Donovan v. Canada (Attorney General)

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

This case involved three crab fishers who commenced three separate tort actions against the Crown for failure to renew crab licences. The application’s judge struck all three actions on the grounds that the causes of action involved challenges to ministerial decisions which were matters within the exclusive jurisdiction of the Federal Court.

Upon appeal, one appellant was successful and two were not.

The successful appellant was George Perrot who sold a portion of his fishing enterprise to a third party but retained his supplementary crab licence. In doing so, he alleged that a D.F.O. employee told him he could retain the licence until he re-acquired another boat. He further alleged that the D.F.O. employee neglected to inform that he must renew the licence annually in order to retain his eligibility. Several years later when he applied to renew his licence, his application was denied because of his earlier failure to annual renew the licence.

Since Perrot’s licence would have been renewed in the normal course of events without arbitrary decision making by the Minister, the court ruled that the validity of the Minister’s decision to not renew need not be determined by the court. As a result, this was in essence a negligence action that was within the jurisdiction of the superior court.

The cases of the other two appellants involved refusals to renew licences after fishers had been charged with fisheries offences and found not guilty. In these cases, the appeal court ruled that the Federal Court had exclusive jurisdiction because "the common theme of all the allegations against the Crown by Duffett and Donovan was ‘inextricably tied to the cancelling of the Permit for the 2000 Snow Crab fishery and the refusal to issue a Permit for the 2001 Snow Crab fishery’" (para. 18).

Since the Superior Court has concurrent jurisdiction over torts actions against the Crown, the proper procedure was to grant a stay pending determination of the validity of the ministerial decision, rather than than striking the statement of claim.

Editor’s Postscript: This case was not followed in Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, para. 39.