Durant v. Canada (Minister of Fisheries and Oceans)

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

This case involved an application for judicial review of a decision by the Minister of Fisheries to discontinue the practise of allowing oyster cleaners to go out onboard oyster boats to clean oysters while the boats fish. Although a fisher’s registration card and a licence were apparently required to clean oysters aboard a fish boat, for many years D.F.O had not been enforcing this rule and had been allowing cleaner to attend on boats with a fisher’s registration card, but not a licence. As a result of an announcement made in April of 2000, commencing on September 15, 2000 no oyster cleaners were allowed to clean oysters aboard fish boats (licences were not issued for this purpose). In denying the application for judicial review, amongst other things the court rules as follows:

(1) The decision to be reviewed is the change of policy itself, rather than the announcement of the change of policy, therefore the 30 day limitation period does not start from the date of the announcement;

(2) The standard of review to be applied was the patently unreasonable test;

(3) Under the circumstances, the issuance of the news release inviting interested person to contact the Regional Director for further information satisfied any requirements for procedural fairness and natural justice;

(4)No substantive right could be recognized based upon the doctrine of legitimate expectations;

(5)There was no evidence of abuse of public power, as the change in policy appeared to be motivated by concerns over conservation and sustainability of the industry;

(6)Damages cannot be awarded in a judicial review hearing (Tench v. Canada (Attorney General) (1999), 179 F.T.R. 126 (F.C.T.D.)
Editor’s note: Charges under the Fisheries Act against the applicant were dismissed in Prince Edward Island Provincial Court 2. See the digest of this case under the heading “Offences,Misc.”