Hache v. Canada (Minister of Fisheries and Oceans)

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

This case is the sequel to Aucoin v. Canada (Minister of Fisheries and Oceans) [2001] F.C.J. 1157 (digested herein). Aucoin involved a challenge to a co-management agreement between D.F.O. and the East Coast (zone 12) snow crab fishermen. It is reported that as a result of changes to the Unemployment Insurance Act in 1995, it became apparent that numerous employees working in snow crab processing plants were not going to be able to work the minimum number of weeks required to qualify for unemployment insurance benefits. Consequently, D.F.O. initiated discussions with the zone 12 crab fishermen for the purpose of obtaining a contribution of funds from them to be used with other funds contributed by the Provincial Government for the purpose of creating make work projects for the shore workers. As a result of these discussions, the crab fisherman entered into a co-management or partnering type agreement to provide a percentage of their gross revenue to the shore workers.

Pursuant to this agreement, a procedure for collecting funds was set up as follows: Each year, D.F.O. with-held 20 per cent of the fishermen’s quota and transferred it to a non profit corporation. Upon payment by each fisherman to the non-profit corporation, the corporation would notify D.F.O. and then transfer the payment to a second non-profit corporation. Upon transfer of the money, the fisherman’s share of the with-held quota would then be released.

Although legislation was tabled in Parliament to authorize this type of co-management or partnering agreement (Bill C-62), this legislation died on the order paper when Parliament was dissolved in April of 1997. Despite the failure to pass this legislation, the crab fishermen honored this agreement and paid the levy for several years until they received an opinion from the Auditor General that the levy was of questionable legality. They then decided to challenge the levy imposed for the 2001 fishery by way of an application to the Federal Court for judicial review.

Upon review, Rouleau J. found that the decision of the Minister was null and void and ultra virus his powers under the Fisheries Act and prohibited the Minister from implementing the plan.

The applicants in the Aucoin proceeding then commenced and action in Federal Court seeking damages against the Crown for, amongst other things, return of the funds they paid in 2001 in order to obtain the release of the 20 per cent quota that had been with-held. The plaintiffs then brought an application for summary judgement of their claim.

The court denied the summary judgement application and referred the matter to the trial court. In doing so, it said, amongst other things, as follows:

1. The characterization of the quota transferred from the Partenariat to the individual fishers was incorrect because “the quota to be allocated was within the discretion of the Minister and no fisher has the legal right to a specific quota in any given year” (para. 16);

2. Air Canada v. Ontario Liquor Control Board, [1997] 2 S.C.R. 581 can be distinguished because the funds in this case appear to have been paid to a third party;

3. A full trial is necessary to determine whether or not the fishers received anything in exchange for the quota they are alleged to have lost;

4. The facts of the case appeared closer to the facts of Cheticamp Fisheries Co-operative Ltd. v. Canada [1995] N.S.J. No. 127 (C.A.) where an action against the Crown for interference with economic relations failed because the plaintiff failed to prove that it did not receive value equal to the monies held back; and

5. The Plaintiffs had not provided sufficient evidence that the Minister’s actions were deliberately calculated to injure the plaintiffs as is required to support a claim of misfeasance of public office.