T-1386-83
James Joliffe, Colin Montgomery, Arthur Hansen,
Wallace Gray, Christopher France, William Grif-
fis and Byron Wright (Plaintiffs)
v.
The Queen in right of Canada (Defendant)
Trial Division, Strayer J.—Vancouver, March 27
and 29; Ottawa, April 18, 1985.
Fisheries — Transfer of licence permitting purse seining to
new vessel approved by letter in November 1979 — S. 15(2) of
Regulations amended in January 1980 restricting purse seine
fishing for salmon — No limitations re: fishing by purse seine
in 1980 and 1981 licences issued to new vessel, but 1982
licence prohibiting salmon seining — S. 15(2) of Regulations
fishing restriction applying equally to anyone engaged in com
mercial salmon fishing — No vesting of licence beyond rights
for year issued — Interest of licence-holder subject to validly
enacted laws — Pacific Fishery Registration and Licensing
Regulations, C.R.C., c. 824, ss. 4(1), 9(1),(2), 10(1)(a),(2), 15(2)
(as am. by SOR/80-85, s. 4), 34(1),(2), 36(2), 37 — Fisheries
Act, R.S.C. 1970, c. F-14, ss. 7, 9, 34(d),(e),(g) (as am. by
R.S.C. 1970 (1st Supp.), c. 17, s. 4) — Statutory Instruments
Act, S.C. 1970-71-72, c. 38, s. 11.
Construction of statutes — Plaintiffs holding Salmon "A"
licence containing no restrictions re: fishing by purse seine —
Letter approving transfer of licences to new vessel dated
November 1979 — January 1980 amendment to s. 15(2) of
Regulations restricting purse seine fishing for salmon —
Necessary to determine what "right" vested in each situation
to apply s. 35(c) of Interpretation Act — No vesting of rights
in licence beyond year issued — S. 35(c) only protecting right
to licence until end of licence year — Interpretation Act,
R.S.C. 1970, c. I-23, s. 35(c) — Pacific Fishery Registration
and Licensing Regulations, C.R.C., c. 824, s. 15(2) (as am. by
SOR/80-85, s. 4).
Estoppel — Departmental officials aware of plaintiffs'
intentions to build vessel primarily for purse seine fishing and
of impending Regulation prohibiting purse seining — Depart
ment approving transfer of licences — Estoppel not binding
Crown so as to require ignoring express provisions of law.
The plaintiffs seek a declaration as to their entitlement to a
licence to fish for salmon by means of a purse seine. The
plaintiffs had three fishing licences, one of which permitted
purse seining, which they sought to transfer to a new vessel
under construction and primarily designed for purse seining for
salmon. The Department of Fisheries approved by letter the
transfer of the licences in November 1979. Although depart
mental officials were aware of proposed changes to the Pacific
Fishery Registration and Licensing Regulations, which could
preclude the plaintiffs from purse seining for salmon, the
plaintiffs were not so informed. In January 1980, subsection
15(2) of the Regulations was amended restricting purse seine
fishing for salmon. The three licences were issued in respect of
the new vessel in 1980 and 1981. However, in 1982 the licence
expressly prohibited salmon seining. The issues are: (1) whether
Regulation 15(2) is a licensing restriction which cannot be
applied so as to modify existing licences, or a fishing restriction
which potentially applies to anyone fishing for salmon regard
less of when their licence was issued; (2) whether paragraph
35(c) of the Interpretation Act prevents the application of
Regulation 15(2) to modify existing licences; (3) whether the
Crown is estopped from denying the plaintiffs' right to fish for
salmon by purse seine.
Held, the action should be dismissed.
Subsection 15(2) is a fishing restriction which, by its terms,
applies equally to anyone engaged in commercial salmon fish
ing. By sections 34 and 37 of the Regulations, licences are valid
for one year only and expire each year as of March 31. By
section 7 the Minister has an "absolute discretion" in the
issuance of new licences. Therefore there is no legal underpin
ning for the "vesting" of a licence beyond the rights which it
gives for the year in which it was issued. The interest vested in
a licence-holder is subject to modification by validly enacted
laws. This is similar to the application of municipal building
by-laws in a way which impairs rights previously enjoyed by
land owners: Canadian Petrofina Ltd. v. Martin and Ville de
St. Lambert, [1959] S.C.R. 453.
In applying a rule of interpretation, such as paragraph 35(c)
against derogation from vested rights, it must be determined
what "right" has vested. It is necessary to look at each situation
to determine whether the grant of approval has vested an
interest which, by the rules of statutory interpretation, is to be
presumed not to have been taken away by the adoption of new
criteria for the granting of such approvals. The Salmon "A"
licence was always subject to validly enacted laws, whether
adopted before or after its issue, in respect of the way that
fishing could be conducted. The fact that Regulation 10
required classification in a certain manner of vessels with a
certain recorded catch does not mean that it has guaranteed
rights for the indefinite future. The future activities of a certain
category of vessel must depend on the law as it exists from time
to time. Finally, subsection 15(2) is not framed as a licence
restriction. In any event, paragraph 35(c) could only protect the
plaintiffs' right to fish using a purse seine from Regulation
15(2) until the end of the licence year.
The officers of the Crown cannot be bound by estoppel so as
to require them to ignore the express provisions of the law.
CASES JUDICIALLY CONSIDERED
APPLIED:
Canadian Petrofina Ltd. v. Martin and Ville de St.
Lambert, [1959] S.C.R. 453.
DISTINGUISHED:
Laurie's Caterers Ltd. v. North Vancouver (1984), 53
B.C.L.R. 381 (S.C.).
CONSIDERED:
Canada Employment and Immigration Commission v.
Dallialian, [1980] 2 S.C.R. 582; 33 N.R. 118; McDoom
v. Minister of Manpower and Immigration, [1978] 1 F.C.
323; (1977), 77 D.L.R. (3d) 559 (T.D.); Central Mort
gage and Housing Corp. v. Co-operative College Resi
dences, Inc. et al. (1975), 71 D.L.R. (3d) 183 (Ont.
C.A.).
REFERRED TO:
Lapointe v. Min. of Fisheries & Oceans (1984), 9 Admin.
L.R. 1 (F.C.T.D.); St. Ann's Fishing Club v. The King,
[1950] S.C.R. 211.
COUNSEL:
J. Raymond Pollard for plaintiffs.
Alan D. Louie for defendant.
SOLICITORS:
Buell Ellis, Vancouver, for plaintiffs.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
rendered in English by
STRAYER J.:
Facts
The issue before me at this time is the plaintiffs'
claim to certain declarations that in respect of
their vessel the Proud Venture they are, or are
entitled to be, licensed to fish for salmon by means
of a purse seine.
The plaintiffs in 1979 owned a fishing trawler
named the Chasam for which they had the follow
ing fishing licences: a Salmon "A" licence, a
Groundfish Trawl licence and a West Coast
Shrimp licence. In the autumn of 1979 they com
missioned the construction of a new vessel which
was designed to be primarily for salmon fishing by
the use of a "purse seine". As the times permitted
for salmon fishing by purse seine are very limited,
the vessel was designed to be usable to some extent
for other forms of fishing although, admittedly, it
would not be as efficient in these other uses. The
Salmon "A" licence which they had had in respect
of the Chasam permitted purse seining.
On November 14, 1979 one of the plaintiffs
wrote to the Department of Fisheries on their
behalf requesting that the above licences for the
Chasam be transferred to the new vessel under
construction. The final paragraph of this letter
read as follows:
We would appreciate your prompt approval since we have
advanced $124,000.00 into the construction of the new boat
and our bank will not advance any more funds until the licence
is approved. You will note that time is of the essence in this
matter since our new vessel is well under construction.
By a letter from the Department dated November
29, 1979, the letter on behalf of the plaintiffs was
acknowledged and they were advised that their
application had been considered by the Vessel
Licence Appeal Committee. This letter advised
that "The Committee therefore approves your
request". They were told however that a commer
cial fishing vessel number would not be assigned to
the new vessel until the old registration plates and
annual tabs had been returned for cancellation.
They were further advised that new plates and
tabs would not be released until the Department
received certain further material including a
"completed application and $10.00 initial registra
tion fee". It is apparent from the evidence that one
or more of the officials in the Department of
Fisheries who handled this application was aware
at the time that a change in the Pacific Fishery
Registration and Licensing Regulations, C.R.C.,
c. 824, was contemplated, a change which could
preclude the plaintiffs from purse seining for
salmon. It was also clear that it must have been
obvious to officials of the Department that the
proposed vessel, a plan of which had been submit-
ted, was primarily designed for this kind of fishing.
Nevertheless, no indication of this was given to the
plaintiffs before they proceeded with the construc
tion on the strength of the letter of November 29
indicating approval by the relevant committee of
the transfer of licences. A new subsection 15(2)
[as am. by SOR/80-85, s. 4] of the Regulations
was adopted by Order in Council on January 18,
1980. This amendment was registered on January
21, 1980 and published in the Canada Gazette on
February 13, 1980. It provided as follows:
15....
(2) No person shall use a vessel in salmon fishing by means
of a purse seine unless that vessel, or the vessel or vessels from
which the salmon licence privilege was transferred, made land
ings of purse seine caught salmon during 1975 and 1976 and
before July 28th, 1977.
It was stipulated by the parties in an agreed
statement of facts submitted at trial that the
Chasam had not made landings of purse seine
caught salmon during the periods specified in the
amendment, and therefore the successor vessel of
the plaintiffs would not be entitled to fish by purse
seine pursuant to this "grandfather clause".
The plaintiffs apparently were unaware of the
adoption of this Regulation, even though it was
published in the Canada Gazette. By a letter from
the Department of Fisheries of April 3, 1980 they
were advised that their new vessel would be li
censed for, inter alia "salmon by other than
seine". On April 9, 1980 an application was sub
mitted on behalf of the plaintiffs for the issue of
licences to their new vessel, now named the Proud
Venture. The application was for the same three
licences as the plaintiffs had held with respect to
the Chasam. It appears that this application was
submitted as required by the Regulations which
contemplate an annual application for licences,
and as contemplated by the condition set forth in
the "Approval" of November 29, 1979 of the
transfer of the licences from the Chasam to the
new vessel. One of the conditions stated therein
was the receipt of a "completed application and
$10.00 initial registration fee" as indicated above.
These licences were subsequently issued in respect
of the Proud Venture which was completed and
launched about mid-April, 1980. The Salmon "A"
licence contained no express limitations with
respect to fishing by purse seine, nor did the
licence issued in 1981. The licence issued for 1982,
however, included an express restriction as follows:
"no salmon seining permitted". Evidence was not
adduced to indicate precisely what effect this had
on the fishing activities carried out by the Proud
Venture, but counsel for the plaintiffs indicated
that in 1984 the vessel was effectively prevented
from using its Salmon "A" licence transferred
from the Chasam for the purposes of purse sein-
ing, and that it became necessary to acquire
another licence. These events, if they have any
relevance, relate to a possible claim for damages
which will be referred to below.
Issues
Essentially, the plaintiffs contend that the new
subsection 15(2) of the Regulations adopted in
January, 1980 was in the nature of licensing re
striction. They assert that fishing licence is in the
nature of intangible property which has a commer
cial value and which cannot be altered or revoked
except for reasons specified in the Fisheries Act,
R.S.C. 1970, c. F-14, or in the Pacific Fishery
Registration and Licensing Regulations. They say
those conditions and procedures were not relevant
to the present case. It is further contended that the
new subsection 15(2) of the Regulations as adopt
ed in January 1980, cannot be applied so as to
modify existing licences, because of the provisions
of paragraph 35(c) of the Interpretation Act,
R.S.C. 1970, c. I-23 which provides as follows:
35. Where an enactment is repealed in whole or in part, the
repeal does not
(c) affect any right, privilege, obligation or liability acquired,
accrued, accruing or incurred under the enactment so
repealed;
The contention is that this new subsection purport
ed to repeal earlier licensing provisions, and there-
fore could not be applied to take away rights
already vested by the prior issuance of a licence.
The plaintiffs contend that by the letter of Novem-
ber 29, 1979, approving their application for trans
fer of their licences from the Chasam to the Proud
Venture, the Salmon "A" licence had been effec
tively issued in respect of the Proud Venture thus
vesting in them a right to fish for salmon limited
only by conditions applicable at that time to such
fishing.
In effect, the defendant contends that subsection
15(2) of the Regulations is a fishing restriction, a
legislative measure which potentially applies to
anyone fishing for salmon regardless of when their
licence was issued. The defendant further contends
that in any event no rights vested in the plaintiffs
prior to the adoption of the Regulation because the
letter of November 29, 1979 did not constitute the
issuance of a licence. The licence could only be
issued after an application had been received for
same together with the appropriate fee, and that
application was not submitted until April 9, 1980,
almost three months after the Regulations were
amended.
I should note also that, whereas originally when
this action was commenced in June 1983, the
plaintiffs sought only declarations as to their enti
tlement to a Salmon "A" licence unrestricted as to
gear, they amended their statement of claim in
February 1985, after a date had been fixed by the
Court for the trial, seeking damages as well. I
understand that the defendant consented to this
amendment but only on the condition that it would
be allowed to file an amended statement of defence
on the question of damages before the issue of
damages is tried. As this was not done, nor was
there discovery on the question of damages before
trial, it was the wish of both counsel that the Court
at this time dispose of the questions involving
entitlement to and scope of the licence, leaving
open the possibility that there may have to be
further proceedings with respect to the question of
damages depending in part on such determination
as I may make with respect to the licence. I shall
revert to this matter at the end of the reasons for
judgment.
Conclusions
I have concluded that subsection 15(2) of the
Pacific Fishery Registration and Licencing Regu
lations, as adopted by the Governor in Council on
January 18, 1980, is a fishing restriction which by
its terms applies equally to anyone engaged in
commercial fishing of a kind within the ambit of
those Regulations, including the plaintiffs. It
became effective to this end as of the date of its
registration on January 21, 1980 and, by virtue of
the Statutory Instruments Act, S.C. 1970-71-72,
c. 38, s. 11, could have formed the basis for
prosecution as of the date of its publication in the
Canada Gazette on February 13, 1980.
It is necessary to note some of the salient provi
sions in the Fisheries Act and in the Pacific Fish
ery Registration and Licensing Regulations. In
essence the Act contains the following provisions
[as am. by R.S.C. 1970 (1st Supp.), c. 17, s. 4]:
7. The Minister may, in his absolute discretion wherever the
exclusive right of fishing does not already exist by law, issue or
authorize to be issued, leases and licences for fisheries or
fishing, wherever situated or carried on; but except as herein-
after provided, leases or licences for any term exceeding nine
years shall be issued only under authority of the Governor
General in Council.
9. The Minister may cancel any lease or licence issued under
the authority of this Act, if he has ascertained that the opera
tion under such licence were not conducted in conformity with
its provisions.
34. The Governor in Council may make regulations for
carrying out the purposes and provisions of this Act and in
particular, but without restricting the generality of the forego
ing, may make regulations
(d) respecting the operation of fishing vessels;
(e) respecting the use of fishing gear and equipment;
(g) respecting the terms and conditions under which a lease
or licence may be issued;
The Regulations contain the following provisions:
4. (I) No vessel shall be used in commercial fishing unless
(a) a commercial fishing licence has been issued for the
vessel;
(b) registration plates are, subject to subsection (2), legibly
displayed on both sides of the bow, pilot house or deck cabin
of the vessel;
(0 current year commercial fishing tabs have been issued for
the vessel and are attached to the registration plates; and
(d) the vessel meets the requirements of section 13.
9. (1) Every application for registration of a fishing vessel
under these Regulations shall be made to the Regional Director
on a form approved by the Minister.
(2) Where an application referred to in subsection (1) is
made in respect of a vessel and the vessel has been classified in
accordance with section 10, the vessel shall be registered with
the Department as a commercial fishing vessel and metal
registration plates bearing a serial number shall be issued in
respect of the vessel.
10. (1) Every vessel registered as a commercial fishing vessel
shall be classified as follows:
(a) a Category A vessel, being
(i) a vessel with a recorded commercial catch and sale in
1967 or that portion of 1968 prior to September 6th, of
10,000 pounds or more of pink or chum salmon or the
equivalent thereof,
(ii) a vessel that replaces a Category A vessel pursuant to
section 18, or
(iii) a vessel that, but for circumstances beyond the control
of the owner, could have met the requirement of subpara-
graph (i) and for which the issue of a commercial salmon
fishing licence is authorized by the Minister by reason of
such circumstances;
(2) Every vessel classified in accordance with subsection (1)
shall hereinafter be referred to as a Category A vessel, a
Category B vessel, a Category C vessel or a Category D vessel,
whichever is appropriate, and shall be licensed accordingly.
(Paragraph 10(1)(a) was revised in 1981 [SOR/
81-161, s. 1], but read as above during the period
in question.)
34. (1) Subject to subsection (2), no licence, registration
plate or licence tab issued pursuant to these Regulations is valid
after March 31st next following the date of issue.
(2) No roe herring fishing licence tab issued pursuant to
these Regulations is valid after December 31st next following
the date of issue.
36....
(2) Where a vessel for which registration plates or licence
tabs have been issued pursuant to these Regulations is sold or
otherwise disposed of, the plates and tabs shall continue to be
valid in respect of that vessel for the period for which they
would have been valid if the vessel had not been sold.
37. Every commercial fishing licence issued in respect of a
vessel is valid for one year only and may be renewed only
within one year from the time it ceases to be valid. [Emphasis
added.]
While there is a good deal of force in the
contention of the plaintiffs that licences, because
they have a recognized commercial value and are
frequenly bought and sold, should be regarded as
vesting in their holders a right which is indefea-
sible except (as contemplated by section 9 of the
Act) where there has been a breach of the condi
tions of the licence, I am unable to find support for
that conception of licences in the Act or Regula
tions. First, it must be underlined that no matter
what the popular belief on the subject, by sections
34 and 37 of the Regulations no licence is valid for
more than one year and expires as of March 31 in
any given year. It is true that by section 9 of the
Act the Minister's power to cancel licences is
restricted to situations where there has been a
breach of a condition of the licence, and no doubt
in exercising that power of cancellation the Minis
ter or his representatives would have to act fairly:
see Lapointe v. Min. of Fisheries & Oceans
(1984), 9 Admin. L.R. 1 (F.C.T.D.). But licences
terminate each year and by section 7 the Minister
has an "absolute discretion" in the issuance of new
licences. I am therefore unable to find a legal
underpinning for the "vesting" of a licence beyond
the rights which it gives for the year in which it
was issued.
Whether any interest vests in the licence-holder
for a year or indefinitely, however, it is an interest
which is subject to modification by validly enacted
laws. A similar issue has frequently arisen with
respect to the application of municipal building
by-laws in a way which impairs rights previously
enjoyed by land owners. The Supreme Court of
Canada dealt with this question in Canadian
Petrofina Ltd. v. Martin and Ville de St. Lambert,
[1959] S.C.R. 453, at pages 458-459 where it said:
The whole object and purpose of a zoning statutory power is to
empower the municipal authority to put restrictions, in the
general public interest, upon the right which a land owner,
unless and until the power is implemented, would otherwise
have to erect upon his land such buildings as he thinks proper.
Hence the status of land owner cannot per se affect the
operation of a by-law implementing the statutory power with
out defeating the statutory power itself. Prior to the passing of
such a by-law the proprietary rights of a land owner are then
insecure in the sense that they are exposed to any restrictions
which the city, acting within its statutory power, may impose.
Similarly, in the present case, the holder of any
fishing licence remains subject to the possible exer
cise by Parliament of its legislative authority with
respect to fisheries under the Constitution, or by
the Governor in Council in the exercise of its
delegated legislative authority as prescribed by the
Act. The plaintiffs did not suggest that the adop
tion of subsection 15(2) of the Regulations was in
any way beyond the authority delegated to the
Governor in Council nor that Parliament lacked
jurisdiction to delegate that authority.
In applying a rule of interpretation such as
paragraph 35(c) of the Interpretation Act against
derogation from vested rights, one must look care
fully to see what "right" if any has vested. It is
true that in the Canadian Petrofina case itself, the
Court at page 459 says in obiter dicta that once a
building permit has been issued then the right to
build in accordance herewith has accrued. In
Canada Employment and Immigration Commis
sion v. Dallialian, [1980] 2 S.C.R. 582; 33 N.R.
118, the Supreme Court of Canada held that once
a man had established entitlement to a 51-week
benefit period under the Unemployment Insurance
Act, 1971 [S.C. 1970-71-72, c. 48], he was entitled
to those benefits regardless of subsequent changes
to the law respecting entitlements. In other words,
his rights were ascertained in accordance with the
law as it stood at the time of his application and
the approval thereof. In McDoom v. Minister of
Manpower and Immigration, [1978] 1 F.C. 323;
(1977), 77 D.L.R. (3d) 559 (T.D.), my colleague
Walsh J. held that the nomination by a landed
immigrant of her sons for admission to Canada
was effective when submitted and accepted in
Toronto, even though it had to be sent to New
York for "evaluation". Therefore additional
requirements for effective nominations, subse
quently imposed by regulation, could not properly
be applied to this situation. Similarly, in Central
Mortgage and Housing Corp. v. Co-operative
College Residences, Inc. et al. (1975), 71 D.L.R.
(3d) 183 (Ont. C.A.), it was held that notification
by C.M.H.C. of approval of a loan effectively
bound the Corporation, notwithstanding a subse
quent amendment to its Act which required pro
vincial government approval for a loan of the type
in question. These cases illustrate that it is neces
sary to look in each situation to determine whether
the grant of approval has vested an interest which,
by the rules of statutory interpretation, is to be
presumed not to have been taken away by the
adoption of new criteria for the granting of such
approvals. But rules of statutory interpretation
such as paragraph 35(c) of the Interpretation Act
do not mean that the holders of "accrued" inter
ests are thereby rendered immune from all future
laws which might affect the enjoyment of those
interests.
I therefore find that the Salmon "A" licence
which the plaintiffs had in respect of the Chasam,
and which they transferred to the Proud Venture,
was always subject to validly enacted laws, wheth
er adopted before or after its issue, in respect of
the way that fishing could be conducted. I cannot
accept the plaintiffs' interpretation of section 10 of
the Regulations, that because such a vessel with a
certain recorded commercial catch must, and its
successors must, be classified for registration pur
poses as a Category A vessel, that means it has
guaranteed rights for the indefinite future to fish
with a purse seine. The activities that a Category
A vessel can carry on in future must depend on the
law as to commercial fishing as it exists from time
to time. Nor do I accept that the new subsection
15(2) of the Regulations was a licensing restriction
rather than a fishing restriction. It is not framed as
a licence restriction. The fact that in letters from
the Department to the plaintiffs of April 3, 1980,
and April 14, 1980, and in the licence issued to
them for 1982, specific reference is made to the
purse seining prohibition, is explicable on other
grounds. Since the application of the new subsec
tion 15(2) to particular vessels depended on
whether they had landings of purse seine caught
salmon in a particular period, it was appropriate
that the vessels be identified to which the prohibi
tion was thought by the Department to apply.
Even if I were to accept that the plaintiffs had
an accrued right in 1979 to a Salmon "A" licence
including the right to fish by the use of a purse
seine, that right would, by virtue of paragraph
35(c) of the Interpretation Act, only be regarded
as immune from the new subsection 15(2) of the
Regulations until the end of that licence year. As
noted above, these licences are in law good for one
year only and must be the subject of a new
application each year. In granting a renewal of a
licence any time after January 21, 1980, the Min
ister or his representatives would have no authority
to grant, expressly or by implication, a licence
which was contrary to subsection 15(2) as enacted
by the Governor in Council. Even if it were accept
ed that the plaintiffs continued to have the right to
fish by purse seine until the expiry of their 1979-
1980 licence on March 31, 1980, this as far as I
can see is of no practical consequence since no
fishing was done by either of their vessels from the
time the application for transfer was made on
November 14, 1979, until at least some time in
April when the new vessel was launched.
It was contended by counsel for the plaintiffs
that the Crown was in any event estopped from
denying the right of the plaintiffs to fish for
salmon by purse seine, because in spite of its
knowledge of the plaintiffs' intentions to build a
vessel for this purpose and its knowledge of the
impending Regulation prohibiting purse seining,
the Department by its approval on November 29,
1979 of the transfer of the licences had induced
the plaintiffs to proceed with construction of the
vessel designed for purposes which would soon be
illegal. The plaintiffs cited decisions to the effect
that the Crown may be bound by estoppel. With
out examining carefully the question of detriment,
since I need not do so here and it may be relevant
to issues not yet tried, I am satisfied that in these
circumstances the officers of the Crown cannot be
bound by estoppel so as to require them to ignore
the express provisions of the law: see, e.g., St.
Ann's Fishing Club v. The King, [1950] S.C.R.
211. This is not to say that I find the conduct of
the Department of Fisheries excusable or expli
cable in these circumstances. It is obvious that
certain officers of the Department must have been
aware, or should have realized, that the Depart
ment would be in effect encouraging the plaintiffs
to embark on a costly investment largely devoted
to an activity which might soon be prohibited by
the Governor in Council on recommendation of the
Department. No facts emerged at the trial which
explained this course of conduct.
Since the trial, counsel for the plaintiffs has also
brought to my attention the decision of the
Supreme Court of British Columbia in Laurie's
Caterers Ltd. v. North Vancouver (1984), 53
B.C.L.R. 381 (S.C.). That decision deals with the
liability of a municipal government for damages
caused by a failure to warn a successful applicant
for a building permit that a business licence might
not be issued to allow the operation of the kind of
business it planned to operate. Apart from the
question of whether the same principles apply to
the Crown and its officers as apply to a municipal
body, the case does not deal with the validity of
the limitation placed on the business permit pre
venting the plaintiff from carrying on its proposed
business. The decision relates only to the question
of liability for damages arising out of that limita
tion. It may, as noted before, be relevant to a later
aspect of these proceedings but not to the issue
now before me.
The action, in so far as it seeks declarations in
favour of the plaintiffs with respect to the licence,
is therefore dismissed. The plaintiffs must bear the
costs of the action to date.
I was advised by counsel for the plaintiffs that
even if I should reach such a conclusion, this
would not necessarily foreclose their claim for
damages. I take it that the plaintiffs may wish to
assert such a claim on the basis of alleged mis
representation by the defendant giving rise to pos
sible liability in tort. I am not seized of that issue,
and for it to be tried it will be necessary for the
defendant to have an opportunity to amend the
statement of defense to meet this claim and fur
ther discoveries may be necessary. It is not of
course appropriate for me to comment on the
possible success of such a claim, at this time. I will
simply direct that if the plaintiffs decide to pursue
the claim in damages, that will have to be the
subject of consideration in a further trial of this
same action to be held as and when directed by the
Associate Chief Justice.
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.