Gillett v. Canada and Hurley

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

In response to increasing fishing pressure in the capelin fishery, in 2007 Fisheries and Oceans Canada (“DFO”) imposed a management measure that only allowed capelin licence holders to fish in one management area per year. As a result, licence holders in the Newfoundland region who leased their capelin fishing vessels to licence holders in another region, were not permitted to use the same vessels in Newfoundland. The Plaintiff was a commercial fisher residing in Newfoundland who owned a fishing vessel with a number of licences including a licence to fish for capelin. Following his decisions to lease his vessel to another fish harvester in Quebec for the purpose of fishing capelin in Quebec waters in both 2007 and 2008, DFO prohibited him from fishing for capelin in Newfoundland in both 2007 and 2008. The Plaintiff then commenced a Federal Court action against the Government of Canada and the DFO official who implemented this management measure, claiming damages for loss of income. The Federal Court reviewed a number of issues, as set out below, and dismissed the Plaintiff’s claim for the reasons set out below.


As a preliminary issue, the Court had to decide whether the Plaintiff’s capelin licence, once granted, constituted property. In this regard, the evidence at trial was that licences were normally initially issued in the capelin fishery without conditions attached with a provision stating that “the Licence Holder cannot operate any licence without the license conditions for that fishery attached . . .” The conditions were generally then issued later in the year, often just before the season commenced. In accordance with its management measure, DFO did not issue any conditions to the Plaintiff in 2007 and 2008 because he had leased his vessel to a fisher in the Quebec region. After reviewing the evidence, the Court considered jurisprudence on the issue of whether or not a fishing licence is property including Saulnier v. RBC, 2008 SCC 58, and Her Majesty the Queen v. Hache, 2011 FCA 104 and noted that the findings in both Saulnier and Hache, that the rights conferred by fishing licenses constituted property interests, were made only for purposes of certain statutory definitions. The Court also considered 100193 P.E.I. Inc., 2016 FCA 280 and Anglehart v Canada, 2016 FC 1159. After reviewing these cases, the court went on to conclude that the Plaintiff had no property right in the capelin licences issued to him because the licences had been intentionally issued without conditions attached. Given the fact that the Plaintiff had no property interest in the licences in 2007 and 2008, it followed that there was no taking without compensation.


With respect to this issue, the Court applied the test set out in Odhavji Estate v Woodhouse, 2003 SCC 69. The Plaintiff argued that DFO’s application of the management measures preventing him from harvesting capelin after his vessel has been used in the Quebec fishery was conduct specifically intended to injure him. In this regards, DFO had stated that one of its main goals was to slow down the fishery and prevent gluts of fish arriving at fish processors at the same time. DFO also stated that its goal was to limit additional fishing effort by preventing previously inactive licences from becoming active. The accused argued that the goal of avoiding gluts was not advanced by preventing him from leasing his boat for use in the Quebec fishery because the fisheries were not held at the same time. The Court rejected this line of argument and stated that “even if I were to accept that the application of DFO’s policy measures in these particular circumstances was not necessary to advance DFO’s policy objectives, it does not mean the policy or application is unlawful” (para. 51). After citing Comeau’s Sea Foods Limited v. Canada, [1997] 1 SCR 12 and referring to the broad discretion that the Minister has to manage the fishery in the public interest, the Court concluded that “[t]hese measures took into account the recent history of that fishery and the input of interested stakeholders. I find no basis to conclude that these measures or their application to Mr. Gillett were arbitrary or based on irrelevant considerations or bad faith (para 52).

The court also addressed several other arguments of the Plaintiff with respect to misfeasance and rejected them (paras. 53-68).

With respect to this issue, the Plaintiff argued that his application for a licence renewal was an offer, the $30 licence fees was consideration and the issuance of the licence was acceptance. However, the Court rejected this argument on the basis of the evidence that the licence was issued without attaching conditions and that no conditions were provided until after the season was over.


With respect to this issue, the Plaintiff argued that DFO’s chief resource management officer for the applicable area had tortuously interfered with his economic relationship with DFO. However, the Court rejected this argument on the basis that it found no illegal or unlawful act by the resource manager and there was no evidence that he acted with intent to cause loss to the Plaintiff.