This case involves a statement of claim issued in the Prince Edward Island Supreme Court by the Government of Prince Edward Island against the Government of Canada claiming a series of declarations with respect both to the constitutionality of s. 7 of the Fisheries Act and a the validity of a series of historical management decisions of the Minister of Fisheries.
In refusing to strike the statement of claim, the trial court (2005 PESCTD 57) made a number of findings including the following: (1) It is not "plain and obvious" that the words "absolute" in s. 7 of the Fisheries Act are unconstitutional; (2) the jurisdiction of the Federal Court does not oust the jurisdiction of the Superior Court; and (3) With respect to the public trust argument, "[i]f a government can exert its right, as guardian of the public interest, to claim against a party causing damage to that public interest, then it would seem that in another case, a beneficiary of the public interest ought to be able to claim against the government for a failure to properly protect the public interest (para 30).
Upon appeal the Government of Canada, the Prince Edward Island Court of Appeal the court held that
The part of the statement of claim with respect to the constitutional challenge to s.7 of the Fisheries Act, supra is struck out as disclosing no reasonable cause of action. The claim for breach of the Terms of Union also discloses no reasonable cause of action. The Supreme Court of Prince Edward Island has no jurisdiction to hear the s.36 constitutional claim, the s.15 Charter claim or the breach of public trust claim. The appeal is therefore allowed.
Leave to appeal to the Supreme Court of Canada was denied at [2007] S.C.C.A. no. 97 without reasons.