Digests

Radil Bros. Fishing Co. v. Canada (Department of Fisheries, Pacific Region)

T-382-99

McKeown J.

21/11/00

24 pp.

Statement of claim--Appeal from prothonotary's dismissal of motion to strike out statement of claim ([1999] 4 F.C. D-36)--Plaintiff (Radil) owner of fishing vessel Seacrest, together with T.8 licence under which engaged in groundfish fishery until 1993--In January 1993 defendant B.C. Packers applied on behalf of Radil for T.8 licence--In August 1993 B.C. Packers applied to transfer "A" licence held by Pacific Eagle to Seacrest--Pacific Eagle initially held "AT" licence, combined form of "T" and "A" licences--Contrary to Department of Fisheries and Oceans (DFO) policy to transfer such licences individually--With assurances transfer would not affect catch history, B.C. Packers effected transfer acquiring "A" licence, swapping T.8 and T.92 licences--Eventually Individual Vessel Quotas (IVQ) implemented--IVQ based 70% on average catch history between 1988 and 1992, 30% on vessel length--Radil not realizing until 1997 IVQ for Seacrest calculated according to catch history of Pacific Eagle--When DFO not responding to Radil's request T.8 licence be issued to it, and IVQ of Seacrest be adjusted accordingly, Radil initiating application for judicial review, seeking mandamus, declaratory relief--Campbell J. directing matter proceed as action--Pursuant to that order, Radil filing statement of claim, seeking declaratory relief, damages--Rouleau J. ordering damages part of relief be struck out as not part of relief initially sought by judicial review--Applicant in judicial review proceeding cannot, on becoming plaintiff in same proceeding in form of action, seek new relief--Radil amended statement of claim, removing plea for damages--In 1999 Radil commenced present action claiming damages based on same factual circumstances--Appeal allowed--(1) Whether Prothonotary erred in holding Federal Court Trial Division had jurisdiction to consider application for declaratory relief in nature of judicial review against Minister pursuant to Federal Court Act, ss. 18, 18.1 initially commenced by statement of claim--In refusing to strike out portion of prayer for relief seeking declaratory relief as against Crown, Prothonotary concluded Federal Court Trial Division had jurisdiction to consider granting such relief in proceedings commenced by statement of claim--Relied on Johnson v. Ramsay Fishing Co. (1987), 47 D.L.R. (4th) 544 (F.C.T.D.)--However Johnson decided under Federal Court Act in force in 1987 which did not contain present ss. 18(3), 18.1, making it mandatory that declaratory relief against federal board, commission or other tribunal be commenced only through application for judicial review--In 1987, Rules provided declaratory relief against Minister had to be brought by action, not by originating notice of motion as current Rules require--Furthermore former Federal Court Rules rules of Court--Federal Court Act, ss. 18(3), 18.1 enacted by Parliament--Prothonotary clearly wrong in not striking out declaratory relief--(2) Whether prothonotary erred in holding test for reasonable cause of action whether or not exercise of ministerial discretion or minister's administrative decision reviewable--Prothonotary stating where Minister exercised discretion in administrative capacity and decision challenged, test to be met for reasonable cause of action whether Minister's decision reviewable--Availability of procedural review of ministers' administrative decisions pursuant to Federal Court Act creating judicial review procedure, but not creating cause of action--Prothonotary starting inquiry by asking whether or not Minister's discretionary decision reviewable--Instead, should have first asked whether or not statement of claim disclosed any cause of action--Test on striking out proceedings whether plain, obvious claim disclosing no reasonable cause of action--Action based only on availability of judicial review not disclosing any cause of action known in law--Plaintiff's primary claim right to fishing licence, particular quota; damages flowing from not receiving licence, quota--Subject-matters raised in statement of claim covered in Fisheries Act, Pacific Fisheries Regulations--Act, s. 7 providing Minister having absolute discretion in granting fishing licences and term of such licence cannot exceed nine years--Joliffe v. The Queen, [1986] 1 F.C. 511 (T.D.) pointing out no property right in fishing licence--DFO not having fiduciary duty, trust, statutory duty to assure plaintiff's "T" licence getting largest possible fish catch attributed so that plaintiff making most possible money--Minister's decision to exercise absolute discretion to issue fishing licence exercise of administrative function--Grant of fishing licence vesting no interest or property in grantee--No automatic right of renewal of fishing licence--Plaintiff cannot establish three elements of fiduciary duty because Minister not gaining any direct, indirect personal advantage by having fish catch history of T.8 licence with Pacific Eagle instead of Seacrest--(3) Whether or not material facts pleaded support cause of action in negligence--Availability of administrative law remedy through judicial review generally negates duty of care--Prothonotary erred in concluding judically reviewable Minister's decision amounted to, created cause of action--Absolutely discretionary decision by Minister to authorize, issue fishing licence, which fishing licence remaining property of Crown, not giving rise to right between plaintiff, Minister--Cause of action not arising by virtue of fact such discretionary decision reviewable through application for judicial review--(4) Whether prothonotary erred in holding Minister's application of quota policy in discretionary decision to issue fishing licence could be challenged in action if plaintiff pleaded misfeasance--In order to make out tort of misfeasance in public office plaintiff must establish Minister acting either with malice or knowledge had no power to do what doing; Minister's actions deliberately calculated to injure plaintiffs; damage resulted therefrom--Plaintiff not pleading material facts on which relies to make cause of action of misfeasance of public office--Prothonotary erred in allowing plaintiff to amend statement of claim to plead misfeasance--Minister's discretionary decision only reviewable in application for judicial review pursuant to grounds set out in s. 18.1(4), encompassing misfeasance in s. 18.1(4)(e)--Prothonotary should have struck out statement of claim on basis Minister's discretionary decision can only be reviewed in application for judicial review--Leave to amend should not have been granted as no amendment available that could create cause of action herein--Federal Court Act, R.S.C., 1985, c. F-7, ss. 18 (as am. by S.C. 1990, c. 8, s. 4), 18.1 (as enacted idem, s. 5)--Fisheries Act, R.S.C., 1985, c. F-14, s. 7--Pacific Fisheries Regulations, 1993, SOR/93-54.