Ecology Action Centre Society v. Canada (Attorney General)

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

This case involved an application to quash a variation order that opened the Georges Bank for fishing by any means, including dragging. The Applicant argued that the variation order was beyond the jurisdiction of the decision maker because the use of draggers would cause damage to fish habitat.

At the initial application before a Prothonotary, the applicant tendered seven affidavits of expert evidence regarding the impact that draggers would have on the area affected by the variation order. The Prothonotary refused to admit these affidavits on the grounds that they were not before the initial decision maker and that the want of jurisdiction argued could be made apparent without reference to the affidavits.

Upon appeal, the court applied the test for reviewing discretionary decisions of prothonotaries. In doing so he rejected an argument that the Prothonotary’s order was based upon an incorrect application of the principle or a misapprehension of the facts. With respect to facts, the court applied Gitxsan Treaty Society v. Hospital Employees’ union, [2000] 1 F.C. 135 (C.A.) for the proposition that extrinsic evidence is only admissible in those circumstances “in which the only way to get at the want of jurisdiction is by the bringing of such new evidence before the reviewing court”. With respect to principle, the court rejected the argument that the test set out in Gitxsan only applies to judicial review of decisions that are judicial in nature. The Court agreed with the Prothonotary that substantial material was already before the court on the matters raised by the impugned affidavits. For similar reasons, the court also found that the decision of the Prothonotary did not raise an issue “vital to the final result of the case”.