Although this is not a fisheries case, it is very similar to the Comeau’s Seafood decision of the S.C.C. (digested herein) in the sense that it dealt with an initial promise by a Minister to issue a licence (for a short term care hospital facility), subsequent reliance on that promise, and then a refusal to issue the licence.
At the final level of appeal before the S.C.C., the majority decision distinguished the Comeau’s Seafood decision by confining its application to legislation such as the Fisheries Act which has a two step authorizing and then issuing process for licences. Unlike the Comeau’s Seafood case, the majority forced the Minister to issue the licence on the ground that once the Minister had made up his mind to issue the licence, his discretion had been exhausted and a subsequent Minister’s later reversal of the earlier Minister’s decision to not issue the licence was reviewable.
Unfortunately, the majority sidestepped the issue of whether or not public law promissory estoppel applied.
The minority judgement concurred in the result, but reached it by way of a different analysis. They reviewed the decision of the Minister by applying a standard of patent unreasonableness. In their view, the decision of the Minister was patently unreasonable.
The minority also concluded that public law promissory estoppel could not be applied. In doing so, they set out the four requirements for promissory estoppel and added that for public law estoppel, there is a fifth requirement, namely: “[p]ublic law estoppel clearly requires an appreciation of the legislative intent embodied in the power whose exercise is sought to be estopped. The legislation is paramount. Circumstances that might otherwise create an estoppel may have to yield to an overriding public interest expressed in the legislative text . . . ‘there can be no estoppel in the face of an express provision of a statute'” (para. 47).