This case involved an application for relief from forfeiture pursuant to section 75 (4) of the Fisheries Act which provides as follows:
75. (4) Where, on the hearing of an application made pursuant to subsection (1), it is made to appear to the satisfaction of the judge,
(a) that the applicant is innocent of any complicity in the offence or alleged offence that resulted in the forfeiture and of any collusion in relation to that offence with the person who was convicted of, or who may have committed, the offence, and
(b) that the applicant exercised all reasonable care in respect of the person permitted to obtain the possession of the thing in respect of which the application is made to satisfy himself that the thing was not likely to be used contrary to this Act or the regulations, or, in the case of a mortgagee or lien holder, that he exercised such care with respect to the mortgagor or the lien giver, the applicant is entitled to an order declaring that his interest is not affected by the forfeiture and declaring the nature and extent of his interest.
This case involved a Father and son who lived in an area where illegal ice fishing was very prevalent. A Father regularly borrowed his son’s snow mobile for the purpose of working on his son’s log home, but had a blanket permission to use the machine when he wished to. He took the machine on the morning he was charged without asking and before his son was out of bed. He gave evidence that he did not ask his son for permission to use the snow mobile for illegal fishing because he knew his son would refuse such permission.
The decision examined two lines of authority as to the duty of a bailee of goods under provisions such as section 75(4) of the Fisheries Act. These two lines were summarized by Cameron J.A. in his dissent as follows:
, based on the decision of Fauteux J. in Deputy Minister of National Revenue v. Industrial Acceptance Corporation Limited, (1958), 15 D.L.R. (2d) 369 which has been generally interpreted to require, in every case, that the bailor make some positive and specific inquiry as to whether there are reasons to suspect likelihood of activity contrary to the Act with the circumstances determining the nature of the inquiry; and the other, illustrated by the decisions of Justice Green in Doyle v. Minister of National Revenue (1993), 106 Nfld & P.E.I.R. 53 and Coombs v. Minister of National Revenue (1992), 102 Nfld & P.E.I.R. 23, which hold that the circumstances dictate not the nature of the inquiry but whether such an inquiry need be made.
All of the members of the court chose the second line of authorities to the effect that the circumstances dictate whether or not a positive enquiry is required. The Majority decision of Green J.A. concurred in by Marshall J.A. found on the facts of the case that a positive enquiry was not required. Cameron J.A. in dissent, disagreed and would have imposed a positive duty to warn against illegal use.
With respect to the scope of the duty, Cameron J. suggested that in the absence of a prior history of fishing contrary to legislation, obtaining an "undertaking by an ostensibly honest bailee would meet the test". However, if the bailee had a history of previous convictions, such an undertaking might merely be "paying lip service to form."
Post script (16 June 04): See also Hurley v. Canada 2003 NLSCTD 178