Elson v. Canada (Attorney General)

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

This case involved judicial review of a decision by the Minister of Fisheries (based upon a recommendation of the Atlantic Fisheries Appeal Board) to deny the Applicant’s appeal in which he sought an exemption from the Preserving the Independence of the Inshore Fleet in Canada’s Atlantic Fisheries policy (“PIIFCAF Policy” or Policy).


In 2007 the Minister of Fisheries introduced the PIIFCAF Policy for the purpose of strengthening the Atlantic Coast Owner-Operator and Fleet Separation Policies. This Policy, required in-shore fishers to sign declarations stating whether they were parties to a controlling agreement by a third party such as a fish processor. If they were party to a controlling agreement, they had until April 12, 2014 to be free of such an agreement, failing which their licences would not be renewed.
The Applicant was party to a controlling agreement by two fish processors. He was advised by DFO in writing that since he was subject to a controlling agreement, that after April 2014 he would not be eligible to receive a new or replacement licence until the controlling agreement was terminated. He was also told he had a right of appeal. In 2015, the Applicant appealed the Minister’s decision to an Appeal Board. The Appeal Board asked the Applicant to put a dollar value on his claimed financial hardship, but he neglected to do so. The Appeal Board subsequently recommended that the appeal be denied on the grounds that the Applicant had not demonstrated a valid extenuating circumstance and that he had been treated fairly. After reviewing this recommendation, the Minister rejected the Applicant’s appeal in a letter that gave no specific reasons for the denial other than a reference to the report of the Atlantic Fisheries Licence Appeal Board and “[h]aving considered all relevant information” (para. 19).


The Court ruled that the standard of review was reasonableness. It stated that “reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process, but also whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” It also noted that issues of procedural fairness are reviewed on the correctness standard (para 26).


The Court ruled that it was only the decision of the Minister, not the decision of the Appeal Board, that was subject to judicial review.
The Applicant argued that in pith and substance the PIIFCAF Policy was social and economic legislation unrelated to protecting the fishery. Based upon the assumption that this was true, it was argued that to base a discretionary decision upon a policy that would be ultra virus Parliament if it were enacted as legislation, would be an irrelevant consideration. In rejecting this argument, the Court did a thorough analysis of the case law involving the division of powers over fisheries matters and concluded that the federal Parliament’s powers over fisheries are broad, are not limited to conservation, and include management of fisheries for social, environmental and other grounds (para. 51). The Court pointed out that the Minister strongly believed that an independent inshore commercial fishing fleet was an important element of an economically prosperous Atlantic Canada. Accordingly, the Court held that such social and economic factors were permissible factors for the Minister to consider. The Court also noted that since the PIIFCAF Policy was a policy, it could not be subject to a division of powers challenge (para. 56-63). In the alternative, the Court also ruled that even if the Applicant’s challenge had been to a S.7 discretionary decision as opposed to a policy, the challenge would not have stood up because the Policy was in pith a substance a valid exercise of federal fisheries power designed to prevent fish processing corporations from exerting licence control in the inshore fishing industry so as to protect the economy of coastal communities who depend upon the resource (paras. 73-4).


With respect to this issue, the Applicant raised three arguments. His first argument was that the Policy contained mandatory requirements that fettered the Minister’s discretion. In rejecting this argument, the Court found as a fact that the Policy indicated that it only guided the Minister but was not binding on the Minister. The Court also held that it was not improper to stipulate what information must be provided by licence holders in order to assess their eligibility.

Secondly, the Applicant argued that the failure of the Policy to provide for individual harvester exemptions fettered the Minister’s discretion. However, in rejecting this argument the Court stated the Minister was free to state general requirements in his Policy. The Court also noted that the Policy provided for an appeal process, which the Applicant was advised of. At the Applicant’s appeal before the Appeal Board the Board asked him to put a dollar value on his claimed financial hardship and he had not done so. The Applicant had also not lead any evidence that it had attempted to mitigate the hardship by approaching a Recognized Financial Institution for a loan (para. 118). Upon cross examination on his affidavit the Applicant revealed that he made no attempt to terminate his controlling agreement with the fish processors and that his request for an exemption to the Policy was made at the request of the fish processors and conducted with their assistance.

Thirdly, the Applicant argued that the Minister’s decision letter failed to acknowledge the source and breadth of his broad discretion under s. 7 of the Fisheries Act or give adequate reasons for the rejection of the appeal. The Court accepted this argument, and concluded that the Minister “fettered his discretion by not also considering that it was open to him to afford the relief sought other than by way of the PIIFCAF Policy and the appeal process” (para. 135). This was because the record before the Minister contained no reference to s. 7 of the Fisheries Act, other that a reference in the letter from the Applicant’s counsel and the “Ministers denial letter failed to acknowledge the source and breadth of his broad discretion under section 7 of the Fisheries Act . . . ” (para. 135).
The applicable test to determine whether an administrative decision-maker is biased will vary depending on the decision-making body (para. 142). Since the decision of the Minister of Fisheries being challenged was highly discretionary, was not constrained by statute and was based upon policy considerations which took the public interest into account, the applicable standard applied was whether the Minister had a closed mind. The onus was on the Applicant to show that there was prejudgement to the extent that any representations at variance with the Minister’s view would be futile (para. 146). The Court ruled that the Applicant had not met this burden for the following reasons:
(1) Previous statements cannot be used to fetter a Minister’s discretion;
(2) The PIIFCAF Policy explicitly stated that it was not binding on the Minister in making decisions regarding licences;
(3) Although first level of appeal was skipped, the appeal policy allowed for doing so; and
(4) The Appeal Board did not find any extenuation circumstances and found that the Applicant had been treated fairly.
The Court reviewed jurisprudence that suggested at the remedial stage courts should consider whether quashing an administrative decision-maker’s decision and remitting it to the administrative decision-maker for re-determination would serve any practical or legal purpose. In addressing this issue, the court found that “the objective of the PIIFCAF Policy was to address the deliberate circumvention, by way of the proliferation of trust agreements (controlling agreements), of the Owner-Operator and Fleet Separation Policies” (para. 156). Given the failure of the Applicant to terminate the controlling agreement or provide any financial information to the Appeal Board, it was clearly open to the Minister to refuse to issue the licences to the Applicant. Accordingly, despite the finding that the Minister had fettered his discretion, the Court refused to quash the decision and send it back to the Minister for reconsideration.