North of Smokey Fisherman’s Association v. Canada (Attorney General)

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

This case involved a judicial review proceeding against the Minister of Fisheries challenging his decision to open a winter cod fishery in the Sydney Bight area east of Cape Breton. While the hearing of the proceeding was pending, the applicant, an association of fishermen, brought on a motion for an interlocutory injunction enjoining the Minister from opening the fishery.

The court dismissed the application for an injunction for the reasons set out below.

S. 22 of the Crown Liability and Proceedings Act prohibits injunctions against the Crown when acting within the powers granted to it by law (although allowing declarations). Since the applicant was not able to show any statutory provision contravened by the Minister or any evidence that his decision was motivated by irrelevant considerations or that he acted arbitrarily or in bad faith, s. 22 applies. In this regard, the court appears to have rejected an argument that the Oceans Act, SC. 1996, c. 31 bound the Minister to take the precautionary approach to management.

Alternatively, the court ruled that the applicant did not satisfy the three-part test for an injunction.

With respect to whether or not there existed a “serious issue to be tried”, the court noted that when the result of the interlocutory motion will, in effect, amount to a final determination of the application, the threshold for satisfying the test is raised and the applicant must make out a prima facie case.

With respect to “irreparable harm”, the court noted that it was necessary to show irreparable harm to the applicant itself.

With respect to “balance of convenience”, the court noted that “an action taken by the Crown is prima facie deemed to be in the public interest . . .” (para. 24). When a public authority is prevented from exercising its statutory powers, “it can be said that the public interest, of which the authority is the guardian, suffers irreparable harm . . . A court should not, as a general rule, attempt to ascertain whether actual harm would result (para. 26) . . . Here, NOSFA, in effect, seeks to have the court manage or police the fishery. That is not a function of the court.” (para. 27).