Malcolm v. Canada (Minister of Fisheries)

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

This case involved a representative proceeding brought by the applicant on behalf of all commercial halibut licence holders in British Columbia. The applicant sought judicial review of a decision of the Minister of Fisheries changing the allocation of the total allowable catch (“TAC”) of halibut between the commercial sector and the recreational sector from 88% (commercial)/12% (recreational) to 85%/15%.

In making the decision under review, the Minister rejected the advice of his department and also broke a prior stated policy of only modifying the allocation by a market driven mechanism.

In upholding the decision of the Applications Judge to dismiss the application, the Court of Appeal examined the following issues:

10 What is the applicable standard of review;
2) Does the doctrine of promissory estoppel apply;
3) If not, does the doctrine of legitimate expectations apply; and
4) if not, was the Minister’s decision nevertheless reasonable.


The Application’s judge’s selection of the appropriate standard is itself a question of law reviewable on the standard of correctness.

The issues of promissory estoppel and legitimate expectations were correctly reviewed by the application’s judge on standard of correctness.

With respect to review of the substance of the Minister’s decision, all the parties agreed that the applicable standard was reasonableness, but they disagreed as to what the standard required in the context of the case. The appellant commercial licence holders argued that the reasonableness standard set out in Dunsmuir applied without qualification. The Respondents argued that the Maple Lodge Farm test applied. In response to these arguments, the Court of Appeal appears to have subsumed the Maple Lodge Farm test into the Dunsmuir test as follows:

"A discretionary policy decision that is made in bad faith or for considerations that are irrelevant or extraneous to the legislative purpose is unreasonable by that very fact [Maple Lodge Farms]. Such a decision can also be unreasonable if it is found to be irrational, incomprehensible or otherwise the result of an abuse of discretion. The ultimate question in judicially reviewing the Minister’s decision in this case is to determine whether the decision falls within a range of reasonable outcomes having regard for both the context in which the decision was made and the fact that the decision itself involves policy matters in which a reviewing court should not interfere by substituting its own opinion to that of the Minister’s. It is with these considerations in mind that the reasonableness of the Minister’s decision should be determined." [para. 35]


After reviewing the authorities that provide for a very limited application of the doctrine of promissory estoppel to public authorities the Court of Appeal noted that the "Minister may modify the approach followed previously if, in the Minister’s opinion, public interest considerations reasonably justify such a change of policy [42]. On the facts of the case, the Court ruled that the estoppel did not apply.


This argument was rejected on the grounds that it is limited to only procedural relief and the applicant was seeking substantive relief.


The essence of the appellant’s argument was that the Minister abused his discretion in deciding to reallocate 3% of the TAC without using a market-based mechanism. The Court of Appeal rejected this argument and upheld the decision of the Minister for the following reasons:

1) The Minister has broad authority and discretion to manager fisheries in the public interest;
2) The Minister may take into account social and economic factors when allocating a fishery resource;
3) The Minister is not bound by policy decisions of his or her predecessors;
4) The Minister is not bound to provide compensation to affected fishers when reallocating TAC or reducing quota;
5) The commercial sector and the sports sector were unable to agree upon a market based mechanism despite numerous efforts by DFO;
6) The use of public funds to compensate the commercial fleet was not deemed appropriate by DFO;
7) DFO questioned the feasibility of a levy for fee mechanism to collect funds to support a market based mechanism;
8) a pilot experimental marked-based mechanism in introduced in 2011 did not meet with any substantial success;
9) The Minister’s primary consideration was to encourage jobs and economic growth in B.C. and the recreational sector provides an important contribution to the economy of B.C.; and
10) Although not the option favoured by DFO officials, the plan implemented by the Minister was one of several options presented to him by DFO officials.

The Court summarized its decision as follows:

"The Minister’s decision to proceed with the 3% reallocation of the TAC without applying a market-based mechanism or another form of compensation was not irrational or incomprehensible when considering the record as a whole. Moreover, that decision was not an abuse of the Minister’s discretion, and it was not made in bad faith or on the basis of considerations that are irrelevant or extraneous to the purposes of the Fisheries Act. The Minister’s decision fell within a range of reasonable outcomes having regard for both the context in which the decision was made and the discretionary and policy nature of the decision."