A-935-84
Attorney General of Canada, Governor in Council,
Director General of the Department of Fisheries
and Oceans for the Pacific Region, "Fisheries
Officers", Wayne Shinners, The Queen in Right
of Canada as represented by the Department of
Fisheries and Oceans (Appellants)(Defendants)
v.
Fishing Vessel Owners' Association of British
Columbia, Pacific Coast Salmon Seiners Associa
tion, Prince Rupert Fishing Vessel Owners Asso
ciation, Certain Members of the Fishing Vessel
Owners' Association of British Columbia as set
out in Schedule "A" hereto and Certain Other
Purse Seine Fishing Vessel Owners as set out in
Schedule "B" hereto (Respondents)(Plaintiffs)
Court of Appeal, Pratte, Heald and Stone JJ.—
Vancouver, April 10, 11 and 12; Ottawa, April 29,
1985.
Judicial review — Equitable remedies — Injunctions —
Appeal from Trial Judge's order restraining departmental
officials from making decisions under Fisheries Act —
Regional Director determining open periods for salmon fishing
in Pacific Region longer for vessels using gill net gear than for
those using purse seine gear — Appeal allowed — American
Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396 (H.L.) applied
— Trial Judge erred in trying to resolve conflict of evidence as
to whether decision based on conservation considerations —
Trial Judge erred in assuming injunction not causing damage
to appellants — Public interest suffering irreparable harm
when public authority prevented from exercising statutory
powers — Judge erred in failing to consider application seek
ing to disturb status quo — Different fishing times allotted in
previous years.
Fisheries — Regional Director enjoined from prescribing
longer open period for commercial salmon fishing for vessels
using gill net gear than those using purse seine gear —
Interlocutory injunction set aside — Trial Judge erred in
trying to resolve conflict of evidence as to whether decision
based on conservation considerations, assuming no damage to
appellants and not considering application seeking to disturb
status quo — Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.)
[R.S.C. 1970, Appendix II, No. 5] (as am. by Canada Act
1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act,
1982, Item 1), s. 91(12) — Fisheries Act, R.S.C. 1970, c. F-14,
s. 34(a),(b),(m) — Pacific Commercial Salmon Fishery Regu
lations, C.R.C., c. 823, s. 5(1) (as am. by SOR/82-529, s. 3).
CASE JUDICIALLY CONSIDERED
APPLIED:
American Cyanamid Co. v. Ethicon Ltd., [1975] A.C.
396 (I-I.L.).
COUNSEL:
G. O. Eggertson for appellants (defendants).
N. E. Daugulis for respondents (plaintiffs).
Gordon L. Bisaro for intervenor, Pacific
Gillnetters.
SOLICITORS:
Deputy Attorney General of Canada for
appellants (defendants).
Bull, Housser & Tupper, Vancouver, for
respondents (plaintiffs).
Gordon L. Bisaro, Vancouver, for intervenor,
Pacific Gillnetters.
DuMoulin, Lowes & Boskovich, Vancouver,
for Gulf Trollers Association.
The following are the reasons for judgment
rendered in English by
PRATTE J.: This is an appeal from an order of
the Trial Division (Collier J.) [dated July 13,
1984, T-1356-84, not yet reported] restraining,
until final disposition of the action, designated
officials from the Department of Fisheries and
Oceans from making certain decisions that they
intended to make under the Fisheries Act.'
Under subsection 91(12) of the Constitution
Act, 1867, [30 & 31 Vict., c. 3 (U.K.) [R.S.C.
1970, Appendix II, No. 5] (as am. by Canada Act
1982, 1982, c. 11 (U.K.), Schedule to the Consti
tution Act, 1982, Item 1)] the Federal Parliament
was given the exclusive power to legislate in
respect of "Sea Coast and Inland Fisheries". The
Fisheries Act was enacted pursuant to that author
ity. Under section 34 of that Act, the Governor in
Council may make regulations:
1 R.S.C. 1970, c. F-14.
34....
(a) for the proper management and control of the seacoast
and inland fisheries;
(b) respecting the conservation and protection of fish;
(m) authorizing a person engaged or employed in the
administration or enforcement of this Act to vary any close
time or fishing quota that has been fixed by the regulations.
Acting under the authority of those provisions,
the Governor in Council made the Pacific Com
mercial Salmon Fishery Regulations. 2 These
Regulations prescribe a complete closure, from
January 1 to December 31 of each year, for com
mercial fishing of all species of salmon in all areas
of the Pacific Region; however, they also provide,
in subsection 5(1) [as am. by SOR/82-529, s. 3],
that:
5. (1) The Regional Director or a fishery officer may vary
any fishing quota or close time set out in these Regulations in
respect of any river, Area or Subarea.
As a consequence, the salmon fishing season, in
the Pacific Region, is determined from time to
time by the Regional Director. At the beginning of
the year, the Department publishes a "Guide"
indicating, inter alia, when and where the Region
al Director intends to permit salmon fishing during
the year. In the 1984 Commercial Fishing Guide,
published in March 1984, it was stated that, in
that year, in areas 12, 13, 16 and 23, the "open
periods" for fishing vessels using gill net gear
would be longer than for the vessels using seine
gear; it was further stated that the periods for the
gill netters would open before those of the seiners. 3
The three respondents are associations of owners
of fishing vessels equipped with purse seine nets.
They sued the appellants for a declaration that the
proposed fishing plan, in so far as it discriminated
between the gill netters and the seiners, was both
beyond the legislative power of Parliament and
beyond the powers conferred upon the Department
of Fisheries and Oceans and its officials by the
2 C.R.C., c. 823.
3 According to the evidence, "purse seining is a method of
fishing by encircling the fish in a net, gill netting is a method of
fishing by laying a net which catches fish when they become
entangled in the net by their gills."
Fisheries Act. They also applied for an interlocuto
ry injunction so as to prevent the implementation
of the proposed fishing plan until final disposition
of the action. Collier J. granted that application.
Hence, this appeal.
In his reasons for judgment, the Judge first
expressed the view that the prime purpose of the
Fisheries Act and of Parliament's legislative power
in respect of fisheries was the protection and con
servation of fish; he also said that the scheme
under which the Regional Director was given the
power to vary the close times and fishing areas set
out in the Regulations had the same purpose. He
then assessed the contradictory affidavit evidence
adduced by both parties and, rejecting the evi
dence contained in an affidavit filed by the appel
lants, held that the proposed allocation of fishing
times in the areas in question was not based on
conservation or protection considerations. His con
clusion on this point reads as follows [at pages
7-8]:
I am satisfied the proposal for areas 12, 13, 16 and 23, trying
to divert a greater portion of the allowable catch to gill netters,
was not based on any ground of protection or conservation. Nor
was it related to management or control necessarily incidental
to protection or conservation. I conclude, from the evidence, the
sole ground was socio-economic: to ensure that a greater por
tion of the salmon fishing industry business and its source of
economic livelihood went to fishermen who used gill net gear.
Having said this, the Judge held [at page 8] that
the plaintiffs were entitled to an interlocutory
injunction "restraining the regional director or any
fishing officer from varying any fishing quota or
close time in the manner as set out in the 1984
Commercial Fishing Guide." Referring to the
principles formulated by Lord Diplock in Ameri-
can Cyanamid Co. v. Ethicon Ltd.,° he based that
conclusion on the following considerations:
4 [1975] A.C. 396 (H.L.).
1. the plaintiffs' claim, as conceded by counsel
for the defendants, raised a serious question;
2. in the absence of an injunction, the plaintiffs
would suffer an irreparable damage; on the
other hand, the defendants would suffer no
damage if an injunction were granted;
3. the plaintiffs had a strong case.
In my opinion, this decision should be set aside
for the following reasons:
(a) the Judge should not have tried, as he did, to
resolve the conflict of evidence on the question
whether the proposed allocation of fishing time
was based on conservation considerations. As
was stated by Lord Diplock in American
Cyanamid: 5
It is no part of the court's function at this stage of the
litigation to try to resolve conflicts of evidence on affidavit as to
facts on which the claims of either party may ultimately depend
nor to decide difficult questions of law which call for detailed
argument and mature considerations.
The court is not justified in embarking upon anything resem
bling a trial of the action upon conflicting affidavits in order to
evaluate the strength of either party's case.
(b) the Judge assumed that the grant of the
injunction would not cause any damage to the
appellants. This was wrong. When a public au
thority is prevented from exercising its statutory
powers, it can be said, in a case like the present
one, that the public interest, of which that au
thority is the guardian, suffers irreparable harm;
(c) the Judge did not take into consideration
that the respondents' application sought, in a
sense, to disturb rather than preserve the status
quo. Indeed, the record discloses that in the
years preceding 1984, the Regional Director
had, in exercising his powers under subsection
5(1) of the Regulations, allotted different fish
ing times to the gill netters and the seiners.
For these reasons, I would allow the appeal, set
aside the order of the Trial Division and dismiss
the respondents' application for an interlocutory
5 [1975] A.C. 396 (H.L.), at pp. 407 and 409.
injunction. I would grant the appellants their costs
in both Divisions but would make no order as to
the intervenors' costs.
HEALD J.: I concur.
STONE J.: I agree.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.