their submissions on the constitutional questions at issue.
(3) Remedies sought by Mr. Robinson on the motion
[33] Two remarks need to be made on the nature of the remedies sought by Mr. Robinson on his motion.
[34] First, in his notice of motion and in his written submissions, Mr. Robinson presented his request for an interlocutory mandatory injunction ordering the DFO to authorize him to use a MSO in the interim period as an “alternative” relief. Counsel for Mr. Robinson recognized at the hearing that this was incorrect and that both the stay and the mandatory interlocutory injunction were main reliefs sought in his motion. Indeed, in Martell at paragraph 28, Madam Justice Roussel had also come to a similar conclusion.
[35] Granting only a stay of the Decision would not be sufficient to reinstate Mr. Robinson’s MSO and would not be very helpful to Mr. Robinson as it would simply suspend the Decision denying his request for the continued use of a MSO authorization. A stay of the Decision alone would not grant Mr. Robinson the authorization he requires in order to use a MSO after July 31, 2019. In fact, the mandatory interlocutory injunction remedy, which compels action on the part of the DFO, captures the essence of the relief sought by Mr. Robinson in his motion. Consequently, Mr. Robinson agreed that the mandatory interlocutory injunction should not be considered as an alternative relief, but as one of two main interlocutory reliefs he seeks on his motion. This is how I treated it in my decision.
[36] Second, throughout his submissions, the AGC repeatedly argues that granting a mandatory interlocutory injunction in this case will grant Mr. Robinson the relief he is seeking in his underlying application for judicial review, being the authorization to the continued use of a substitute operator. And that this would therefore render his underlying judicial review moot. I do not agree.
[37] I do not dispute that there is a limited overlap between the mandatory interlocutory injunction sought by Mr. Robinson in his motion and one of the remedial orders he seeks in his underlying application for judicial review, as the application includes a request for an order quashing the Decision and replacing it with a decision allowing Mr. Robinson’s request for the continued use of a MSO authorization. However, in addition to seeking an order setting aside the Decision, Mr. Robinson also asks the Court to order numerous other declaratory remedies in his application for judicial review, including orders declaring that subsection 11(11) of the Policy, and specifically the five-year limit for designating a substitute operator, discriminates against fishermen with disabilities and is contrary to subsection 15(1) of the Charter. It is useful to reproduce the first six orders sought by Mr. Robinson in his underlying application. They read as follows:
1. an order quashing the Decision as unreasonable and/or incorrect, and replacing it with a decision allowing the appeal and Mr. Robinson’s continued use of the medical substitute operator authorization;
2. in the alternative to the above order, an order quashing the Decision as unreasonable and/or incorrect, and referring the matter back to the Deputy Minister for reconsideration and directing the Deputy Minister to consider the Applicant’s constitutionally protected rights in arriving at any decision;
3. an order declaring that the Deputy Minister’s decision is discriminatory and contrary to section 15(1) of the Charter;
4. an order declaring that the Deputy Minister’s decision is discriminatory and contrary to the United Nations Convention on the Rights of Persons with Disabilities;
5. an order declaring that section 11(11) of the Policy, and specifically the limit contained herein on the amount of time a disabled or ill license-holder can obtain a medical substitute operator authorization, discriminates against disabled fishers and/or fishers with medical conditions and is contrary to section 15(1) of the Charter;
6. an order declaring that any discretion delegated by the Minister of the Department of Fisheries and Oceans to the Deputy Minister with respect to licensing matters is subject to section 15(1) of the Charter.
[38] As a result, I am satisfied that by ordering the DFO, through its authorized representative, to allow Mr. Robinson to use a MSO for the balance of this calendar year (as will be discussed below in this decision), such mandatory interlocutory relief will not effectively amount to a final determination of the underlying judicial review. Far from it. The remedies sought in the underlying application are different and far more expansive, and several other declaratory remedies will remain to be decided. Even on the issue of the “continued use” of a MSO authorization, given the terms of the Order I am issuing in this decision, Mr. Robinson will have to proceed with his application for judicial review failing which he will be required to seek a new exemption to the application of the Policy for the balance of the 2020 fishing season falling in calendar year 2020, as well as for subsequent fishing seasons.
(4) Limit due to fettering of discretion
[39] This brings me to the issue of the fettering of discretion raised by the AGC. On this front, the AGC argues that granting Mr. Robinson’s motion (and more particularly his request for the “continued use” of a MSO) would fetter the Minister’s statutory discretion to issue a licence under section 7 of the Fisheries Act, which grants him the authority to issue licences for fisheries and fishing. The AGC submits that, according to the Regulations, licences are only valid for a specific period of time and that no vested rights exist beyond that period. Even though licences are routinely renewed, this is not automatic, and no one can claim a “right” to a licence. The fact that licences are renewed as a matter of course does not give any entitlement to a licence holder.
[40] The AGC further explains that the authorization to use a MSO is a condition attached to a licence that is issued annually, and that such conditions are discretionary decisions. According to the evidence before me, MSO authorizations are indeed granted on a yearly basis only, are temporary, and are not approved for more than one year. I note that, on Mr. Robinson’s Licences for calendar year 2019 authorizing a MSO for various parts of the 2019 fishing season, it is specifically mentioned that this permission “is granted as a temporary privilege only”, valid for the duration of the authorized substitute period indicated on the document.
[41] The AGC also submits that, in the case of LFA 35, the 2019 fishing season ends on July 31, 2019, and that the October 15 to December 31, 2019 period falls under the 2020 fishing season, for which no licence has yet been issued to or sought by Mr. Robinson. The AGC thus contends that the Court could not order the mandatory injunctive remedy sought by Mr. Robinson as it would require the DFO to authorize a MSO for which no fishing licence would have been issued. As indicated above, in his motion and in his appeals which led to the DFO’s Decision, Mr. Robinson is seeking what appears to be an open-ended “continued use” of a MSO authorization, as opposed to a MSO authorization limited to a specific fishing period.
[42] I partly agree with the AGC on this issue of a possible fettering of discretion.
[43] I accept that the decision to issue fishing licences is discretionary and belongs to the Minister (Comeau’s Sea Foods Ltd v Canada (Minister of Fisheries and Oceans), [1997] 1 SCR 12 at para 36; Anglehart v Canada, 2018 FCA 115 at paras 26, 28; Malcolm v Canada (Fisheries and Oceans), 2014 FCA 130 [Malcolm] at paras 40-42). Pursuant to section 10 of the Regulations, fishing licences are issued by the Minister for a calendar year and typically expire on December 31 of the year for which they are issued unless otherwise specified. Subsection 11(2) of the Policy further provides that licence renewal and payment of fees is mandatory on a yearly basis in order to retain the privilege to be issued a licence.
[44] I underscore that, in his application for judicial review and in his motion, Mr. Robinson is not asking the Court to order the issuance or renewal of his Licence beyond the end of calendar year 2019, nor is he seeking any conclusion with respect to the Licence itself. The remedies sought strictly concern the MSO authorization attached to the Licence.
[45] In the case of Mr. Robinson, the difficulty flows from the discrepancy between the period covered by his Licence, and the period of the fishing season in LFA 35: while fishing licences are issued for calendar years, the fishing season in LFA 35 covers time periods spreading over two different calendar years. It is true that Mr. Robinson has not sought a licence for calendar year 2020 or for the 2020 lobster fishing season in LFA 35 – which encompasses the fall of 2019 –, and that the Minister has not made a decision in respect of such licence. However, it is not disputed that Mr. Robinson’s Licence is currently valid for calendar year 2019, and that it expires on December 31, 2019. It therefore covers the fall of 2019, when the 2020 fishing season in LFA 35 begins.
[46] I agree with the AGC that, under the current regulatory regime and on the facts of this case, the Court could not impose a remedy relating to a MSO authorization which would implicitly mean or require a renewal and extension of Mr. Robinson’s Licence into 2020. Stated otherwise, the Court could not allow a MSO authorization that would go beyond the duration of the underlying licence for which the MSO would become a condition. A situation where the Court would grant an interlocutory injunction and force the issuance of a MSO authorization for a time period where Mr. Robinson does not yet have a licence would amount to a fettering of the Minister’s discretion. In addition, as I observed above, Mr. Robinson’s motion contains no conclusion or request regarding his Licence. Conversely, since Mr. Robinson’s current Licence only expires on December 31, 2019, there would be no fettering of discretion if the Court were to order the issuance of a MSO authorization for the October 15 to December 31, 2019 period, as such MSO would become a condition attached to the 2019 Licence already issued to Mr. Robinson. Counsel for the AGC indeed acknowledged at the hearing that, since Mr. Robinson’s Licence expires on December 31, 2019, granting a MSO authorization for the period of October 15 to December 31, 2019 would not entail a fettering of discretion, even though the period technically falls in the 2020 lobster season for LFA 35.
(5) Judicial comity
[47] The current case has a particular flavour because of the Martell decision involving similar issues, similar evidence, and the same counsel. While this precedent is not binding upon me, it certainly raises issues of judicial comity. As was described by Mr. Justice Martineau in Alyafi v Canada (Citizenship and Immigration), 2014 FC 952 [Alyafi], the principle of judicial comity aims to prevent the creation of conflicting lines of jurisprudence within the same court and to encourage certainty in the law (Alyafi at para 45; see also Eclectic Edge Inc v Gildan Apparel (Canada) LP, 2015 FC 1332 [Gildan] at para 29). In essence, under the principle of judicial comity, decisions on substantially similar issues rendered by a judge of this Court should be followed by other judges in the interest of advancing certainty in the law.
[48] In Apotex Inc v Allergan Inc, 2012 FCA 308, the Federal Court of Appeal [FCA] discussed the doctrine of judicial comity in the context of patent law and made it clear, at paragraphs 43-44, that the principle however only relates to determinations of law:
[43] […] This doctrine is sometimes described as a modified form of stare decisis, i.e. horizontal rather than vertical (House of Sga'nisim v. Canada (Attorney General), 2011 BCSC 1394, para. 74). Stare decisis requires judges to follow binding legal precedents from higher courts. Although not binding in the same way, the doctrine of comity seeks to prevent the same legal issue from being decided differently by members of the same Court, thereby promoting certainty in the law (Glaxo Group Ltd. v. Canada (Minister of Health and Welfare), [1995] F.C.J. No. 1430, 64 C.P.R. (3d) 65, pp. 67 and 68 (T.D.)).
[44] As a manifestation of the principle of stare decisis, the principle of judicial comity only applies to determinations of law. It has no application to factual findings. As was stated by the Ontario Court of Appeal in Delta Acceptance Corporation Ltd. v. Redman, [1966] 2 O.R. 37, paragraph 5 at page 785 (C.A.):
The only thing in a [j]udge’s decision binding as an authority upon a subsequent [j]udge is the principle upon which the case was decided.
[emphasis added]
[49] The conclusions of law of a judge of this Court will therefore not be departed from by another judge unless he or she is convinced that the departure is necessary and can articulate cogent reasons for doing so. But the doctrine of judicial comity cannot be invoked to trump the judge’s role in assessing the evidence as it unveils before him or her. The existence of a different factual matrix or evidentiary basis between two cases, or situations where different issues are to be decided, can lead to different outcomes (Gildan at para 31).
[50] Counsel for both parties acknowledged at the hearing that the principle of judicial comity applies here as far as the Martell decision is concerned. Counsel for the AGC further agreed that there are no reasons why I should depart from the determinations of law made by Madam Justice Roussel in Martell. However, the AGC submits that the Martell case can be distinguished on its facts. I agree with the AGC that the doctrine of judicial comity cannot lead me to blindly follow and adopt all of the Court’s conclusions in Martell, as the current matter involves slightly different issues, based on a different set of facts. In my decision, I will of course be mindful of the various findings made in Martell, as there is material overlap with the case of Mr. Robinson, but I will assess the situation of Mr. Robinson based on the evidentiary record and arguments before me.
(6) Judicial notice of the Policy
[51] The last preliminary matter I need to address is the Policy.
[52] As I observed at the hearing, despite the fact that the Policy is at the very heart of Mr. Robinson’s motion and application, neither party has filed it as part of their evidence on this motion, as it was not attached to any of the affidavits filed. In Leahy v Canada (Citizenship and Immigration), 2012 FCA 227 [Leahy], the FCA established that courts cannot “normally” take judicial notice of policies or instructional documents (Leahy at para 143). If such policies, documents or administrative guidelines are relevant, they need to be treated similarly to other facts and will normally have to be identified and appended to a supporting affidavit in order for the court to consider them. Since the Policy is only an administrative guideline, as opposed to a law or a regulation, I asked counsel whether I could take judicial notice of the document in this case. At the hearing, counsel for both parties indicated that they did not object and that I could take judicial notice of the Policy even though it was not part of the evidence before me.
[53] It is well-recognized that a court may take judicial notice of facts that are either “(1) so notorious or generally accepted as not to be the subject of debate among reasonable persons; or (2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy” (R v Le, 2019 SCC 34 at para 84, citing R v Find, 2001 SCC 32 at para 48). These two criteria are often referred to as the “Morgan” criteria. The approach will, however, be more nuanced and more flexible when the facts at issue do not play an important role in the disposition of a given case or are not disputed by the parties. For example, in Canadian Broadcasting League v Canada (Canadian Radio-Television and Telecommunications Commission), [1983] 1 FC 182, 1982 CanLII 2945 (FCA)