Focus On

FISHING - Licensing and registration - License types - Commercial fishery - Constitutional proceedings - Practice and procedure - Courts - Jurisdiction

Wednesday, April 11, 2018 @ 8:29 AM  

Lexis Advance® Quicklaw®
Motion by the respondent Attorney General of Canada for summary judgment. The applicant Robinson was a fisherman who had an owner-operator license to fish lobster in an area located on the northwest coast of Nova Scotia. The applicable regulations and policies required the license-holder to personally fish the license. Robinson did so until such time as his medical condition prevented him from doing so. In 2009, Robinson requested a substitute operator authorization pursuant to section 11(11) of the Commercial Fisheries Licensing Policy for Eastern Canada, 1996 (Policy). His request was approved that year and in subsequent years. However, in 2015, Robinson was advised that any further requests for a substitute would not be approved. His appeal of the matter was dismissed. Robinson then applied to the Court for an order declaring that section 11(11) of the Policy discriminated against disabled fishermen and was contrary to section 15(1) of the Canadian Charter of Rights and Freedoms (Charter) and could not be saved by section 1 of the Charter. He also sought a declaration that the Minister of the Department of Fisheries and Oceans’ “absolute discretion” to issue fishing licenses, referred to in section 7 of the Fisheries Act, was subject to and limited by section 15 of the Charter. The respondent took the position that Robinson’s pleadings were clearly unsustainable as the first issue raised in his claim was a matter in the exclusive jurisdiction of the Federal Court. The respondent further submitted that for the second issue raised, the Federal Court was the forum conveniens. Robinson disagreed and submitted that the Supreme Court would have at least concurrent jurisdiction in relation to the first issue raised in his claim.

HELD: Motion allowed. Robinson’s claim was framed as a review of a policy of a department of the federal government. Robinson’s claim sought to attack the manner in which the Minister’s decisions were made in the area of substitute operators for disabled fishermen. The legislation permitting such substitutes was not being challenged and the issue therefore fell squarely within the exclusive jurisdiction of the Federal Court. As a result, the Supreme Court was without jurisdiction with respect to the first issue raised by Robinson. Since the first and second issues were intertwined and related, the convenient forum for the second issue was clearly the Federal Court.

Robinson v. Canada (Attorney General), [2018] N.S.J. No. 60, Nova Scotia Supreme Court, D. Boudreau J., February 26, 2018. Digest No. TLD-April92018005