McKay v. Canada

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

This case involved an attack on the alleged privatization of the ground fish fishery in the Scotia-Fundy area by way of the creation of individual transferable fishing quotas. The case was brought as an action for both injunctive and declaratory relief. On a pre-trial application by the Defendant, the court struck the portions of the statement of claim asking for injunctive relief on the grounds that such relief can only be obtained by way of application for judicial review under section 18.1 of the Federal Court Act see: Mundle v. Canada (1995), 85 F.T.R. 258).

With respect to the declaratory relief sought, the court allowed the statement of claim to stand, as its allegations were consistent with the basis of challenge allowed by Carpenter Fishing Ltd. v. Canada (1997), 221 N.R. 372, namely "bad faith, nonconformity with the principles of natural justice where the application of those principles is required by statute, and reliance upon considerations that are irrelevant or extraneous to the statutory purpose."

Counsel for the Plaintiff: Bruce Wildsmith

Counsel for the Defendant: John Ashley