Fennelly v. Canada (Minister of Fisheries and Oceans)

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. The applicant was a fisherman who owned two boats, a 75 foot stern trawler (the “Bear Cove Point”) and a 95 foot multipurpose trawler (the “Sandy Joanne”). In 1995 he was issued an exploratory crab fishing licence for use on the “Bear Cove Point”, which has been continually re-issued since that time.

In 1998 he was also issued an exploratory snow crab licence for use on the “Sandy Joanne”. In 1999 when he applied for re-issuance of both licences, the licence on the “Bear Cove Point” was issued but not the licence on the “Sandy Joanne”. In the year 2000, the Department of Fisheries (DFO) wrote to the applicant and advised him that the licence issued to the “Sandy Joanne” in 1998 was a temporary replacement for the “Bear Cove Point”.

In 2001 the applicant applied to the Regional Licence Appeal Committee and requested that the licence for the “Sandy Joanne” be re-issued. This Committee declined his application and he subsequently applied to the Atlantic Fisheries Licence Appeal Board. During his appeal he advised the Board that there existed no documentation for the Department of Fisheries indicating that in 1998 he had to bank the crab licence on the “Bear Cove Point”. After hearing the appeal, the Board made a recommendation to the Minister of Fisheries that the appeal be denied. The Minister then denied the appeal.

In what appears to be a well-argued case, a number of issues were raised including:

1. Ability to review a decision of the Atlantic Fisheries Licence Appeal Board;

2. Standard of Review;

3. Requirements of Natural Justice;

4. Whether concern about criticism from other participants in the fishing industry was a proper factor for consideration by the Minister;

5. Adequacy of Reasons given by the Appeal Board; and

6. Whether or not the Minister based his decision on correct information (s. 18.1(4)(d) of the Federal Court Act).

Although the arguments with respect to these issues are set out in the reasons for judgement, the court only addressed the issue of whether or not the Minister (and the Appeal Board) based his decision on correct information. Upon reviewing the evidence the court found that both the Appeal Board and the Minister failed to address the issue of whether or not the licence issued to the “Sandy Joanne” in 1998 was only an authorization for the use of a replacement licence under the licence issued to the “Bear Cove Point” or whether it was a separate and independent licence (para. 48). Accordingly, the decision of the Minister to deny the issuance of a licence to the “Sandy Joanne” was quashed with an order that the matter be remitted back to the Minister who (with the assistance of the Appeal Board if he desired) would reconsider the matter after reviewing and considering the evidence with respect to status of the “Sandy Joanne” licence in 1998.

The court refused to make an order that the Applicant receive a separate licence for the “Sandy Joanne” as this would make the court the minister for the day, contrary to what was said in Carpenter Fishing Corp. v. Canada [1998] 2 F.C. 548 (C.A.).