Calwell Fishing Ltd. v. Canada

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

This case was brought by a group of fish packer owners whose businesses declined to the point where they were no longer economically viable. They sought a declaration based upon the common law doctrine of "taking". They argued that the state cannot take property without compensation except where such taking is supported by clear unambiguous statutory language. They submitted that a series of regulatory changes from the early 1980s up to the 2000s, including the buy-back of licences, fleet reduction, and commencement and enhancement of the Aboriginal Fisheries strategy eliminated available work for their packers. The Plaintiffs noted that during the period in question a number of fishing vessel owners and licence holders received compensation from the Government and question why no such compensation was offered to packers. In a decision rendered 11 March 2016 (2016 FC 312) (digested on this webpage) the Federal Court concluded that the Plaintiffs had not established "on a balance of probabilities, that the loss of their packing business was a direct result of government action."

In a subsequent hearing to determine costs, the Plaintiffs were successful in obtaining an order that each party bear their own costs on the following basis:

1)Rule 400(3) of the Federal Court Rules provides that the Court may consider whether the public interest in having a proceeding justifies a particular award in costs.

2)A losing party who raises a serous legal issue of public importance will not necessarily bear the other party’s costs;

3)The case explored the constraints on powers of the Minister of Fisheries and Oceans, as a steward of the fisheries, which requires a balancing of different public and private interests;

4)The impact of such issues extended beyond the parties to the action;

5)The issues were not cut and dry;

6)The Plaintiff’s did not have a defined pecuniary interest in the outcome, apart from reliance upon the Crown to do the honourable thing if they obtained their declaration;

7)Altruism and having little to gain financially work better than the pecuniary interest test;

8)The question of whether public access to a common property resource is “property” that can be subject to a regulatory taking is an issue that has not been previously resolved by a Court, and therefore the action was novel.