Fennelly v. Canada (Attorney General)

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

This case involved judicial review of a decision of the Minister of Fisheries to not re-issue an exploratory snow crab licence. During a previous judicial review application (digested herein), the court had made an order that the the Minister of Fisheries re-consider his decision based upon facts he had neglected to consider at the original appeal. After reconsidering the matter based upon the appropriate facts, the Minister once again decided not to re-issue the exploratory snow crab licence. The applicant then filed a new judicial review application alleging: (1) that the composition of the Licence Appeal Board that had advised the Minister raised a reasonable apprehension of bias because an employee of the Department of Fisheries served as its secretary and (2) the appeal board did not treat the applicant fairly.

With respect to the standard of review, the court applied the reasonableness standard to the appeal board (could the decision stand up to a somewhat probing analysis). With respect to the decision of the Minister, the court t followed Area Twenty Three Snow Crab Fisher’s Association et al. v. The A.G. of Canada et al. 2005 F.C. 1190 and said that the patent unreasonableness test applied (the decision must be so clearly wrong that the result must almost border absurd), but never really applied the test as it only really reviewed the recommendation of the appeal board.

In reviewing the decision of the appeal board, the court was not persuaded the applicant was not treated fairly. With respect to the composition of the appeal board, the court followed Jada Fishing Co. v. Canada (Minister of Fisheries and Oceans) (2002), 288 N.R. 237 (F.C.A.) to find that existence of a secretary from the Department of Fisheries who took no part in the deliberations did not raise a reasonable apprehension of bias.

Editor’s note: This case is a good example of the difficulty faced by applicants for judicial review when the most common remedy is to simply direct the decision maker to re-consider its earlier decision. As can be seen, notwithstanding directions to consider overlooked facts, it is not uncommon for the the decision maker to re-confirm its earlier decision.