This case involved a Nova Scotia corporation involved in the business of fishing for silver hake and selling it to an offshore market. The company alleged that it was injured as a result of : (1) a delay in approving its fishing licence and quota in 1995; (2) it received a shortfall in its quota allocation in 1995; and (3) in 1996 it was denied a licence because it did not meet a 15 per cent Canadian processing requirement.
The Crown made a pre-trial application to strike the statement of claim on the grounds that under s. 28 and 18.1 of the Federal Court Act the Nova Scotia Supreme Court did not have jurisdiction because the action was really judicial review dressed up as a tort action.
In denying the Crown’s motion, the court applied the test set out in Horseman v. Horse lake First Nation  A.J. No. 1020 (Q.B.) to the effect that the plaintiff need only show that it was not plain and obvious at this stage that its action was not based on a cause of action other than judicial review. In applying this test, the court reviewed the plaintiffs claims of: (1) abuse of public office; (2) interference with the respondent’s economic interests; and (3) interference with the Respondent’s economic relations to conclude that these were clearly issues of tort law and not within the scope of judicial review.
Editor’s note: For more cases dealing with this issue see footnote 17 in the paper CROWN LIABILITY C.L.E. of British Columbia FEDERAL COURT PRACTICE UPDATE,2003 by Brad Caldwell and Robin Whittaker located in the Papers Section of the Fisheries Page.