Jackson v. Ontario (Natural Resources), 2009 ONCA 846
COURT OF APPEAL FOR ONTARIO
Laskin, Simmons and Lang JJ.A.
BETWEEN
Larry Jackson, L.R. Jackson Fisheries Ltd. and William Cronheimer
Applicants (Appellants)
and
Her Majesty the Queen in Right of Ontario as Represented by the Minister of Natural Resources
Respondent (Respondent)
John H. McNair and Mavis J. Butkus, for the appellants
William Manuel, Edmund Huang and Elaine Atkinson, for the respondent
Timothy S.B. Danson, for the intervener, Ontario Federation of Anglers and Hunters
Heard: May 6, 2009
On appeal from the judgment of the Divisional Court (E.R. Browne, J.R. Henderson and D.J. Gordon JJ.) dated May 26, 2008, with reasons reported at (2008), 2008 ON SCDC 34273, 239 O.A.C. 29.
A. OVERVIEW
1Ontario and four Americans states – Michigan, New York, Ohio and Pennsylvania – border Lake Erie. Every year, government representatives from these five jurisdictions meet as a committee – the Lake Erie Committee – to discuss the management of the fish stocks in the Lake. The Committee recommends an annual total allowable catch for the two economically most important fish, walleye and yellow perch, and then allocates each jurisdiction’s share of that catch based on a fixed formula. Ontario’s Minister of Natural Resources typically accepts the Committee’s recommendations.
2The Minister is authorized to issue commercial fishing licences, and to attach as conditions to those licences catch quotas for each species of fish. These individual quotas for walleye and yellow perch are based on Ontario’s share of the total allowable catch.
3The appellants carry on commercial fishing operations in Lake Erie. They have earned their livelihood from fishing for many years. In 2007 and 2008, the Minister reduced their individual catch quotas for walleye and yellow perch. The Minister did so because she had accepted the Lake Erie Committee’s recommendations for a reduction in Ontario’s share of the total allowable catch for each fish.
4The appellants then brought a judicial review application to challenge the regulatory regime by which the provincial Minister imposes catch quotas in commercial fishing licences for Lake Erie. They sought a declaration that the federal Ontario Fishery Regulations for 1989 and 2007 are ultra vires to the extent that they authorize the provincial Minister to impose these quotas in their licences. And they sought to set aside their walleye and yellow perch quotas for 2007 and 2008. The Divisional Court dismissed their application.
5On their appeal, the appellants argue the same three points that were rejected by the Divisional Court:
Neither the federal Fisheries Act, R.S.C. 1985, c. F-14, nor the regulations to this Act passed by the Governor in Council validly delegate to Ontario’s Minister of Natural Resources the authority to attach catch quotas to commercial fishing licences;
The Minister improperly fettered her discretion by accepting the Lake Erie Committee’s annual recommendations on the total allowable catch for walleye and yellow perch; and
The Minister’s exercise of her discretion to allocate individual catch quotas was unreasonable because of her reliance on the Lake Erie Committee’s recommendations.
What underlies all three arguments is the appellants’ contention that instead of invariably accepting the Lake Erie Committee’s recommendations, the Minister should fix overall catch quotas independently.
6To put these arguments in context, I will review briefly the regulatory framework for managing the Lake Erie fishery.
B. REGULATORY FRAMEWORK
7The management of Ontario’s fisheries is an example of both cooperative federalism and international cooperation.
1. The Applicable Federal Legislation
8Section 91(12) of the Constitution Act, 1867 (U.K.) 30 & 31 Victoria, c.3, gives Parliament exclusive legislative authority in relation to inland fisheries. Parliament has exercised that authority by passing the Fisheries Act. Under s. 7(1) of that Act, the federal Minister of Fisheries and Oceans may “issue or authorize to be issued leases and licences for fisheries or fishing”. Section 43, which is germane to this appeal, authorizes the Governor in Council to make regulations on a wide variety of subjects. These include regulations:
For the proper management and control of the sea-coast and inland fisheries;
Respecting the conservation and protection of fish;
Respecting the issue, suspension and cancellation of licences and leases;
Respecting the terms and conditions under which a licence may be issued;
Prescribing the powers and duties of persons engaged or employed in the administration and enforcement of the Act; and
Authorizing those engaged in the administration and enforcement of the Act to vary a fishing quota or limit the size or weight of fish that is fixed by regulation.
2. The Federal Ontario Fishery Regulations
9The Governor in Council has exercised its authority under s. 43 of the Fisheries Act by passing, at various times, Ontario Fishery Regulations (OFR). Three sets of regulations were discussed in this appeal: OFR 1978, OFR 1989 and OFR 2007.1
10OFR 1978 contained detailed rules regulating commercial fishing. These rules included, for example:
Prohibitions against the use of listed fishing gear;
Restrictions on the placement of nets;
General and special conditions of gill net licences in specific water;
Conditions of carp and sturgeon gill net licences and trawl net licences;
Size of mesh for gill nets;
Regulation of quantities of underweight or undersized fish;
Prohibitions against fishing gear in identified waters between certain dates;
Maximum quantities and mesh sizes of gill nets;
Aggregate quotas for yellow pickerel, sturgeon, lake trout and whitefish for each fishing licence;
Seasonal and global quotas for commercial fishing by body of water and fish species, including lake trout, lake herring, chubb, whitefish and yellow perch; and
Minimum size limits for commercial catches for ciscoes, herring, lake trout, sturgeon, whitefish, yellow pickerel and perch depending on the body of water from which the fish were harvested.
11In 1989, the OFR was substantially rewritten and streamlined. Much of the detail that had been in OFR 1978 was removed and attached to individual commercial fishing licences. The regulatory impact analysis statement that accompanied OFR 1989 described the thinking behind this policy change:
For commercial fishing, cumbersome, indirect controls over fishing gear are removed and replaced by direct controls (closed seasons together with an explicit allocation of fish to each licensed commercial fisherman). This will allow commercial fishermen to fish in more economically efficient ways and reduce their capital costs for equipment over the long term and will encourage the industry to maximize the value of landings through innovative marketing and quality control.
See Canada Gazette Part II, Vol. 123 No. 4, pp. 1430-1433 at 1432.
12In 2007, the OFR was again rewritten and even further streamlined. However, the policy change reflected in OFR 1989 was carried forward into OFR 2007. An important part of the appellants’ argument on improper delegation rests on a comparison between what they describe as a comprehensive federally-enacted regulatory scheme governing commercial fishing in Ontario in OFR 1978, and what they allege is the absence of a comprehensive scheme in OFR 1989 and OFR 2007.
13OFR 1989 and OFR 2007 do, however, contain provisions concerning the licensing of commercial fishing. For example, s. 3(1)(a) of OFR 2007 stipulates that “no person shall, except as authorized under a licence, fish”. The provincial aspect of the legislative scheme comes into play through the definition of licence. Section 1(1) of OFR 2007 defines a licence to mean, among other things, “a licence or permit issued under the Fish and Wildlife Conservation Act, 1997”, S.O. 1997, c. 41.
14Consistent with the policy change first reflected in OFR 1989, s. 4(1) of OFR 2007 authorizes the provincial Minister to impose a broad array of terms and conditions in a commercial fishing licence, including a quota on the quantity of a species of fish that may be caught.
3. Ontario’s Fish and Wildlife Conservation Act, 1997
15The legislative underpinning for Ontario’s management of its fisheries is the provincial Fish and Wildlife Conservation Act, 1997. Section 60 authorizes the Minister of Natural Resources to issue licences for the purpose of this Act and the Ontario Fishery Regulations.
4. The Lake Erie Committee
16The last link in the cooperative arrangements for managing Ontario’s fishery on Lake Erie is the Lake Erie Committee. In 1954, Canada and the United States entered into the Convention on Great Lakes Fisheries. Article II of the Convention established the Great Lakes Fisheries Commission. The Commission in turn established the Lake Erie Committee.
17The Lake Erie Committee operates under a joint strategic plan, which was agreed to by the Great Lakes Fisheries Commission, Ontario, the eight Great Lakes states and the two federal governments. This joint strategic plan mandates a coordinated approach to the management and allocation of fish stocks on the Great Lakes. Specifically, the plan states that “protection of fish stock from overexploitation by any or all user groups is a paramount responsibility of all fishery agencies. Fishery agencies need to make joint allocation decisions on stocks of common concerns.” The Lake Erie Committee is charged with carrying out this mandate on Lake Erie.
18The Committee has five members, one for each of the jurisdictions bordering the Lake. The Ontario Minister’s delegate on the Committee and its Chair at the time was Michael Morencie, a senior public servant in the Ministry of Natural Resources and Manager of the Ministry’s Lake Erie Management Unit. On the judicial review application, Mr. Morencie testified extensively about the deliberations of the Lake Erie Committee and its processes for making recommendations on the annual allowable harvest for walleye and yellow perch.
19The Committee receives proposals from two sub-bodies – the Walleye Task Group and the Yellow Perch Task Group – on a recommended allowable harvest for each species. Ontario experts are members of both groups. The Committee relies on the Task Groups’ proposals in formulating its own recommendations for the total allowable catch for walleye and yellow perch.
20Mr. Morencie acknowledged that conflicts arise between Ontario’s interests and the interests of the American states. Commercial fishing on Lake Erie is largely confined to Ontario’s part of the Lake. The American side is dominated by sport fishing; walleye, in particular, is the mainstay of a large sport fishing community. Consequently, the American representatives on the Committee tend to be unsympathetic to commercial fishing and press for more conservative total catch quotas than does Ontario. As there is no weighted voting on the Committee, Ontario frequently finds itself in a minority position.
21Still, Mr. Morencie said that the Lake Erie Committee operates by consensus. It aims for considerations jointly agreed to by all five Committee members.
5. Ministerial Discretion
22The quotas for walleye and yellow perch allocated to the appellants and other commercial fishing operations in Lake Erie depend on three discretionary decisions by the Minister of Natural Resources or her delegate. The Minister’s first discretionary decision concerns the total allowable catch for each species. Usually – although, as I will discuss, not always – the Minister exercises her discretion to accept the Lake Erie Committee’s recommendations. Ontario is then allocated a share of the total allowable catch for walleye and yellow perch based on a formula, which has been accepted by all jurisdictions. Ontario receives 43 per cent of the total allowable catch for walleye and 49 per cent of the total allowable catch for yellow perch. These percentages are based on a proportionate share of the functional habitat for walleye, and on the surface area of waters within Ontario’s jurisdiction for yellow perch. The total allowable catch for each species of fish changes every year, but Ontario’s percentage of the overall allowable catch does not.
23The Minister’s second decision is her exercise of discretion to apportion Ontario’s share of the total allowable catch among its user groups: commercial fishing, recreational or sport fishing, aboriginal fishing and government research. In practice, the Minister allocates about 98 per cent of Ontario’s share to commercial fishing.
24The Minister’s final decision is the allocation of quota amounts for each species of fish to individual commercial fishing licences. The reduction in the appellants’ individual quotas in 2007 and 2008 prompted their challenge to the regulatory regime.
C. ANALYSIS
1. Has the Governor in Council validly delegated authority to Ontario’s Minister of Natural Resources to attach quotas to commercial fishing licences?
25Under OFR 1978, OFR 1989 and OFR 2007, the Governor in Council delegated to Ontario’s Minister of Natural Resources authority to attach quotas to individual commercial fishing licences. The appellants’ principal ground of appeal is that this delegation under OFR 1989 and OFR 2007 is invalid.
26Under our constitutional system, Parliament cannot delegate its legislative powers to a provincial legislature. Parliament can, however, delegate its legislative powers to another body: see R. v. Furtney, 1991 SCC 30, [1991], 3 S.C.R. 89 at 104. Here, Parliament has not delegated its legislative power in relation to inland fisheries to the provincial legislature. Instead, it has delegated its legislative power over fisheries to another body, the Governor in Council, which, in turn, has sub-delegated this power to the Ontario Minister of Natural Resources. Thus, the delegation at issue here is not constitutionally impermissible. The narrow question raised by the appeal is whether the delegation is invalid because it was not carried out properly.
27In support of their argument on the invalidity of the delegation, the appellants make three submissions. First, they say that the delegation is invalid because the Fisheries Act does not specifically authorize the Governor in Council to delegate powers – including the power to attach species quotas to commercial fishing licences – to the provincial Minister. Second, they say that the delegation is invalid because neither OFR 1989 nor OFR 2007 establishes a “comprehensive federally-enacted regulatory scheme”. Third, they say that the delegation is invalid because what has been delegated is legislative power, not administrative power.
28The appellants acknowledge that in 1985, in Peralta et al. and the Queen in Right of Ontario et al. v. V. Warner et al. (1985), 49 O.R. (2d) 705 (C.A.), aff’d 1988 SCC 28, [1988] 2 S.C.R. 1045, this court rejected a similar challenge to the Governor in Council’s delegation of authority to the provincial Minister to attach quotas to commercial fishing licences. That delegation was under OFR 1978 and this court upheld its validity. The appellants submit that the delegation in question in Peralta differs from the delegation in question on this appeal. In OFR 1978, the appellants say, the federal government established detailed regulatory provisions for commercial fishing, and the provincial Minister allocated quotas within and consistent with those provisions. Thus, the sub-delegation from the Governor in Council to the provincial Minister was valid. By contrast, the appellants say, the absence of detailed regulatory provisions in OFR 1989 and OFR 2007 makes the sub-delegation to the provincial Minister invalid.
29I do not agree with the appellants’ submissions. The policy change reflected in the streamlining of OFR 1989 and OFR 2007 – or in the appellants’ words, the removal of “a comprehensive federally-enacted regulatory scheme – does not turn a valid sub-delegation into an invalid one. In my view, the Governor in Council has validly sub-delegated to the provincial Minister of Natural Resources authority to attach quotas to commercial fishing licences. I will now specifically address the appellants’ three submissions.
(i) No specific authority in the Fisheries Act
30The Fisheries Act does not specifically authorize the Governor in Council to delegate its powers to the provincial Minister. The appellants contend that the Act’s failure to do so renders the delegation invalid. This contention is at odds with Reference Re: Regulations in Relation to Chemicals, 1943 SCC 1, [1943] S.C.R. 1.
31In the Chemicals Reference, the Supreme Court of Canada had to decide whether a broad delegation of powers to the Governor in Council under s. 3 of the War Measures Act authorized the Governor in Council to delegate its powers to subordinate agencies, though the statute did not contain any specific wording that it could do so. Despite the absence of specific wording, the court held that the Governor in Council had authority to delegate to subordinate agencies. Chief Justice Duff put the principle this way at 12:
I repeat, there is nothing in the words of section 3 that, when read according to their natural meaning, precludes the appointment of subordinate officials, or the delegation to them of such powers as those in question. Ex facie such measures are plainly within the comprehensive language employed, and I know of no rule or principle of construction requiring or justifying a qualification that would exclude them.
And in concurring reasons, Rinfret J. stated at 19:
That Act conferred on the Governor in Council subordinate legislative powers; and it is conceded that it was within the legislative jurisdiction of Parliament so to do. In fact, delegation to other agencies is, in itself, one of the things that the Governor in Council may, under the Act, deem “advisable for the security, defence, peace, order and welfare of Canada” in the conduct of the war.
32Any suggestion that this principle, which originated in war time legislation, was confined to circumstances of emergency was dispelled in Reference Re: Agricultural Products Marketing Act, 1970 (Canada), 1978 SCC 10, [1978] 2 S.C.R. 1198. There, the Supreme Court affirmed that the rationale underlying the Chemicals Reference was not limited to emergency legislation.
33Therefore, the absence of specific authority in the Fisheries Act is not fatal to the Governor in Council’s delegation of authority to the provincial Minister. As is invariably the case, the issue becomes one of Parliamentary intent. I agree with Ontario that several considerations show Parliament intended the Governor in Council, in making gegulations under s. 43 of the Fisheries Act, to be authorized to delegate its powers and duties.
34Under s. 43, the Governor in Council is authorized to make regulations “respecting” a wide range of subjects, including for example, “respecting the terms and conditions under which a licence and lease may be issued”. “Respecting” is a broad term and, in my view, reflects Parliament’s intention that the Governor in Council have authority to delegate its powers to other bodies.
35Moreover, s. 43(l) of the Fisheries Act authorizes the Governor in Council to prescribe the powers and duties of persons employed in the administration and enforcement of the statute. At least implicitly, this provision shows that the Governor in Council can make regulations delegating its powers and duties. At the same time, s. 43(l) does not limit the persons who may be prescribed powers and duties. The choice of delegate is that of the Governor in Council. And the Governor in Council has chosen the provincial Minister. Section 4(1) of OFR 2007 authorizes the provincial Minister to specify a broad array of terms and conditions in commercial fishing licences, including species quotas on the fish that can be caught.
36In addition to these considerations, administrative necessity underscores Parliament’s intent. In Peralta, Mackinnon A.C.J.O. commented on the importance of administrative necessity at p. 717:
When courts have considered whether delegation of ministerial powers was intended, considerable weight has been given to “administrative necessity”, that is, it could not have been expected that the Minister (in this case the Governor in Council) would exercise all the administrative powers given to him. Further, in such cases the suitability of the delegate has been a material factor in determining whether such delegation is intended and lawful. [Citation omitted.]
37And, as Mackinnon A.C.J.O. pointed out at p. 717: “it is the provincial ministers, familiar with the multiplicity of situations and problems in their own province, to whom these powers are delegated.”
(ii) Absence of a comprehensive federally-enacted regulatory scheme
38The appellants also contend that the delegation of authority to the Ontario Minister to attach quotas to commercial fishing licences and the exercise of that authority are invalid because of the absence in OFR 1989 and ORF 2007 of any detailed provisions or even guidelines governing commercial fishing in Ontario. The appellants maintain that in the absence of any standards in the federal legislation, the provincial Minister is not applying a federal scheme when she attaches quotas as conditions to the appellants’ licences. In advancing this contention, the appellants rely on the majority judgment of the Supreme Court of Canada in Brant Dairy Co. v. Ontario (Milk Commission), 1972 SCC 11, [1973] S.C.R. 131, where the majority of the Supreme Court held that a regulation purportedly made in the exercise of a delegated power was invalid. I do not accept the appellants’ argument.
39Since the Chemicals Reference, the law has been clear that in delegating authority the delegating body – Parliament, or as in this case, the Governor in Council – need not establish a comprehensive regulatory regime or even fix standards or guidelines. In the Agricultural Product Marketing Act Reference at 1225-1226, the majority judgment affirms that there is no constitutional requirement to do so:
Involved in the appellants’ submissions, as reflected in their factum and in oral argument, was the contention that there is a constitutional requirement in the delegation of authority that standards be fixed by Parliament or where, as here, there is delegation in depth, that is by orders which the Governor-in-Council is authorized to make, the orders of the Governor-in-Council should establish standards and not, by wholesale redelegation, leave their determination to the provincial boards nor, as s. 2(1) provides, adopt the various provincial standards for federal purposes. I do not think this Court would be warranted in imposing such a constitutional limitation on the delegation of authority. The matter of delegation in depth is covered by the judgment of this Court in Reference re Regulations (Chemicals) under the War Measures Act [1943 SCC 1, [1943] S.C.R. 1.], and I would not limit its rationale to emergency legislation. There is sufficient control on a administrative law basis through the principle enunciated and applied by this Court in the Brant Dairy Case … and I find no ground for raising it to a constitutional imperative.
40Thus the absence of detailed provisions governing the commercial fishery in OFR 1989 and ORF 2007 does not render the Governor in Council’s delegation to the provincial Minister invalid.
41The Brant Dairy case referred to in the passage from the Agricultural Product Marketing Act Reference quoted above shows how the exercise of delegated authority can be invalid. But the principle that emerges from Brant Dairy does not assist the appellants. In Brant Dairy, Ontario’s Milk Act, 1965 authorized the Milk Commission to regulate the marketing of milk in the province, including fixing quotas. The Act also authorized the Milk Commission to delegate its regulation making power to the Milk Marketing Board. The Commission did so by making a regulation sub-delegating its powers to the Board. That sub-delegation was held to be valid: “the Commission could lawfully invest the Board with the discretion originally committed to the Commission in the carrying out of the powers conferred by the Act.”
42The problem with the sub-delegation arose when the Milk Marketing Board failed to properly exercise the power delegated to it. The Commission had delegated to the Board the power to make regulations providing for, among other things, “the fixing and allotting to persons of quota for the marketing of a regulated product on such basis as the Commission deems proper”. Instead of carrying out the power delegated to it, however, the Board simply passed a regulation providing that “[t]he marketing board may fix and allot to persons quotas for the marketing of milk on such basis as the marketing board deems proper”. The court held that this regulation was ultra vires because:
What the Board has done has been to exercise the power in the very terms in which it was given. It has not established a quota system and allotted quotas, but has simply repeated the formula the statute, specifying no standards and leaving everything in its discretion.
43In other words, instead of making a regulation setting out quotas, the Board made a regulation authorizing itself to allot quotas in its discretion. That, the Court said, was illegal:
A statutory body which is empowered to do something by regulation does not act within its authority by simply repeating the power in a regulation in the words in which it was conferred. That evades the exercise of the power and, indeed, turns the legislative power into an administrative once. It amount to a re-delegation by the Board to itself in a form different from that originally authorized; and that this is illegal is evident from the judgment of this court in Attorney General of Canada v. Brent, 1956 SCC 5, [1956] S.C.R. 318. [at 146-7]
44The Brant Dairy principle does not apply here. Under s. 43 of the Fisheries Act, the Governor in Council was authorized to make Regulations on a variety of matters including regulations respecting the terms and conditions under which a licence may be issued and regulations prescribing the powers and duties of persons engaged in the administration of the Act.
45The Governor in Council validly exercised that authority by passing OFR 1989 and OFR 2007. However, and this is the key difference between the present case and Brant Dairy, the Governor in Council did not delegate to the provincial Minister the power to make regulations fixing species quotas on fish that may be caught; he simply delegated to the provincial Minister, in s. 4(1)(a) of OFR 2007, the authority to specify a quota as a condition of a commercial fishing licence. The Ontario Minister has exercised that discretionary authority given to her by attaching quotas to the appellants’ and other commercial fishing licences. In short, in Brant Dairy the Milk Board acted illegally because it improperly carried out the delegated power given to it; by contrast, here the provincial Minister has acted legally because she has properly carried out the power delegated to her.
(iii) Delegation of legislative, not administrative power
46Finally, the appellants contend that the delegation to the provincial Minister is invalid because what has been delegated is legislative power, not administrative power. The contention appears to be that the Governor in Council can validly delegate only administrative powers.
47Respectfully, this contention is misconceived. For the purpose of determining whether a delegation is valid, the distinction between legislative and administrative power is irrelevant. The delegation of any kind of power, legislative or administrative, to Parliament or a provincial legislature, is not permitted. The delegation of any kind of power, even a legislative power, to an official or to a body other than Parliament or a legislature, is quite permissible: see e.g. Chemicals Reference; R. v. Furtney at para. 33; and Hogg, Constitutional Law of Canada, 5th ed. supplemented (Scarborough: Thomson Carswell, 2007) at 14-22.
48Admittedly, para. 63 of the judgment of this court in Peralta suggests that legislative power cannot be delegated. That suggestion is inconsistent with principles of delegation and with the Supreme Court of Canada’s jurisprudence. Thus, it is unnecessary to characterize the delegation of the provincial Minister. However characterized, the Governor in Council’s delegation of its powers to Ontario’s Minister of Natural Resources is valid.
49I would not give effect to the appellants’ principal ground of appeal.
2. Did the Minister fetter her discretion?
50Fettering of discretion is a common basis for challenging administrative decision-making. It is one of the appellants’ grounds of review on this appeal. They contend that by accepting the Lake Erie Committee’s recommendations on the total allowable catch for walleye and yellow perch, and Ontario’s share of the catch, the Minister has fettered her discretion. I do not accept this contention.
51Decision makers fetter their discretion when they fail to genuinely exercise discretionary power in an individual case, and instead automatically apply an existing policy or guideline: see David J. Mullan, Administrative Law (Toronto: Irwin Law 2001) at 115-116. The appellants argue that, year after year, in allocating quotas to commercial fishing licences, the Minister has automatically accepted the recommendations of an outside body, the Lake Erie Committee, instead of independently determining Ontario’s share of the total allowable catch for each species of fish. In my view, the appellants’ argument fails for three reasons.
52First, Ontario has accepted, as a matter of policy, joint decision-making on the management of fish stocks in Lake Erie. It is surely not the court’s role to second guess this policy. It is not for the court to say, as the appellants urge us to do, that the Minister should adopt a “go it alone” policy.
53Moreover, Ontario’s policy makes good sense. Fish do not respect the 49th parallel; our ecosystem does not pay attention to international boundaries. Cooperative decision making among the five jurisdictions with a stake in the Lake Erie fishery is undoubtedly the best way to manage and conserve a fragile yet shared resource.
54Second, the appellants’ argument does not take into account of the process by which the Lake Erie Committee arrives at its recommendations. Ontario’s own experts and delegates participate in that process. The delegate from Ontario’s Ministry of Natural Resources, along with the four other delegates, must agree on the recommendations. It is, therefore, hardly surprising that the Minister finds the Committee’s recommendations persuasive, even compelling, and usually accepts them.
55Third, although the Lake Erie Committee’s recommendations are persuasive, the Minister does not automatically rubber stamp them. The record before us refers to two examples where the Minister did not accept the Committee’s recommendations: the 2004 arbitration and the 2005 yellow perch error correction.
56The 2004 arbitration arose because members of the Lake Erie Committee believed that the harvest of walleye should be reduced. However, the members were at an impasse on how to achieve this reduction. The American members insisted Ontario make a 40 per cent cut to its commercial fish harvest; Ontario proposed a 20 to 22 per cent cut. Because of the impasse, the Committee appointed two experienced arbitrators to consider the issue. Out of their consideration, the parties reached a negotiated settlement: Ontario accepted a 30 per cent cut in its commercial walleye harvest. This example shows that Ontario did not simply accept the American position on the allowable catch for commercial walleye fishing.
57In 2005, the Lake Erie Committee’s recommendation on yellow perch erroneously understated Ontario’s allocation. Ontario did not accept the Committee’s recommendation; it complained. And its complaint led to an error correcting adjustment to the allocation. This example also shows that the Minister has not automatically surrendered her discretion to the Committee’s recommendations.
58For these reasons, I do not accept the appellants’ argument on fettering of discretion.
3. Has the Minister exercised her discretion unreasonably?
59The appellants’ related argument is that the Minister has exercised her discretion unreasonably because, in allocating quotas to commercial fishing licences, she has relied on the Lake Erie Committee’s recommendations on the total allowable catch. In support of this argument, the appellants submit that the Lake Erie Committee relies on data of dubious reliability, and that a coordinated strategy for managing the Lake Erie fishery does not require Ontario to surrender its decision making to a joint international body. The Divisional Court rejected these submissions, concluding that “it is not unreasonable for the Minister to heavily rely on the recommendations of the [Lake Erie Committee] when the Minister determines the fish quota for the applicants.” I agree with the Divisional Court’s conclusion.
60The Divisional Court specifically addressed the appellants’ attack on the reliability of the data used by the Committee:
The Minister also acknowledges that the data used by the task groups may be uncertain or indefinite, but the evidence shows that the data used is the best data available. Moreover, the [Lake Erie Committee] and the task groups are aware of the fact that the data is uncertain, and have an ongoing discussion as to how to improve the reliability of the data.
I agree with the Divisional Court’s assessment.
61Moreover, the Minister’s reliance on the Lake Erie Committee’s recommendations is entirely reasonable. These recommendations are the product of the collective wisdom, expertise and science of experts from the five jurisdictions that share the Lake Erie fishery. Ontario’s own experts actively participate in the Committee’s deliberations. And the consensual decision-making that produces the catch quotas for walleye and yellow perch. Viewed in this context, the Minister’s adoption of the Committee’s recommendations can only be considered reasonable.
62At the same time, Ontario is not legally required to accept the Lake Erie Committee’s recommendations. Although its recommendations ordinarily are compelling, the Minister occasionally has departed from them, reinforcing the reasonableness of her approach.
63I would not give effect to this ground of appeal.
D. CONCLUSION
64I would reject the three grounds of appeal raised by the appellants. In my view, the Governor in Council has validly delegated authority to Ontario’s Minister of Natural Resources to attach walleye and yellow perch quotas to the appellants’ commercial fishing licences.
65Moreover, in ordinarily adopting the Lake Erie Committee’s recommendations on the total allowable catch for walleye and yellow perch, the Minister has neither fettered her discretion nor exercised her discretion unreasonably.
66I would dismiss the appeal, with costs payable by the appellants and fixed at $20,000, inclusive of disbursements and G.S.T. No costs shall be awarded to or against the intervener.
RELEASED: December 1, 2009 “John Laskin J.A.”
“JL” “I agree Janet Simmons J.A.”
“I agree S.E. Lang J.A.”
OFR 1989 is at SOR/89-93 OFR 2007 is at SOR/2007-237