In this case, the Applicant was a commercial fish harvester residing in Prince Edward Island who wished to move to New Brunswick. In order to do so, he sold the fishing license that he used while living in Prince Edward Island. After consulting with the Department of Fisheries and Oceans ("DFO"), he moved to New Brunswick and entered into an agreement to purchase a fishing license and related assets from a New Brunswick license holder for 1.5 million dollars and partly paid for it. This agreement provided that the vendor would hold the fishing license in trust until the Applicant had satisfied DFO residency requirements in New Brunswick.
Prior to the license being transferred to the Applicant, DFO imposed a freeze on any further transfers of the vendor’s license and eventually the vendor withdrew his expression of intent to transfer the license to the Applicant.
Subsequently, the Applicant commenced a legal action against the Vendor, that resulted in a finding that the contract had been frustrated.
Subsequently, the Applicant met with Fisheries Minister, who allegedly said that she agreed to send the matter to the AFLAB and would abide by the recommendation of the AFLAB.
Subsequently, the AFLAB recommended that the Minister re-issue the license to the Applicant on the grounds that DFO had previously given him erroneous information about the required qualification that caused him to miss an opportunity to have the license transferred before the freeze. When the recommendation was made, however, DFO had a new Minister who rejected the recommendations of the AFLAB by way of letter dated 2 March 2012. The stated reasons for not following the recommendations were: (1) no request for issuance of the license had been made by the vendor; and (2) the Board had failed to consider the court case that had held the sale agreement was frustrated.
Subsequently the new Minister became sick and Minister Shea was re-appointed as acting Minister. After receiving a request for a reconsideration, she issued a letter dated 27 November 2013 stating that the Applicant’s matter "has been thoroughly addressed and there is no merit for further review".
At the judicial review hearing a number of issues were raised.
WHICH DECISIONS ARE SUBJECT TO JUDICIAL REVIEW
The court held that the letter of 27 November 2013 was subject to review, but the original decision referred to in the letter of 27 November 2013 could also be considered.
STANDARD OF REVIEW
The court relied upon the decision of Malcolm v. Canada 2014 FCA 130 to apply a standard of reasonableness to the review of the Minister’s decision. It applied the correctness standard to the procedural fairness issues.
Given the fact the decision had great financial weight for the Applicant the court found he was entitled to procedural safeguards. In failing to advise the Applicant that it was taking into consideration the court case that found the purchase agreement was frustrated and giving him an opportunity to comment, the AFLAB breached procedural fairness. However, the court found that this breach was immaterial because the Applicant at no time had a right to the license because at the time of the appeal the vendor had never applied to re-issue the license to the Applicant.
REASONABLENESS OF THE FIRST DECISION BY MINISTER ASHTON
The court commenced by stating the test as follows:
"The discretion of the Minister to issue fishing licences is outlined at section 7 of the Fisheries Act. It must be i) in accordance with the requirements of natural justice; ii) based on relevant consideration; iii) without arbitrariness; iv) in good faith; v) in accordance with applicable statute or regulations; and vi) in accordance with the provisions of the Charter (Comeau at paragraphs 30, 31, 36, 37 and 51).
The court then found that alleged promise by Minister Shea to follow the recommendation of the AFLAB did not create a substantive right because a Minister cannot fetter his or her discretion to act in the future.
The court then relied upon a written policy statement that "a replacement licence may be issued upon request by the current licence holder to an eligible fisher recommended by the current licence holder" to find that since the Applicants request was not in accordance with this written policy, "in refusing this request, Minister Ashfield exercised his discretion in accordance with the law and did not make the decision in bad faith"
With respect to allegations that DFO mislead the Applicant when he inquired about the residency requirements for obtaining a licence in New Brunswick, the court found that there was insufficient evidence to make such a finding and, in any event, a judicial review is not an appropriate forum to adjudicate that issue.
REASONABLENESS OF THE SECOND DECISION BY MINISTER SHEA
Based upon several authorities the court concluded that Minister Shea’s alleged promise follow the recommendation of the Board would have been an impermissible fettering of her discretion.
The court dismissed the judicial review application but did not grant costs.
Editor’s note: The court may have erred in stating the breach of procedural fairness was immaterial because the Applicant had no right to the licence because the vendor had not applied to issue it. The policy guideline relied upon by the court was just a policy statement that would not have been binding upon the Minister. The whole purpose of the licence appeal process is to provide for situations where stated policies should not be followed based upon extenuating circumstances. The failure to give the Applicant the right to comment on the court case deprived the Applicant of an opportunity to argue that the Minister should make an exception to his policy.