A fisherman (“Decker”) succeeded on his application for judicial review of the decision of the Minister of Fisheries and Oceans (the “Minister”) refusing his application for a shrimp licence

Administrative law – Fisheries – Licence applications – Permits and licences – Decisions of administrative tribunals – Ministerial – Judicial review – Evidence

Decker v. Canada (Attorney General), [2004] F.C.J. No 1762, Federal Court, October 20, 2004, O’Keefe J.

Decker was a core enterprise fisher in Newfoundland and Labrador holding a groundfish licence. In April of 1997, the Department of Fisheries and Oceans (“DFO”) announced that the total allowable catch for northern shrimp would be increased for 1998, subject to resource stability. “Temporary permits would be issued for 1998 to allow new entry into the shrimp fishery. To qualify for a temporary permit, fishers had to be geared up and inspected by DFO before the end of 1998.”

Although the DFO policy indicated that to get a permit in 1998 a vessel had to be fully geared up and ready to fish shrimp at the time of the inspection, Decker contended that he was told that if he acquired all of the necessary gear and had it on his property before December 31, 1998, he would be issued a permit even though the equipment was not installed. DFO submitted that such a representation was never made to Decker. Decker also led evidence that he spent some $24,129 purchasing or ordering shrimp fishing gear prior to the end of 1998.

Decker’s initial application for a shrimp fishing license and his subsequent appeal, were denied.

On the application for judicial review, Decker argued that the requirement of being fully geared-up prior to the December 31, 1998 deadline had been waived by DFO officials. Although the Appeal Board found that Decker had failed to meet the requirements of a particular “equipment checklist”, Decker deposed that no such checklist was ever provided to the Appeal Board, and he was never questioned about any DFO equipment checklist. Decker also submitted that demonstrated financial commitment was an extenuating circumstance that would warrant deviating from DFO’s established licensing policy, but that the Appeal Board had failed to properly consider his demonstrated financial commitment.

Subsection 7(1) of the Fisheries Act, R.S.C. 1985, c. F-14, grants the Minister a broad discretion to issue fishing licences. In the decision of the Supreme Court of Canada in Comeau’s Sea Foods Ltd. v. Canada (Minister of Fisheries and Oceans), [1997] 1 S.C.R. 12, Major J. held that the discretion to issue fishing licences is restricted only by the requirement of natural justice, and that the Minister is bound to base the decision on relevant considerations, avoid arbitrariness and act in good faith.

O’Keefe J. held that although the Appeal Board itself was not a creature of statute, in this case the Minister’s decision included the Appeal Board’s recommendation to dismiss the appeal and the Board’s findings of fact. “While the Appeal Board’s report is not prima facie reviewable, it formed part of the basis of the Minister’s decision and this Court can therefore inquire as to the reasonableness of the report.”

The application for judicial review was allowed, with O’Keefe J. making the following direction:

The decision of the Minister refusing the issuance of a shrimp licence to the applicant is quashed. The matter is remitted back to the Minister for redetermination in accordance with these reasons. The Appeal Board did not make findings on two important issues: (1) was an exemption given to the applicant, and (2) whether extenuating circumstances existed due to demonstrated financial commitment by the applicant. The Minister is therefore not precluded from referring the matter to a differently constituted Appeal Board to determine those issues as well as the issue of the contradiction between the alleged failure to meet the equipment checklist and the affidavit of the applicant on this point.

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