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FISHING - License types - Commercial fishery - Conditions

Wednesday, March 20, 2019 @ 8:17 AM  


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Appeal by Elson from a decision dismissing his application for judicial review of a decision of the Minister of Fisheries and Oceans. The Department of Fisheries informed the appellant, a licence holder, that he would not be eligible for a replacement licence unless he terminated the controlling agreement pursuant to which he was a bare trustee of the licence for a corporation. The Minister denied the appellant’s request for an exemption from the Policy for Preserving the Independence of the Inshore Fleet in Canada’s Atlantic Fisheries. The appellant had made submissions claiming an exemption because of financial hardship he would suffer if the controlling agreement was terminated. He had not provided specific details of his financial hardship. Because of the Minister’s decision, the appellant was no longer eligible to obtain a fishing licence for the inshore fishery. The Federal Court Judge found the Minister had fettered his discretion by not considering that it was open to him to afford the relief sought other than by way of the Policy but that it would have been open to the Minister to refuse to issue the licence to the appellant based on a consideration of the Policy and in his absolute discretion.

HELD: Appeal dismissed. Reasonableness was the applicable standard in reviewing the Minister’s decision, including whether he fettered his discretion. The Minister’s failure to refer to his discretion under s. 7 of the Fisheries Act was not sufficient to rebut the presumption that he reviewed all the record and considered whether to exercise his broad discretion under that section to grant the appellant a licence. The Federal Court judge erred in finding the Minister fettered his discretion. The absence of specified criteria to justify an exemption from the Policy did not lead to a conclusion that the appellant was not treated fairly. The appellant’s failure to establish financial hardship did not mean he was treated unfairly. The Minister had not prejudged the matter to the point where any representations made by the appellant were futile. His reasons were adequate. The Minister’s power to issue licences to exploit the fisheries resource included the authority to ascertain the identity of the person who would be exploiting the resource as a result of the issuance of a licence. The Policy ensured that the person who applied for the licence was the person who would benefit from the exploitation of the fisheries resource that the licence permitted such person to catch. Although the Policy restricted an individual’s right to enter into certain contracts, it was not, in pith and substance, a restriction or limitation on property and civil rights in a province nor was it a matter of merely local or private nature in the province. The Minister’s decision was not based on irrelevant considerations.

Elson v. Canada (Attorney General), [2019] F.C.J. No. 140, Federal Court of Appeal, J. Gauthier, W.W. Webb and M.J.L. Gleason JJ.A., February 8, 2019. Digest No. TLD-March182019006