A‑507‑05
2006 FCA 425
Marine Research Inc./Recherches Marines Inc., an entity duly incorporated under the laws of the province of New Brunswick (Appellant)
v.
Attorney General of Canada (Respondent)
Indexed as: Marine Research Inc. v. Canada (Attorney General) (F.C.A.)
Federal Court of Appeal, Desjardins, Nadon, Pelletier JJ.A.—Ottawa, November 15; December 22, 2006.
Fisheries — Appeal from Federal Court decision dismissing application for judicial review of Minister of Fisheries and Oceans’ refusal to grant licence to fish for scientific purposes under Fishery (General) Regulations — Appellant refusing to provide additional information requested by Department of Fisheries and Oceans before issuing licence — Regulations, s. 8, permitting Minister to require additional relevant information, s. 22, permitting Minister to impose conditions on licence, valid reasoning in Re Peralta et al. and The Queen in right of Ontario et al. in light of Minister’s request for consultation with stakeholders in fishing industry to complete application not unreasonable — Obligation to consult preliminary to Minister’s decision to issue licence, not condition on licence — Minister having broad discretion under Act, s. 7 to issue, refuse licence — Minister’s other requests (i.e. for sampling procedures, information regarding use of fishing gear, stations’ geographic locations) also not unreasonable, Minister having discretion to determine relevance of information requested — Appeal dismissed.
Administrative Law — Appeal from Federal Court decision dismissing application for judicial review of Minister of Fisheries and Oceans’ refusal to grant licence to fish for scientific purposes under Fishery (General) Regulations — Validity of Regulations, ss. 8 (permitting Minister of require additional revelevant information), 22 (permitting Minister to impose licence conditions) — Distinction between, legislative, administrative acts reviewed — Applying Re Peralta et al. and The Queen in right of Ontario et al., ss. 8, 22 valid — Regulations stating rules of conduct otherwise described as general policy — S. 22 establishing non‑exhaustive list of points of reference for Minister in imposing conditions on fishing licences — S. 22 administrative delegation supported by Act, s. 43(a), (b), (g), (l) — Appeal dismissed.
This was an appeal from a Federal Court decision dismissing an application for judicial review of the Minister of Fisheries and Oceans’ refusal to grant the appellant a licence to fish for scientific purposes under the Fishery (General) Regulations (Regulations) adopted under the Fisheries Act (Act). The appellant applied to the Department of Fisheries and Oceans (the Department) for a licence to fish for scientific purposes. The project involved gathering data to produce and market fishing maps indicating the distribution of different biological and commercial categories of snow crab in the Gulf of St. Lawrence. The maps were meant primarily for professional fishermen but would be made available to all. The appellant had to spend time out at sea to gather the necessary data and intended to use various types of fishing gear and use confidential sampling procedures in gathering non‑commercial crab species to complete its activities. Because of climactic dangers involved, the research activities had to begin before a specific date in order to be completed. Given the application’s unique nature, the Department demanded additional information and asked the appellant to consult with stakeholders in the fishing industry in accordance with a policy then being drafted that applied to persons seeking fishing licences. The appellant was informed that the licence would be subject to a condition to the effect that it would be required to provide the Department with the appellant the data gathered. However, the appellant refused to divulge certain requested information and its application for a fishing licence was denied. Although the Department offered to discuss the matter further, the appellant applied to the Federal Court of Canada for judicial review.
The issues were whether sections 8 (permitting the Minister to require additional relevant information) and 22 (permitting the Minuster to impose conditions on a licence) of the Regulations are invalid and whether the Minister’s dismissal of the application was unreasonable.
Held, the appeal should be dismissed.
The fundamental distinction between an administrative act and a legislative act is that “[a] legislative act is the creation and promulgation of a general rule of conduct without reference to particular cases; an administrative act cannot be exactly defined, but it includes the adoption of a policy, the making and issue of a specific direction, and the application of a general rule to a particular case in accordance with the requirements of policy or expediency or administrative practice.” The Regulations state a significant number of rules of conduct that could be described as general policy. Section 22 of the Regulations is of the same nature as subsections 29(4) and (5) of the Ontario Fishery Regulations which were declared valid as an administrative delegation in the Ontario Court of Appeal decision of Re Peralta et al. and The Queen in right of Ontario et al., which was affirmed by the Supreme Court of Canada. Section 22 establishes a non‑exhaustive list of subjects serving as points of reference for the Minister in establishing conditions when issuing fishing licences. This administrative delegation is supported by section 43 of the Act which lists permissible purposes of regulations and in particular paragraphs 43(a), (b), (g), and (l) of the Act. The validity of sections 8 and 22 of the Regulations is governed by Peralta. The delegation in this case was not attributing pure discretionary powers, which would be invalid. Finally, Peralta established that the word “respecting”, which is used in section 22, allows for a delegation of the administration of the regulations.
With respect to the Federal Court’s decision that the Minister had not acted unreasonably in requiring that the appellant to consult all of the stakeholders in the fishing industry who could be affected by the application, the obligation to consult imposed on the appellant was not in the context of a condition indicated on the licence in accordance with the terms of section 22 of the Regulations but rather a consultation preliminary to the Minister’s decision whether to issue a licence under section 7 of the Act. Section 7, which confers a very broad discretion on the Minister, authorized him to refuse a licence if the requested consultation was not held. Therefore, the Federal Court’s decision was not patently unreasonable.
The Federal Court’s finding that obtaining sampling procedures was relevant to the Minister’s determination of whether all steps had been taken to minimize the impact on the species and their habitat, was not patently unreasonable. The Minister has the discretion to determine the relevance of information that he requests. Finally, the Federal Court did not err in finding that the Department’s requests for information regarding the use of the fishing gear, geographic locations of the stations or for the information gathered by the appellant were not unreasonable.
statutes and regulations judicially
considered
Atlantic Fishery Regulations, 1985, SOR/86‑21.
Fisheries Act, R.S.C. 1970, c. F‑14, s. 34.
Fisheries Act, R.S.C., 1985, c. F‑14, ss. 7, 43 (as am. by S.C. 1991, c. 1, s. 12).
Fishery (General) Regulations, SOR/93‑53, ss. 3(4)(a), 8, 22 (as am. by SOR/93‑333, s. 4), 27 (as am. by SOR/95‑242, s. 3), 30, 31, 34, 51, 52.
Ontario Fishery Regulations, C.R.C., c. 849, ss. 29(4),(5), 39(5),(6), 46(2), 59(1), Sch. VIII.
cases judicially considered
applied:
Peralta et al. and The Queen in right of Ontario et al., Re (1985), 49 O.R. (2d) 705; 7 O.A.C. 283 (C.A.); affd sub nom. Peralto v. Ontario [1988] 2 S.C.R. 1045; (1988), 66 O.R. (2d) 543; 56 D.L.R. (4th) 575; 89 N.R. 323; 31 O.A.C. 319; Prairie Acid Rain Coalition v. Canada (Minister of Fisheries and Oceans), [2006] 3 F.C.R. 610; (2006), 265 D.L.R. (4th) 154; 21 C.E.L.R. (3d) 175; 345 N.R. 374; 2006 FCA 31; Tucker v. Canada (Minister of Fisheries and Oceans) (2001), 288 N.R. 10; 2001 FCA 384; affg (2000), 197 F.T.R. 66 (F.C.T.D.).
referred to:
Brant Dairy Co. Ltd. et al. v. Milk Commission of Ontario et al., [1973] S.C.R. 131; (1972), 30 D.L.R. (3d) 559; Dynamex Canada Inc. v. Canadian Union of Postal Workers, [1999] 3 F.C. 349; (1999), 99 CLLC 220,037; 241 N.R. 319 (C.A.); Canadian Institute of Public Real Estate Companies et al. v. Corporation of the City of Toronto, [1979] 2 S.C.R. 2; (1979), 7 M.P.L.R. 39; 8 O.M.B.R. 385; 25 N.R. 108; Butler Metal Products Company Limited v. Canada Employment and Immigration Commission, [1983] 1 F.C. 790; (1982), 44 N.R. 271 (C.A.); Swan v. Canada, [1990] 2 F.C. 409; (1990), 67 D.L.R. (4th) 390; 31 F.T.R. 241 (T.D.); Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; (1999), 174 D.L.R. (4th) 193; 14 Admin. L.R. (3d) 173; 1 Imm. L.R. (3d) 1; 243 N.R. 22.
authors cited
Brown, Donald J. M. and John M. Evans. Judicial Review of Administrative Action in Canada, looseleaf. Toronto: Canvasback, 1998.
de Smith’s Judicial Review of Administrative Action, 4th ed. by J. M. Evans. London: Stevens & Sons, 1980.
Garant, Patrice. Droit administratif, Cowansville, 5th ed. Que.: Yvon Blais, 2004.
APPEAL from a Federal Court decision ((2005), 284 F.T.R. 10; 2005 FC 1287) dismissing an application for judicial review of the Minister of Fisheries and Oceans’ refusal to grant the appellant a licence to fish for scientific purposes under section 52 of the Fishery (General) Regulations. Appeal dismissed.
appearances:
Brigitte Sivret for appellant.
Rosemarie Millar for respondent.
solicitors of record:
Brigitte Sivret, Bathurst, New Brunswick, for appellant.
Deputy Attorney General of Canada for respondent.
The following is the English version of the reasons for judgment rendered by
[1]Desjardins J.A.: The appellant is appealing a decision by the Federal Court (Mr. Justice Pinard), (2005), 284 F.T.R. 10, dismissing its application for judicial review of the refusal by the Minister of Fisheries and Oceans (the Minister) to grant it a licence to fish for scientific purposes under section 52 of the Fishery (General) Regulations, SOR/93‑53 (the Regulations) adopted under the Fisheries Act, R.S.C., 1985, c. F‑14 (the Act).
A. THE FISHING LICENCE
[2]On August 12, 2004, the appellant, a profit‑making corporation financed by private investors, applied to the regional office of the Department of Fisheries and Oceans (the Department) for a licence to fish for scientific purposes.
[3]The project involved gathering the data necessary to produce and market fishing maps indicating the distribution of different biological and commercial categories of snow crab in the southwestern Gulf of St. Lawrence. These high‑definition maps, resembling navigation maps, were meant primarily for professional fishermen. The appellant intended, however, to make them available to all Canadians.
[4]In order to gather the necessary data, the appellant planned to spend at least 45 days out at sea between September and December. It intended to use various types of fishing gear and make use of confidential sampling procedures that it described as a [translation] “sampling optimized by stratification in accordance with geostatistic principles and optimized to limit costs.” No crab would be landed, but samples of non‑commercial species would eventually be gathered for scientific purposes. It was imperative that the research activities begin before the end of September 2004, failing which the project could not be completed, since it was too dangerous and difficult to effect this kind of outing in the winter.
[5]Given the unique nature of the application, the Department demanded additional information from the appellant, in accordance with the power conferred on the Minister under section 8 of the Regulations. The Department asked the appellant to provide it with a copy of the sampling procedures, a list of the station locations for each type of gear used as well as the coordinates of the geographical region of the project. It also asked it to consult with stakeholders in the fishing industry—namely fisher groups and the First Nations members who fished in the contemplated areas—and to send their comments and reactions regarding the project to the Department. A policy in the process of being drafted provided that the Department could require that a person seeking a fishing licence be bound to consult stakeholders in the fishing industry. Until that time, the Department had customarily carried out such consultations itself.
[6]The Department informed the appellant that the licence would be subject to a condition to the effect that it would be required to send the Department the data gathered so that it could analyze it later.
[7]On September 23, 2004, the appellant sent the Department a detailed letter from its expert, Dr. Gérard Y. Conan. However, the appellant refused to divulge certain information that it had been asked to provide. On October 7, 2004, the Department advised the appellant of its decision not to issue a fishing licence. It said that it was unable to complete its evaluation of the application without the information requested.
[8]In a subsequent letter dated November 3, 2004, the Department stated that it was prepared to meet with the appellant in order to discuss and clarify the information and respective positions.
[9]The appellant applied to the Federal Court of Canada. Mr. Justice Pinard dismissed the application for judicial review.
B. THE RELEVANT STATUTORY PROVISIONS
[10]The relevant provisions of the Act are the following [s. 43 (as am. by S.C. 1991, c. 1, s. 12)]:
Fishery Leases and Licences
7. (1) Subject to subsection (2), the Minister may, in his absolute discretion, wherever the exclusive right of fishing does not already exist by law, issue or authorize to be issued leases and licences for fisheries or fishing, wherever situated or carried on.
. . .
Regulations
43. The Governor in Council may make regulations for carrying out the purposes and provisions of this Act and in particular, but without restricting the generality of the foregoing, may make regulations
(a) for the proper management and control of the sea‑coast and inland fisheries;
(b) respecting the conservation and protection of fish;
(c) respecting the catching, loading, landing, handling, transporting, possession and disposal of fish;
(d) respecting the operation of fishing vessels;
(e) respecting the use of fishing gear and equipment;
(e.1) respecting the marking, identification and tracking of fishing vessels;
(e.2) respecting the designation of persons as observers, their duties and their carriage on board fishing vessels;
(f) respecting the issue, suspension and cancellation of licences and leases;
(g) respecting the terms and conditions under which a licence and lease may be issued;
(g.1) respecting any records, books of account or other documents to be kept under this Act and the manner and form in which and the period for which they shall be kept;
(g.2) respecting the manner in which records, books of account or other documents shall be produced and information shall be provided under this Act;
(h) respecting the obstruction and pollution of any waters frequented by fish;
(i) respecting the conservation and protection of spawning grounds;
(j) respecting the export of fish or any part thereof from Canada;
(k) respecting the taking or carrying of fish or any part thereof from one province to any other province;
(l) prescribing the powers and duties of persons engaged or employed in the administration or enforcement of this Act and providing for the carrying out of those powers and duties; and
(m) where a close time, fishing quota or limit on the size or weight of fish has been fixed in respect of an area under the regulations, authorizing persons referred to in paragraph (l) to vary the close time, fishing quota or limit in respect of that area or any portion of that area. [Emphasis added.]
[11]The following provisions of the Regulations are also relevant [s. 22 (as am. by SOR/93-333, s. 4)]:
Application for Documents
8. (1) The Minister may require an applicant for a document to submit
(a) such information in addition to that included in the application as may reasonably be regarded as relevant; and
(b) a statutory declaration verifying the information given in the application or verifying the information submitted under paragraph (a).
(2) An application from a corporation for a document shall be signed by an officer of the corporation.
. . .
Conditions of Licences
22. (1) For the proper management and control of fisheries and the conservation and protection of fish, the Minister may specify in a licence any condition that is not inconsistent with these Regulations or any of the Regulations listed in subsection 3(4) and in particular, but not restricting the generality of the foregoing, may specify conditions respecting any of the following matters:
. . .
(c) the waters in which fishing is permitted to be carried out;
. . .
(h) the type, size and quantity of fishing gear and equipment that is permitted to be used and the manner in which it is permitted to be used;
(i) the specific location at which fishing gear is permitted to be set;
(j) the distance to be maintained between fishing gear;
. . .
(t) the time within which findings and data obtained as a result of fishing for an experimental or scientific purpose are to be forwarded to the Minister;
. . .
Licence
51. No person shall fish for experimental, scientific, educational or public display purposes unless authorized to do so under a licence.
52. Notwithstanding any provisions of any of the Regulations listed in subsection 3(4), the Minister may issue a licence if fishing for experimental, scientific, educational or public display purposes would be in keeping with the proper management and control of fisheries. [Emphasis added.]
[12]It is worthwhile to add section 34 of the Fisheries Act, R.S.C. 1970, c. F‑14, the precursor of what is now section 43 of the Act, and subsections 29(4) and (5), 39(5) and (6), 46(2) and 59(1) of the Ontario Fishery Regulations, C.R.C., c. 849, adopted pursuant to the Fisheries Act, R.S.C. 1970, c. F‑14. I will refer to these provisions in the analysis of the decision of the Court of Appeal for Ontario in Re Peralta et al. and The Queen in right of Ontario et al. (1985), 49 O.R. (2d) 705 (Peralta), affirmed by the Supreme Court of Canada in [1988] 2 S.C.R. 1045.
[13]Section 34 of the Fisheries Act, R.S.C.1970, c. F‑14, reads as follows:
Regulations
34. The Governor in Council may make regulations for carrying out the purposes and provisions of this Act and in particular, but without restricting the generality of the foregoing, may make regulations
(a) for the proper management and control of the seacoast and inland fisheries;
(b) respecting the conservation and protection of fish;
(c) respecting the catching, loading, landing, handling, transporting, possession and disposal of fish;
(d) respecting the operation of fishing vessels;
(e) respecting the use of fishing gear and equipment;
(f) respecting the issue, suspension and cancellation of licences and leases;
(g) prescribing the terms and conditions under which a licence or lease is to be issued;
(h) respecting and obstruction and pollution of any waters frequented by fish;
(i) respecting the conservation and protection of spawning grounds;
(j) respecting the export of fish or any part thereof from Canada;
(k) respecting the taking or carrying of fish or any part thereof from one province of Canada to any other province;
(l) prescribing the powers and duties of persons engaged or employed in the administration or enforcement of this Act and providing for the carrying out of those duties and powers; and
(m) authorizing a person engaged or employed in the administration or enforcement of this Act to vary any close time or fishing quota that has been fixed by the regulations.
[14]The Ontario Fishery Regulations, C.R.C., c. 849, read in part as follows:
Licences Other than Angling Licences
29. . . .
(4) The Minister may, in any commercial fishing licence, designate
(a) the waters and the species, size and quantity of fish for which the licence is valid;
(b) the means of taking the fish for which the licence is valid;
(c) the use for which any fish may be taken;
(d) the number of nets and the size of the mesh thereof and any other fishing devices that may be used;
(e) the dimensions of nets or other fishing devices and the materials that may be used in the construction thereof;
(f) the period of time during which fishing operations may be conducted; and
(g) the person or persons who may conduct fishing operations under the licence.
(5) The Minister may in any licence impose such terms and conditions as he deems proper and that are not inconsistent with these Regulations.
. . .
Special Conditions of Gill Net Licences
39. (1) This section applies only to commercial fishing in Lake Nipigon.
. . .
(5) No holder of a commercial fishing licence that authorizes the use of not more than 12,000 yards of gill net shall take more than 25 tons of yellow pickerel, sturgeon, lake trout and whitefish in the aggregate.
(6) No holder of a commercial fishing licence that authorizes the use of more than 24,000 yards of gill net shall take more than 50 tons of yellow pickerel, sturgeon, lake trout and whitefish in the aggregate.
. . .
Conditions of Trawl Net Licences
46. . . .
(2) Notwithstanding the terms and conditions of any commercial fishing licence that authorizes the use of a trawl net, the holder of such a licence, while trawling for smelt in Lake Erie,
(a) shall not take more than 20 tons of fish during a period of 7 days ending on a Saturday; and
(b) may take and retain, in addition to smelt, any other commercial fish, except that the aggregate quantity of any blue pickerel, perch, sauger, sturgeon, white bass or yellow pickerel taken in 1 day shall not exceed 10 per cent of the total weight of the catch taken on that day.
. . .
Underweight or Undersized Fish Taken by Means Other than Angling
59. (1) Subject to subsection (2) and notwithstanding anything else contained in these Regulations, where a person takes fish by means other than angling, he may retain a quantity of any underweight or undersized fish of any species not exceeding 10 per cent of the total weight of that species taken at that time.
C. ISSUES RAISED IN THIS APPEAL
[15]The appellant raises three issues:
1. The invalidity of sections 8 and 22 [as am. by SOR/93-333. s. 4] of the Regulations;
2. The appropriate standard of review; and
3. The errors by the first Judge.
1. The invalidity of sections 8 and 22 of the Regulations
[16]The appellant has raised, for the first time in this litigation, an issue that was not debated at trial. This is the invalidity of sections 8 and 22 of the Regulations. There is therefore no need to consider the standard of review.
(a) Appellant’s submissions
[17]The appellant submits that Regulations ought not to confer discretionary power. They should rather establish standards.
[18]The appellant argues that by empowering the Governor in Council to adopt regulations, Parliament wanted to give the Governor in Council some latitude without enabling him to bypass the obligation to incorporate his rule of conduct in the regulations.
[19]The appellant states that the Supreme Court of Canada strongly opposes the practice of not exercising a regulatory power by transforming it into an administrative discretion.
[20]In this case, the appellant says, sections 8 and 22 of the Regulations do not establish any standard. The Act, at section 43, delegates to the Governor in Council the power to make regulations respecting the management and control of fisheries, the conservation of fish and the issue of licences. The Regulations, however, at section 22, give carte blanche to the Minister to impose any condition that he deems desirable or relevant so long as the purpose of that condition is the proper management and control of fisheries. The appellant argues that this type of delegation is invalid, referring to the following supporting authorities: Patrice Garant, Droit administratif, 5th ed., Cowansville, Quebec: Yvon Blais, 2004, at page 341; Brant Dairy Co. Ltd. Et al. v. Milk Commission of Ontario et al., [1973] S.C.R. 131; Dynamex Canada Inc. v. Canadian Union of Postal Workers, [1999] 3 F.C. 349 (C.A.); Canadian Institute of Public Real Estate Companies et al. v. Corporation of the City of Toronto, [1979] 2 S.C.R. 2; Butler Metal Products Company Limited v. Canada Employment and Immigration Commission, [1983] 1 F.C. 790 (C.A.); Swan v. Canada, [1990] 2 F.C. 409 (T.D.).
[21]The appellant argues that the decision of the Court of Appeal for Ontario in Peralta, affirmed by the Supreme Court of Canada, is different from this case because in Peralta, the Ontario Fishery Regulations, C.R.C., c. 849, adopted under the authority of the Fisheries Act (federal) in the version that was then in force (R.S.C. 1970, c. F‑14), and section 34 of that statute (which corresponds to section 43 of the Act), had divided Ontario waters into special areas and had set global quotas according to the species of fish found in those waters for commercial fishing purposes. Therefore the Court of Appeal for Ontario, and then the Supreme Court of Canada, had no difficulty, it said, in finding that there had been a valid administrative delegation to Ontario’s Minister (provincial) of Natural Resources to set, in each case, specific quantitative limits on issuing fishing licences. The appellant adds that in this case, there was no general policy established by the Governor in Council, so that the delegation by the Governor in Council to the Minister (federal) of Fisheries and Oceans was not normative and constituted an invalid legislative delegation.
(b) Analysis
[22]It is useful from the outset to point out the fundamental distinction that should be made between an administrative act and a legislative act. In Peralta, the Court of Appeal for Ontario, which, bear in mind, was affirmed by the Supreme Court of Canada, at pages 728‑729, referred to an excerpt from de Smith’s Judicial Review of Administrative Action, 4th ed., 1980 [at page 71], which explains the difference between an administrative act and a legislative act as follows:
A distinction often made between legislative and administrative acts is that between the general and the particular. A legislative act is the creation and promulgation of a general rule of conduct without reference to particular cases; an administrative act cannot be exactly defined, but it includes the adoption of a policy, the making and issue of a specific direction, and the application of a general rule to a particular case in accordance with the requirements of policy or expediency or administrative practice. [Emphasis added.]
[23]The Court of Appeal for Ontario then added at page 729:
This passage was quoted by Dickson J. speaking for the Supreme Court of Canada in Re British Columbia Development Corp. et al. and Friedmann et al. (1984), 14 D.L.R. (4th) 129, [1985] 1 W.W.R. 193, 55 N.R. 298 sub nom. British Columbia Development Corp. v. Ombudsman, and he went on to say (p. 148 D.L.R., p. 312 N.R.):
I find support for this view in the judgment of the Ontario Court of Appeal in Re Ombudsman of Ontario and Health Disciplines Board of Ontario et al., supra. The issue in that case concerned the extent of the Ontario Ombudsman’s jurisdiction. The word under consideration was “administrative”. Morden J.A. said, at p. 608:
“. . . it is reasonable to interpret ‘administrative’ as describing those functions of Government which are not performed by the Legislative Assembly and the Courts. Broadly speaking, it describes that part of Government which administers the law and governmental policy.”
In accord are Booth v. Dillon (No. 3), [1977] V.R. 143 (S.C.) at p. 144; Glenister v. Dillon, [1976] V.R. 550 (S.C.) at p. 558.
As I said earlier, it cannot have been the intention of Parliament that the Governor in Council would have the obligation to issue individual licences with individual quotas to thousands of commercial fishermen, with regard to the different areas of the large lakes being fished, having set out in part at least the maximum total quotas for the individual species and set out generally the waters from which they might be taken.
Dickson J. also quoted (p. 147 D.L.R., p. 312 N.R.) from 1 Hals., 4th ed., p. 7, para. 4, under the title “Administrative Law” as follows:
“The functions of government are classified as legislative; executive or administrative; judicial; and ministerial . . . executive and administrative acts entail the formulation or application of general policy in relation to particular situations or cases, or the making or execution of individual discretionary decisions . . .” [Emphasis added.]
[24]As such, there is no difference that would exclude the application of Peralta in this case.
[25]The issue in Peralta was the validity of a delegation of power under section 34 of the Fisheries Act (federal) (similar to the current section 43 of the Act) and subsections 29(4) and (5) of the Ontario Fishery Regulations (similar to section 22 of the Regulations at issue) to Ontario’s Minister (provincial) of Natural Resources pursuant to the Ontario Fishery Regulations (federal regulations).
[26]According to the Court of Appeal for Ontario, the decision by Ontario’s Minister of Natural Resources to set individual quotas stemmed from the application of a general policy determined pursuant to section 34 of the Fisheries Act and under subsections 39(5) and (6), 46(2) and 59(1) (these provisions were reproduced above) and Schedule VIII of the Ontario Fishery Regulations. The Court of Appeal for Ontario stated at page 723:
Mr. Scott forcefully argued that by virtue of s. 29(4) of the Ontario Fishery Regulations, the Governor in Council had effectively abdicated to the Minister all its powers which it and it alone could exercise. However, when one examines the regulations it is clear that this is not so. For example, they detail the general conditions applicable to commercial fishing and to gill‑nets and trawl-nets (ss. 30 to 43, 46, 57 to 59). They divide the waters of Ontario special areas and they establish global quotas for commercial fishing of particular species from those waters (ss. 34, 39(5) and (6), 46(2), 59(1)). Commercial fish are defined in the definition section, and their minimum sizes are set out in Sch. VIII of the Ontario Fishery Regulations. The effect of the regulations was to set general policy and in setting the individual quotas within those policy guide‑lines, the Minister was acting in a fashion consistent with the regulations.
[27]The Court of Appeal for Ontario stated, at page 727:
The Minister was only empowered to act within the scheme established generally by the Ontario Fishery Regulations. I cannot accept that the Minister was delegated what the Governor in Council alone was empowered to do and that the regulations merely repeated what Parliament had given to the Governor in Council. As I have already said, I have concluded that the Governor in Council was empowered by the wording of s. 34 to subdelegate as it did.
[28]Then at page 729, it held:
The action of the Minister in fixing the individual quotas for commercial fishermen for particular waters “was the application of general policy in relation to particular situations or cases” in the province. That action was, accordingly, administrative and did not fall within the ban on interdelegation of legislative power: see also Desrosiers v. Thinel, [1962] S.C.R. 515 at pp. 517‑8, 519.
[29]Therefore, the Minister’s power to set, in each case, limits on the amount of fish caught did not arise from a subdelegation of a legislative power but rather of an administrative power.
[30]It is true that in this case, the factual situation is different. The Minister’s refusal is founded on section 8 of the Regulations given that the appellant did not provide enough information, while in Peralta, the Minister (provincial) had issued a licence with limits on the amount of fish that could be contemplated by the licence. The Court of Appeal for Ontario was able to refer to the relevant provisions of the Ontario Fishery Regulations, which could be likened, overall, to the fishing quota in Ontario waters.
[31]As such, the Regulations in this case, even if they do not relate to any licence condition, since no licence was issued, nonetheless state a significant number of rules of conduct that could be described as general policy. Also, sections 27 [as am. by SOR/95-242, art. 3], addressing the identification of fishing gear, 30, on the obstruction of mesh, 31, on chafing gear, and 34, on the dumping and wasting of fish, are all examples of general rules of conduct that could apply in this case. To that, we must add the Atlantic Fishery Regulations, 1985, SOR/86‑21, applicable pursuant to paragraph 3(4)(a) of the Regulations. The Atlantic Fishery Regulations, 1985, include specific provisions on crab fishing which, in the event of conflict, prevail over the more general provisions of the Regulations.
[32]As for the rest, section 22 of the Regulations at issue is of the same nature as subsections 29(4) and (5) of the Ontario Fishery Regulations which were declared valid in Peralta as an administrative delegation. Section 22 of the the Regulations establishes a non‑exhaustive list of subjects serving as points of reference for the Minister in establishing conditions when issuing fishing licences. This administrative delegation is supported not only by paragraphs 43(a), (b) and (g), but also paragraph 43(l) of the Act. In my opinion, the validity of sections 8 and 22 of the Regulations at issue is governed by the decision of the Court of Appeal for Ontario in Peralta, which was affirmed by the Supreme Court of Canada. In this case, it was not a delegation attributing pure discretionary powers, which Professor Patrice Garant describes as being invalid (op. cit., page 341). (See also Donald J. H. Brown and John M. Evans, Judicial Review of Administrative Action in Canada, looseleaf, Toronto: Canvasback Publishing, 1998, Vol. 2, paragraphs 13:2000 and 13:2500).
[33]Finally, I note that section 22 of the Regulations employs the word “respecting” (concernant), the meaning of which was discussed in the following terms by the Court of Appeal for Ontario at page 717:
The use of the word “respecting” allows for a delegation of the administration of the regulations.
2. The appropriate standard of review
[34]I must now determine the appropriate standard of review.
[35]In Prairie Acid Rain Coalition v. Canada (Minister of Fisheries and Oceans), [2006] 3 F.C.R. 610, our Court explains at paragraphs 13‑14:
In Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, at paragraph 43, the Supreme Court dealt with the role of a Court of Appeal reviewing a decision of a subordinate court which itself was conducting a judicial review of a decision of an administrative tribunal. The Supreme Court found that “the normal rules of appellate review of lower courts as articulated in Housen, . . . apply”. The Housen approach (Housen v. Nikolaisen, [2002] 2 S.C.R. 235) provides that on a question of law the appellate court reviews the subordinate court decision on a standard of correctness (paragraph 8). On all other issues, the standard of review is palpable and overriding error (paragraphs 10, 19 and 28).
However, in more recent cases, the Supreme Court has adopted the view that the appellate court steps into the shoes of the subordinate court in reviewing a tribunal’s decision. See for example Zenner v. Prince Edward Island College of Optometrists, [2005] 3 S.C.R. 645, at paragraphs 29‑45, per Major J. See also Alberta (Minister of Municipal Affairs) v. Telus Communications Inc. (2002), 312 A.R. 40 (C.A.), at paragraphs 25‑26, per Berger J.A. The appellate court determines the correct standard of review and then decides whether the standard of review was applied correctly: see Zenner, at paragraphs 29‑30. In practical terms, this means that the appellate court itself reviews the tribunal decision on the correct standard of review. [Emphasis added.]
[36]It follows that the Court of Appeal must put itself in the position of the reviewing court. It must decide the appropriate standard of review and must determine whether the trial judge erred in applying this standard to the facts of the case.
[37]Our Court, in Tucker v. Canada (Minister of Fisheries and Oceans) (2001), 288 N.R. 10 affirming (2000), 197 F.T.R. 66 (F.C.T.D.), stated that the standard of review for a decision by the Minister made under section 7 of the Act is that of patent unreasonableness.
[38]The appellant argues that in Tucker the parties had agreed to apply this standard. In this case, it said, as the issue of a licence is a matter within the Minister’s discretionary power, the standard of reasonableness simpliciter should be applied instead, as it was in the decision of the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.
[39]It is true that in Tucker, the parties agreed on the appropriate standard of review. The agreement of the parties was not however determinative in setting that standard. Even if the first Judge, Mr. Justice Rothstein (sitting ex officio), agreed with the parties’ position, his reasoning was nevertheless developed in accordance with accepted legal requirements.
[40]Ultimately, the distinction between patent unreasonableness and unreasonableness simpliciter is difficult to assess. It is most important to remember that judicial deference is broader in the first case and less broad in the second.
3. The errors by the first Judge of first instance
(a) The need to consult
[41]The appellant argues that the Judge of first instance erred in finding that the Minister had not acted unreasonably in requiring that the appellant consult all of the stakeholders in the fishing industry who could be affected by the application.
[42]In order to do so, the Judge of first instance relied on evidence establishing that it was customary at the Department to consult interveners likely to be affected. Charles Gaudet, Acting Director, did, in fact, explain in his affidavit (A.B., Vol. 1, page 111) that snow crab is fished commercially by several fishers in the southwestern Gulf of St. Lawrence and that before making a decision that could have a negative impact, it was customary for the Department to consult the interveners potentially affected by the decision.
[43]The obligation to consult imposed on the appellant was not in the context of a condition indicated on the licence in accordance with the terms of section 22 of the Regulations. It was a consultation preliminary to the Minister’s decision whether or not to issue a licence under section 7 of the Act.
[44]Section 7, which confers a very broad discretion on the Minister, authorized him to refuse a licence if the requested consultation was not held. The finding of the first Judge is therefore not patently unreasonable.
(b) Sampling procedures
[45]The Judge of first instance defined (paragraph 19 of his reasons) sampling procedures as they relate to documents containing information pertaining to the methodology and details of the research activity, like the number of stations, type of trawl net, length of each line, crab parts measured on board the vessel and so on. He found that obtaining these procedures was relevant in particular in that reviewing them enabled the Minister to determine whether all steps had been taken to minimize the impact on the species and their habitat.
[46]The appellant submits that sampling procedures would have no impact, except on the quality and reliability of the results obtained. In its opinion, the quality of marine maps that the appellant would have produced for commercial purposes had nothing to do with the mandates to conserve and protect stock and proper fishery management. By requiring the disclosure of these procedures, it says, not only was the Department exceeding its mandate, but, by the very act, the Department was trying to appropriate intellectual property belonging to the appellant. Further, the appellant argued, to determine as he did, the Judge of first instance relied on evidence that lacked credibility, i.e. on the statements made by Charles Gaudet in his affidavit (A.B., Vol. 1, page 111), when he recognized, on cross‑examination, that it was the responsibility of the scientific group in his Department, and not his, to assess the impact of the project on the species and their habitat (A.B., Vol. 2, page 363).
[47]I am unable to make the determination proposed by the appellant that the information requested was not relevant and that this finding by the Judge of first instance is patently unreasonable. The Minister has the discretion to determine the relevance of information that he requests, information to be assessed by his delegates, and nothing in the record supports a finding that it was patently unreasonable to act in that way. The Judge of first instance therefore did not err in the manner alleged by the appellant.
(c) The fishing gear, the geographic location and the Department’s requests regarding the data gathered
[48]Finally, there is nothing in the findings of the Judge of first instance regarding the Department’s request for information regarding the use of the fishing gear and the geographic locations of the stations that would support a finding that the first Judge erred in such a way that we must intervene. The same applies to his determination that it was not unreasonable to require that the information gathered by the appellant be sent to the Department.
D. CONCLUSION
[49]I would dismiss the appeal with costs.
Nadon J.A.: I concur.
Pelletier J.A.: I concur.