FISHERIES
Judicial review of decision of Minister of Fisheries and Oceans (Minister) dated August 25, 2004, denying request for re‑issuance of exploratory crab licence—Applicant, fisherman, engaged in commercial fishery in Newfoundland—Operating two boats: 75‑foot stern trawler named M.V. Bear Cove Point; 95‑foot multi‑purpose trawler named M.V. Sandy Joanne— Exploratory crab licence issued to appellant in 1995 for fishing snow crab in North Atlantic Fisheries Organization (NAFO) Divisions 3LMNO, offshore Newfoundland, outside Canada’s 200‑mile limit—Licence issued for use on M.V. Bear Cove Point, re‑issued annually since 1996—In 1996, exploratory scallop licence issued to applicant for harvesting scallops in NAFO Divisions 3LNO outside 200‑mile limit—Licence issued for use on M.V. Sandy Joanne, re‑issued annually since 1997—In 1998, Department of Fisheries and Oceans (DFO) granting permission to applicant to conduct snow crab “survey” in NAFO Division 3N outside 200‑mile limit to determine existence of snow crab stocks in area—Exploratory crab licence (second crab licence) issued for 30 days for use on M.V. Sandy Joanne—Licence extended 15 days—Because of successful exploratory work, applicant applied for re‑issuance of both exploratory crab licences— Crab licence for M.V. Bear Cove Point re‑issued but not for M.V. Sandy Joanne—Regional Director General denied appeal from decision not to re‑issue second licence—On appeal, Atlantic Fisheries Appeal Board recommended denial of appeal to Minister, noting existence of moratorium on issuance of new exploratory crab licences since 1996— Minister accepted recommendation, denied request for re‑issuance of second crab licence—On judicial review, Federal Court allowed application on basis Appeal Board, Minister failed to consider whether M.V. Sandy Joanne operating as replacement vessel or under independent licence issued in October 1998—Matter remitted to Minister for re‑determination in accordance with Federal Court’s reasons—Differently constituted Appeal Board convened to determine whether M.V. Sandy Joanne operating as replacement vessel or under independent licence issued in October 1998—Concluded second independent licence issued but recommended non‑renewal—Upon receipt of recommen-dation, Minister denied applicant’s request for second exploratory snow crab licence for M.V. Sandy Joanne on August 25, 2004—Application for judicial review of Minister’s second decision—Standard of review of patent unreasonableness applying to Minister’s decision—Because reasonable to infer Appeal Board’s decision formed one of bases for Minister’s decision, Appeal Board’s decision reviewable—However, Appeal Board’s discretion in making recommendations regarding issuing of licences not as broad as Minister’s discretion—Therefore decision reviewable on standard of reasonableness simpliciter—Appeal Board’s role is to make recommendations to Minister on licensing appeals by determining if appellant treated fairly in accordance with department’s licensing policies, practices, procedures—Also to determine existence of extenuating circumstances for deviating therefrom—Although DFO policies not specifically referred to, Appeal Board considered relevant policies since policies listed in summary preceding recommendation—Some DFO policies submitted to Appeal Board clearly indicating fishers, such as applicant, not automatically entitled to re‑issuance of licences—Under legislation, regulations, fishing licences issued at Minister’s discretion—Documents issued not conferring rights or privileges—Evidence showing existence of moratorium on issuance of crab licences since 1996—No other enterprise having more than one exploratory crab licence for NAFO Divisions 3LNO outside 200 miles—Moreover, nothing suggesting DFO officials had made representations to applicant that second crab licence, valid for 30 days, would be re‑issued in future—Given evidence before Appeal Board, recommendation to deny applicant’s appeal not unreasonable, unfair—Federal Court previously confirmed fishing licence is privilege granted by Minister; licence holder having no vested right to renewal—Applicant had no reasonable or legitimate expectation to obtain second commercial crab fishing licence in 1999 because of 30‑day licence granted in 1998 to conduct crab survey—Successful exploratory work resulted in substantial increase of applicant’s 1999 crab licence quota for M.V. Bear Cove Point—Composition, structure of second Appeal Board not raising reasonable apprehension of bias—Board consisted of three voting members, one DFO employee—Latter not voting on recommendation but present during in camera deliberations of Appeal Board—Test for reasonable apprehension of bias set out by Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369—DFO employee acting as secretary, providing background information—Role not to advocate for any position—Played no role in deliberations, did not interfere with three voting members’ deliberations—Informed person would realize Appeal Board providing Minister with non‑binding independent advice—Would also realize Appeal Board not freestanding tribunal with secretariat independent from DFO—Duty of fairness flexible—Appeal Board hearing conducted in accordance with principles of procedural fairness—Presence of DFO officer as secretary, resource person for Appeal Board not creating reasonable apprehension of bias—Strict requirements of natural justice regarding bias should not be imposed on Appeal Board—Board’s independence not compromised by fact DFO employee served as secretary—Application dismissed.
Fennelly v. Canada (Attorney General) (T‑1699‑04, 2005 FC 1291, Kelen J., order dated 21/9/05, 24 pp.)