ADMINISTRATIVE LAW |
Judicial Review |
Injunctions |
North of Smokey Fishermen's Assn. v. Canada (Attorney General)
T-2172-02
2003 FCT 33, Layden-Stevenson J.
15/1/03
11 pp.
Application for interlocutory injunction enjoining Minister from approving 4Vn winter cod fishery pending judicial review of purported approval--North of Smokey Fishermen's Association (NOSFA) seeking to quash decision and to prohibit Minister from making such decision on basis would exceed Minister's authority, constituting abuse of Minister's discretion--General principle applying to injunction against Minister stated in Esquimalt Anglers' Assn. v. Canada (1988), 21 F.T.R. 304 (F.C.T.D.)--Court does not have power to issue injunction against Crown or Minister of Crown where Minister acting as servant of Crown and Minister's functions lawfully authorized--Further, as stated in Glenview Corp. v. Canada (1990), 34 F.T.R. 304 (F.C.T.D.), Minister acting within powers granted by law not subject to injunction-- Specific ministerial powers delineated in Oceans Act, s. 43 and specifically stated to be subject to Department of Fisheries and Oceans Act, s. 4--Thus, Minister acted within powers granted by law--Applicant has not presented any serious challenge to legal capacity of Minister to open V4n cod winter fishery--Appropriate test for granting of interlocutory injunction set out in Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110: serious issue to tried; irreparable harm; balance of convenience--Court unable to conclude issue serious as difference of opinion, without more, does not constitute legal issue--Court found no allegation of harm to applicant directly--Harm must be demonstrated when private applicant alleging public interest at risk--Consideration of balance of convenience and public interest does not assist applicant to claim given government authority does not represent public interest--In present case, NOSFA seeking to have court manage or police fishery--Not function of court--Moreover, review of ministerial decision cannot be accomplished by interlocutory relief--NOSFA failed to satisfy requisite elements of test for interlocutory injunctive relief--Motion dismissed--Oceans Act, 1996, c. 31, s. 43--Department of Fisheries and Oceans Act, R.S.C., 1985, c. F-15, s. 4 (as am. by S.C. 1995, c. 5, s. 4).