The Appellants’ application for a shellfish tenure was found to be akin to a licence application. Thus, the duty of fairness was minimal, and the trial judge did not err in holding that the Appellants were not entitled to make submissions or to have an oral hearing.

Administrative law – Permits and licences – Judicial review – Natural justice – Procedural requirements and fairness – Discretion of delegated authority

Lorindale Holdings Ltd. v. British Columbia Assets and Land Corp., [2004] B.C.J. No. 1271, British Columbia Court of Appeal, June 16, 2004, Donald, Hall and Lowry JJ.A.

The Appellants were in the business of shellfish aquaculture. The Defendant was a provincial crown agency responsible for issuing shellfish aquaculture licences. The Defendant denied the Appellants’ application for a shellfish tenure on the basis of a policy against the stacking of tenures. The trial judge held that the decision to refuse the application was an administrative and discretionary one and that there was a good public policy reason behind it. The trial judge further held that the Defendant’s actions did not offend the principles of natural justice in that procedural fairness in this case did not require either an oral hearing or a request for submissions.

On appeal, the court noted that in determining what duty of procedural fairness is required, there is a continuum running from a purely administrative function at one end to a court-like judicial function at the other end. As the nature of the decision approached the judicial end, more protections were required. The court held that the Appellants’ application in this case was at the low end of the continuum. It was akin to a licence application which required an exercise of discretion in accordance with policy. The Appellants had to meet an eligibility requirement for their application to be considered, namely that the application, if granted, would not create a stacking of tenures. The Appellants’ application failed to meet this basic qualification, and it was rejected at the outset. The application was reviewed and brief reasons were given for its rejection. The procedure followed by the Defendant was fair.

The appeal was therefore dismissed.

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