FISHERIES |
Aucoin v. Canada (Minister of Fisheries and Oceans)
T-662-01
2001 FCT 800, Rouleau J.
17/7/01
22 pp.
Judicial review of Minister of Fisheries and Oceans' decision imposing levy on holders of traditional snow crab fishing licences in addition to required licence fees for 2001 fishing season--130 snow crab fishers licensed to harvest in Zone 12--In 1995, as result of amendments to then Unemployment Insurance Act, employees in snow crab processing plants unable to work sufficient number of weeks to qualify for benefits upon termination of seasonal employment--Officials of Department of Fisheries and Oceans initiated discussions with Zone 12 snow crab fishers with view to implementing program to subsidize snow crab plant workers--Idea to create fund to which snow crab fishers, province of New Brunswick, would contribute--Fund would undertake make-work projects in cooperation with Province so that laid-off plant workers, some crew members of fishing vessels would acquire sufficient number of weeks of insurable employment to qualify for benefits--On purely voluntary basis, licensed snow crab fishers entered agreement in principle in 1996 with Department whereby agreed to contribute certain percentage of gross revenue to fund to provide financial support for creation of make-work projects for laid-off on-shore snow crab plant workers--Agreement conditional--Respondent Partenariat incorporated in 1999--Neither owns, operates any fishing vessel, nor engaged in fishing--Under scheme, 20% of each fisher's quota withheld, transferred to Partenariat; upon payment by each fisher to Partenariat of sum of money, based on total per pound quota, Partenariat would notify Department, retransfer money to "fund", and Departmental officials would re-release withheld 20% of quota to fisher--Bill C-62, which would have authorized Minister to enter into fishery management agreements, given first reading in House of Commons in October 1996, but died on order paper in April 1997--Snow crab fishers continued to voluntarily make payments to Partenariat without question until February 2000 when Auditor General questioned legality of scheme--Information bulletin issued by Department indicates agreement presumed ratification by Parliament--When Department announcing adoption of same procedure for 2001 snow crab management plan applicant launching this motion--Prior to hearing all of applicants paid in extra levy in order to free up 20% withheld quota; Department issued temporary seasonal snow crab licences for 2001 in name of Partenariat representing 20% of withheld snow crab quota--Application allowed--(1) Application not premature, speculative--(2) Fisheries Act, s. 7 giving Minister absolute discretion to issue licences for fisheries, fishing--Licences for snow crab fishing issued to Partenariat which owned no fishing vessel and was not engaged in fishing industry--Minister's discretion not extending to assisting in setting up unemployment benefit scheme, collecting additional levies--Minister's conduct in this regard neither supported by authority nor justified for any statutory purpose--Fisheries Act to protect, regulate fisheries--Minister not acting in good faith--Regime established for purpose of offering financial aid to seasonal employees for area fish plants who no longer qualify for employment insurance benefits wholly unrelated to issuance of leases or licences for proper management, control of fisheries, conservation, protection of fish--R. v. CAE Industries Ltd., [1986] 1 F.C. 129 (C.A.) cited as authority for proposition Minister's authority to enter into agreement found in general authority to enter contract binding on Crown and in Financial Administration Act, s. 21--Unlike CAE Industries, Cabinet not authorizing Joint Project Agreement herein--Minister lost discretion to negotiate agreement involving withholding percentage quota when Bill C-62 died on order paper--Minister's decision to transfer 20% of quota to Partenariat null, void, ultra vires powers under Fisheries Act--Fisheries Act, R.S.C., 1985, c. F-14, s. 7--Financial Administration Act, R.S.C., 1985, c. F-11, s. 21--Unemployment Insurance Act, R.S.C., 1985, c. U-1.