FISHERIES
Judicial review of decision by Department of Fisheries and Oceans (DFO) refusing to issue licence for scientific purposes to applicant—DFO received licence application pursuant to Fishery (General) Regulations (Regulations), s. 52 filed by applicant, entity duly incorpora-ted in New Brunswick— Application for fishing licence for scientific purposes received at DFO regional office in Gulf area—Applicant wanted to collect information needed to produce and market fishing cards for fishing professionals, setting out distribution of various biological and commercial categories of snow crab in area of fishing zone 12—DFO asked applicant for additional information given first such application received in Gulf area—In particular, DFO wanted to know whether applicant consulted and obtained support of fishermen in certain zones for project and applicant informed DFO fishermen not consulted—By letter, DFO informed applicant’s counsel additional information required to fully assess licence application—Several days later, applicant filed two court proceedings: application for writ of mandamus ordering DFO to make decision on licence application and motion to handle application in question as specially‑managed proceeding—Court dismissed motion for specially‑managed proceeding—Further, given applicant’s failure to provide all information requested, DFO denied licence application— Director of Business Systems and Strategic Planning, informed applicant in writing that applicant agreed to Department making decision on licence application based solely on information provided to date and, without additional information requested, Department unfortunately could not complete assessment of application—Court issued direction indicating DFO rejected applicant’s licence application—DFO confirmed letter sent evidence of Minister’s decision not to issue licence sought by applicant—DFO again wrote to applicant explaining information required and again informing applicant of conditions applicable if licence issued—Applicant then filed application for judicial review at bar—Fisheries Act, s. 7, Regulations, ss. 51, 52 stating Minister has authority to issue fishing licences for scientific purposes—Minister’s power to issue fishing licences discretionary power, nothing by law requiring Minister to issue licence—Only limitation imposed on Minister in exercising discretion is duty to base decision on relevant considerations, avoid arbitrariness and act in good faith—Accepted in law that Minister may delegate right to act with respect to issuing scientific licences to Department officials—Director of Business Systems and Strategic Planning required authority for this purpose— Appropriate standard of review for decision subject of this application patent unreasonableness—First, Minister must base decision on relevant factors, avoid arbitrariness and act in good faith—Evidence established that DFO’s custom to consult with persons in fishing industry potentially affected by decision—Applicant failed to establish patently unreasonable for DFO to request consultation before deciding whether or not to issue licence—DFO asked applicant for information regarding potential impact of project, including sampling procedures—Obtaining sampling procedures relevant in particular because reviewing procedures enables DFO to determine whether all steps taken to minimize impact on species and species’ habitat—DFO entitled to request documents and information to assist DFO in making decision —Evidence established decision on applications for fishing licence for scientific purpose made after consulting several DFO officials with various specialties—In accordance with Regulations, ss. 22(1)(h), (i), (j) Minister entitled to impose condition on licence regarding “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”, “the specific location at which fishing gear is permitted to be set” and “the distance to be maintained between fishing gear”—Without specific information regarding applicant’s intended use of fishing gear, Minister not able to exercise power conferred under Regulations, ss. 22(1)(h), (i), (j)—Not unreasonable for DFO to require geographical coordinates of project to include in licence conditions since entitled to impose conditions on licence regarding “the waters in which fishing is permitted to be carried out” (Regulations, s. 22(1)(c))—Under Regulations, p. 22(1)(t), DFO entitled to indicate in licence condition concerning “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”—Applicant through inaction prevented Minister from exercising discretion— Minister imposed conditions, as Minister entitled to do under Regulations, and no evidence acted in bad faith or arbitrarily —Minister observed rules of natural justice and fairness in assessing applicant’s licence application—Minister informed applicant wanted to discuss project therewith and applicant responded by initiating proceedings for issuance of writ of mandamus—Clear applicant had no desire for discussions with DFO—DFO made enough effort to give applicant opportunity to explain project—Accordingly, rules of natural justice applicable in issuing licence properly observed— Application dismissed—Fisheries Act, R.S.C., 1985, c. F‑14, s. 7—Fishery (General) Regulations, SOR/93‑53, ss. 22(1)(c), (h), (i), (j), (t), 51, 52.
Recherches Marine Inc. v. Canada (Attorney General) (T‑1963‑04, 2005 FC 1287, Pinard J., order dated 29/9/05, 12 pp.)