This case involved a crab fisherman who relied upon a fisheries officer to measure the tonnage of his boat in order to qualify for a fishing licence. In holding the fisheries officer liable in negligence, the trial court found that measuring the depth of a vessel and telling the owner where to place the measuring tape was “not a policy decision but a decision required in the implementation of the policy” (para. 61 trial decision). Since the fisheries officer knew that the tonnage measurement was in connection with a licence that had been applied for, there was proximity or neighbourhood and harm was foreseeable.
With respect to the issue of whether or not the availability of an administrative remedy trumped tort law, the trial court distinguished the Comeau’s Sea Foods decision as a case involving a discretionary decision on a policy issue which had no application to a case involving simple negligence in the operational sense (where there is no practical administrative remedy available).
Upon appeal, the court similarly distinguished Comeau’s Sea Foods on the basis that in the Keeping case when the licence was applied for, the policy pertaining to the issuance of licences had already been adopted and implemented (para. 32). After referring to the test for setting aside a discretionary decision as set out in Comeau’s Sea Foods, the court said that if the vessel had been properly measured by the fisheries officer, “there would have been no valid reason for the Minister not to have issued William Keeping a supplementary crab licence. To not have done so, given that Mr. Keeping would have met all the required criteria, would have been completely arbitrary and in bad faith.”
Editor’s note: This case is significant because it could be used to argue that the failure of the Minister of Fisheries to renew a fishing licence is reviewable because it would be arbitrary and in bad faith.