The appeals by the Plaintiff fishermen from an application Judge’s decision striking their actions on the ground that they constituted a challenge to the ministerial decisions over which the Supreme Court of Newfoundland had no jurisdiction, was allowed in part, and the Court ordered that stays should have been entered pending judicial review before the Federal Court

Administrative law – Fisheries – Licence applications – Duty of Crown employees – Judicial review – Jurisdiction of court – Ministerial orders – Stay of proceedings

Donovan v. Canada (Attorney General), [2008] N.J. No. 36, Newfoundland and Labrador Supreme Court – Court of Appeal, February 5, 2008, B.G. Welsh, M. Rowe and L.D. Barry

The Plaintiff fishermen’s actions were in tort against the Crown for failure to renew a supplementary crab licence, in the case of Perrott, and for the cancellation and failure to renew snow crab permits, in the cases of Donovan and Duffett. Perrott said that he sold a portion of his fishing enterprise to a third party in 1990 but retained the supplementary crab licence. He was advised at that time by an employee of the Department of Fisheries and Oceans that his licence would be held for him at the Grand Bank office until he acquired another fishing vessel. Perrott alleged that he was not informed that he was required to renew the licence annually to retain eligibility. He said that when he made a request for the licence to be released, he was advised it could not be released because of a freeze in the licensing section, effective March 1991. Perrott was also advised that it could not be reinstated due to the failure to renew annually. Perrott claimed damages as a result of the negligence of the Crown employee. Donovan alleged that he had applied for and received a temporary snow crab permit from the Department of Fisheries and Oceans in 2000. That permit was suspended after charges had been laid against him alleging he was in breach of conditions of the permit and/or in breach of the Fisheries Act. He was subsequently found not guilty of the charges. Donovan alleged the Crown was negligent or in breach of its fiduciary duty and/or duty of good faith in suspending the permit and denying him further renewals before he had been convicted of any offence. The circumstances surrounding Duffett’s claim were similar to those surrounding Donovan’s claim.

The Crown filed an application to strike the claims. The application Judge allowed the application striking the actions on the ground that they constituted a challenge to the ministerial decisions concerning which the Supreme Court of Newfoundland had no jurisdiction as exclusive jurisdiction lay with the Federal Court. The Plaintiff fishermen appealed that decision.

The Court of Appeal allowed the appeals in part. With respect to Perrott’s claim, the Court of Appeal held that the application Judge erred in concluding that a challenge to the administrative decision of the Minister was at the heart of Perrott’s claim. The error lay in ignoring the fact that Perrott would be successful in a tort action if he satisfied the court that the Crown employee owed a duty to him to inform him about the need to annually renew the licence, that the employee breached the duty and that that breach resulted in Perrott losing the reasonable expectation or chance of obtaining his licence reinstatement with the Minister. With respect to Duffett and Donovan, the applications Judge did not err in concluding that the common theme of all the allegations against the Crown by these individuals was “inextricably tied to the cancelling of the Permit for the 2000 Snow Crab fishery and the refusal to issue a Permit for the 2001 Snow Crab fishery”. However, the Court of Appeal held that there was no reason why the action should have been struck instead of stayed. In the circumstances, those actions were to be stayed pending successful judicial review before the Federal Court, with the proviso that the Statements of Claim would be deemed to be struck out if the application for judicial review was not commenced within 30 days of the order.

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