Digests

Jose Pereira E. Hijos, S.A. v. Canada (Attorney General)

T-1602-95

2005 FC 1011, Gibson J.

26/7/05

137 pp.

On March 9, 1995, armed boarding parties from Canadian vessels boarded Spanish deep-sea freezer-trawler Estai within Northwest Atlantic Fisheries Organization (NAFO) Regulatory Area, i.e. outside Canadian fishery waters or on high seas--Arrested Estai, proceeded to St. John's, Newfoundland--Action for special, general, punitive, aggravated damages--Narrow issue of law whether Government of Canada had legal right to board, arrest Estai in international waters on March 9, 1995--Subsidiary issues related to allegedly "reckless" conduct of Canadian vessels in pursuit of Estai, use of water canon and gunfire in course of pursuit and use of armed boarding teams--Coastal Fisheries Protection Act, ss. 5.1, 5.2 recognizing straddling stocks on Grand Banks of Newfoundland threatened with extinction, prohibiting foreign fishing vessels of prescribed class from fishing for straddling stock--"Straddling stock" defined to mean "prescribed stock of fish", meaning any stock of fish prescribed by regulations made by Governor in Council-- March 3, 1995 amendments to Coastal Fisheries Protection Regulations including among such prescribed classes vessels flying flags of Portugal, Spain--Amendments declared to apply before published in Canada Gazette--Amending regulations published after March 9, 1995--(1) Plaintiffs urging regulations ultra vires on four grounds: not enacted as effective conservation and management measures for any straddling stocks, but rather to promote economic interests of Canada; vessels of Spain, Portugal not class of foreign fishing vessel for purposes of s. 5.2; discriminatory contrary to Charter, s. 15; not published in Canada Gazette until after March 9, 1995--Defendant, acting through Minister of Fisheries and Oceans, employees, agents, had legal right to arrest Estai, master in international waters on March 9, 1995--May 1994 amendments to Coastal Fisheries Protection Act defining NAFO Regulatory Area, authorized prescription by regulation of "straddling stocks" of fish and foreign fishing vessels constituting a class, declaring purpose of new s. 5.2 to enable Canada to take urgent action necessary to prevent further destruction of stocks--March 3, 1995 Regulations prescribed Greenland halibut to be straddling stock, vessels flying flags of Spain, Portugal added as prescribed class, absolutely prohibiting fishing for Greenland halibut in NAFO Regulatory area--No basis on which to conclude Governor in Council's motivation in enacting amending regulations on March 3, 1995 not for conservation, management purposes in relation to straddling stock, Greenland halibut--No basis on which to conclude fishing vessels of Spain, Portugal cannot constitute prescribed class--No evidence supporting proposed interpretation of "class" restricting meaning to size, tonnage, construction, fishing equipment used, species sought, method of propulsion--Evidence establishing continuing threat to endangered species of straddling stocks in NAFO Regulatory Area posed by fishing vessels without nationality, foreign fishing vessels flying "flags of convenience" and, on particular facts, foreign fishing vessels flying flags of Spain, Portugal--No basis on which to conclude prescription of vessels flying flags of Spain, Portugal as "class" of vessels for purposes of s. 5.2 contravening Charter, s. 15--Charter protecting equality of individuals against discrimination-- Distinctions here at issue not directed at Spanish persons based upon stereotyping, prejudice--As to vires of Regulations, Statutory Instruments Act, s. 11(2) providing no regulation invalid by reason only that not published in Canada Gazette--Moreover statutory instrument enacting March 3, 1995 amendments to Regulations specifically provided would apply before published in Canada Gazette--Authority to so provide not challenged--Finally, prior notice given to European Union of intention of Government of Canada to so act--Estai and other vessels withdrew from NAFO Regulatory Area following receipt of such notice, but returned --Inference vessel owners aware of Government of Canada's intention--(2) Plaintiffs submitted defendant's use of "gunboats" against Estai and in harassing, terrorizing master, crew on high seas unlawful, tortious, boarding Estaitrespass --Persons boarding Estai were protection officers--First attempt to board Estai actively resisted--Threw boarding ladder into sea, cut warps and began to run towards international waters--Court satisfied pursuing vessels used appropriate flag signals to give notice of intention to fire warning shots and to board, but Estai continued to run-- Estai continuing to resist providing opportunity to board until warning shots fired--Reasonably open to those on board Canadian vessels to arm members of boarding teams--Claim pursuing ships reckless, used excessive force not justified-- (3) Estai suffered hull damage during voyage--But plaintiffs not meeting burden of establishing, on balance of probabilities, damage to hull of Estai documented following return to Spain attributable, in whole or in part, to voyage from point of arrest to St. John's--Adverse inference drawn from failure of ship's captain to testify--(4) Plaintiffs claiming ship's agency fees, hotel expenses in St. John's for crew when required to vacate Estai, bonding expenses in order to obtain release of Estai, legal fees--Circumstances of arrest of Estai, master, charges laid, stayed sufficient to make "remarkable" case for accused (plaintiffs)--While no evidence conduct of Crown in arrests, preliminary pursuit of charges involved any oppressive, improper conduct, Court satisfied plaintiffs entitled to recover out-of-pocket expenses, ship's agency fees to time of departure of Estai from St. John's--Plaintiffs claiming lost net revenue of $4000 per day for 81 days--By analogy to out-of-pocket legal expenses, ship's agency fees, plaintiffs should receive some award of damages in respect of lost fishing time--Limited to 11 1/2 days representing days Estai under arrest, travelling time to return from St. John's to fishing grounds--Based on same rationale, plaintiffs awarded compensation for extra bunkers, lubrication for 8 1/2 days representing transit to St. John's from point of arrest, time docked in St. John's and time required to return to fishing grounds--No damages awarded for shortfall in frozen fish between time of arrival in St. John's and time of release from arrest as evidence not establishing quantity of frozen fish on board when Estai entered St. John's harbour--As evidence not establishing corporate plaintiff not reasonably compensated for cost of patriation of seized frozen fish, no damages awarded in this regard--No basis for general, punitive or aggravated damages --Action dismissed in all other respects--Each side to bear own costs--Coastal Fisheries Protection Act, R.S.C., 1985, c. C-33, ss. 5.1 (as enacted by S.C. 1994, c. 14, s. 2), 5.2 (as enacted idem)--Coastal Fisheries Protection Regulations, CRC, Vol. IV, c. 413--Statutory Instruments Act, R.S.C., 1985, c. S-22, s. 11(2)--Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 15.