Kimoto v. Canada (Attorney General)

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

This case involved amendments to Chapter 3 of the Pacific Salmon Treaty that required Canada to reduce its catch of chinook salmon from the west coast of Vancouver Island and required the U.S. to provide 30 million dollars to Canada for a fisheries mitigation program to reduce effort in Canada’s commercial troll fishery. After some consultation, the Minister of Fisheries decided on a mitigation program that included a voluntary permanent licence program for trollers on the west coast of Vancouver Island (Area "G") and also trollers from the Strait of Georgia (Area "H") and Northern B.C. (Area "F"). The Area "G" trollers brought an application for judicial review challenging the decision and taking the position that the 30 million dollars should have been paid to them. At the first instance, the Federal Court trial division denied the application.

Upon appeal the Federal Court of Appeal also denied the application for the following reasons:

Since the applicants had no property right in the fish that remained uncaught (Saulner v. RBC was distinguished), the law of expropriation does not apply;
"The Minister is charged with the formidable task of managing, developing and conserving the fisheries, which belong to the Canadian people as a whole. Decisions with respect to conservation and management issues must necessarily balance the interests of competing stakeholders. In this case, the Minister informed herself of the available options (of which there were many) by conducting extensive consultations with the various stakeholders . . . In our view, the basis of the Minister’s decision was sufficiently transparent and intelligible, and the decision itself fell within the range of possible, acceptable outcomes which are defensible in respect of the facts and law (see Dunsmuir v. New Brunswick, 2008 SCC 190)";
In accordance with Comeau’s Sea Foods Ltd. v. Canada, [1997] 1 S.C.R. 12, since licensing is a tool available to the Minister to manage the fishery, it was reasonable for him to choose a licence retirement plan to achieve reduction of fishing effort; and
The Larocque decision was distinguishable, because there was not sale of fish in the the Kimoto case.