Arsenault v. Canada

In Fish Cases, Judicial Review/Crown Liability on (Updated )

This case involved a group of traditional crabbers from Prince Edward Island who who were promised financial assistance totalling 37.4 million to offset a 10.85 per reduction in their share of the total allowable catch that was re-allocated to aboriginal fishers pursuant to the Marshall Response initiative. This compensation package was incorporated into the Management Plan and and licences were issued. However, when the fishers sought to claim their share of the financial assistance they were told they would not receive it unless they signed a general form of release that had not been referred to in the management plan.

The issue in the ensuing application for mandamus was "whether the financial assistance announced in the Management Plan forms part of the Minister’s discretionary decision under the Act and if so, whether the Minister has a public legal duty to implement the Plan as announced" [para. 29 trial decision].

In deciding the above stated issue in favour of the applicant fishers and making an order of mandamus requiring the payment of compensation without the need for a release, the trial Court concluded that "following the Minister’s approval of the Management Plan, his discretionary power was spent and, as a result, he was legally bound to implement it" [para. 19 of appeal decision].

In overturning the trial Court decision and allowing the Crown appeal, the majority appeal judgement stated as follows:

I therefore respectfully believe that Blanchard J. erred in law or that he proceeded on a wrong principle of law in finding that the Minister’s discretion was spent when he approved the Management Plan. The Management Plan is an expression of policy, not a decision to grant permits under section 7, and the Minister’s discretion is thus not exhausted by the approval thereof. The Minister was not bound by his policy and he could, at any time, make changes thereto. Consequently, whether the Minister turned his mind to a release of liability condition when he issued the Management Plan or whether it was an afterthought resulting from suggestions made by Department officials is, in my view, of no help to the respondents, as the Minister could not fetter his discretion when he issued the Management Plan. [para 43]

In a minority concurring decision, Pelletier J.A. was of the view that the Management Plan should be viewed as a series of different decisions as opposed to one single decision. After reviewing the test for granting mandamus, Pelletieir J.A. concluded as follows:

The crabbers had no legal right to any particular amount of quota. This flows from the nature of fishing licences, in respect of whose issuance the Minister has the broadest discretion: see Comeau’s Sea Foods Ltd v. Canada (Minister of Fisheries and Oceans), 1997 CanLII 399 (S.C.C.), [1997] 1 S.C.R. 12, [1997] S.C.J. No.5, at paragraph 49. Consequently, if there is no vested right to a given quota, there can be no right to compensation arising purely from the fact of loss of quota. As a result, the decision to offer compensation for lost quota is not one which is based on a statute or a regulation. In fact, the crabbers allege in their action that their right to compensation is a matter of contract. The exercise of the minister’s discretion to issue fishing licences with reduced quota under section 7 of the Act did not result in a public legal duty to pay compensation for the lost quota. There being no public legal duty, the crabbers are not entitled to an order of mandamus.

Editor’s note: It is useful that in this and several other recent cases, the Federal Court of Appeal has quoted at length the test to be applied to the review of discretionary decisions from Maple Lodge Farms v. Government of Canada [1982] 2 S.C.R. 2. This is useful because this test has been misunderstood by some courts as a result of an unfortunate choice of words by the Supreme Court of Canada at paragraph 36 of Comeau’s Sea Foods Ltd. v. Canada [digested herein], which could be interpreted as meaning that reliance upon irrelevant and extraneous considerations, avoiding arbitrariness and acting in good faith is part of the natural justice analysis. However a review of Thomson v. Minister of Fisheries at footnote 9 [link] referred to at paragraph 36 of Comeau reveals that the Court was in fact relying upon the test as set out in Maple Lodge Farms, which makes it clear that these matters are to be considered in addition to the question of the natural justice (see quote at paragraph 38 of Arsenault).