Divisional Court File No.: 1656
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT (At London)
BROWNE, HENDERSON AND GORDON JJ.
B E T W E E N:
Larry Jackson, L. R. Jackson Fisheries Ltd., and William Cronheimer
J. McNair and M. Butkus, for the Applicants
Applicants
- and -
Her Majesty the Queen in Right of Ontario as represented by the Minister of Natural Resources
J. Coop, E. Atkinson, and E. Huang, for the Respondent
Respondent
HEARD: April 21, 22, and 23, 2008
REASONS FOR JUDGMENT
1This is an application for judicial review of decisions made by the provincial Minister of Natural Resources (“the Minister”) whereby the Minister imposed quotas on the number of yellow perch and walleye fish that the applicants were permitted to catch as conditions of the commercial fishing licences that were issued to the applicants for the years 2007 and 2008.
2The applicants raise two general issues regarding the validity of the decisions made by the Minister. First, the applicants challenge the delegation to the Minister of the power to impose quotas. The applicants submit that the statutory framework that purportedly empowers the Minister constitutes an unlawful sub-delegation of powers from the federal Governor-in-Council (“GIC”) to the provincial Minister, and also constitutes an unconstitutional inter-delegation of federal legislative authority to the provincial Minister.
3Second, the applicants submit that even if this court finds that the Minister had the jurisdiction to make these decisions, the Minister did not exercise that jurisdiction in a reasonable manner. In particular, it is submitted that the Minister has fettered his/her own discretion by merely adopting the recommendations regarding fish quotas that were made each year by the Lake Erie Committee (“LEC”).
BACKGROUND
4The constitutional authority to pass legislation with respect to the seacoast and inland fisheries is with the federal government, as set out in section 91(12) of the Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, reprinted in R.S.C. 1985, App. II, No. 5. Pursuant to sections 92(9) and (13) respectively of the Constitution Act, 1867, the provincial government has the authority to pass legislation regarding licences in order to raise revenue for the Province, and regarding property and civil rights in the Province.
5In the present case, the Minister is authorized to issue commercial fishing licences within the Province by the Fish and Wildlife Conservation Act, 1997, S.O. 1997, c. 41. The Minister is given the authority to attach conditions to those fishing licences, including the authority to set quotas as a condition of a provincial fishing licence, by the Ontario Fishery Regulations passed by the GIC pursuant to the power delegated to the GIC by the federal Fisheries Act, R.S.C. 1985, c. F-14.
6Another component in the overall picture is the Great Lakes Fishing Commission (“GLFC”). In 1954 the governments of Canada and the USA signed a convention that established the GLFC as a mechanism to deal with problems related to fishing and fisheries on the Great Lakes. A subcommittee of the GLFC is the LEC, which specifically deals with fishing issues related to Lake Erie. The LEC is composed of members from each of Ontario, Ohio, New York, Pennsylvania and Michigan.
7Each year task groups are assembled to make recommendations to the LEC as to the recommended annual harvest (“RAH”) for certain fish species in Lake Erie. The task groups are comprised of biologists and ecologists from each of the member jurisdictions who review relevant data and arrive at a consensus RAH.
8Those recommendations are then considered by the LEC, which attempts to reach a consensus as to a total allowable catch (“TAC”) of yellow perch and walleye from Lake Erie. The LEC then makes a TAC recommendation to the member jurisdictions for the entire lake for those species. If the member jurisdictions accept the recommended TAC, then the global TAC is divided between the jurisdictions in a preset formula.
9The recommendations of the LEC are not binding on the Minister. However, the extent to which the Minister relies upon the TAC recommendations from the LEC in setting quotas as conditions of commercial fishing licences in Ontario is a significant issue in this application.
THE DELEGATION ISSUE
10The Ontario Court of Appeal (“OCA”) considered both the sub-delegation and the inter-delegation arguments as those arguments applied to an earlier version of the Ontario Fishery Regulations, C.R.C., c. 849 (1978), in the case of Peralta v. Ontario (1985), 49 O.R. (2d) 705, aff’d 1988 28 (SCC), [1988] 2 S.C.R. 1045. In that case the OCA concluded that the overall statutory framework did not constitute an unlawful or unconstitutional delegation of authority.
11Regarding sub-delegation, the OCA held that it was acceptable for the GIC to sub-delegate to an executive body provided the GIC did not delegate all of the authority that was conferred on it by Parliament.
12The OCA wrote, at page 727 of Peralta:
The Minister was only empowered to act within the scheme established generally by the Ontario Fishery Regulations. I cannot accept that the Minister was delegated what the Governor in Council alone was empowered to do and that the regulations merely repeated what Parliament had given to the Governor in Council.
13Regarding inter-delegation, the OCA found that the statutory structure in place at the time constituted a delegation of administrative powers, not legislative authority, and therefore was not ultra vires. See pages 727-31 of the Peralta case.
14The OCA also found that, by way of the Ontario Fishery Regulations, the GIC had set general policies for fishing, and had delegated to the Minister the power to set individual quotas consistent with the regulations. The OCA confirmed at page 723 that this was an acceptable delegation of authority to the Minister.
15After the Peralta decision, in 1989 and again in 2007, substantial amendments were made to the Ontario Fishery Regulations. In our view, both the Ontario Fishery Regulations, 1989, S.O.R./89-93, and the Ontario Fishery Regulations, 2007, S.O.R./2007-237 continue to set general policies for fishing, including the division of the waters of Ontario into specific areas, the prohibition against the use of certain equipment, the establishment of open seasons for certain fish, and the prescription of size, catch and possession limits for anglers. As part of the general policy scheme, in both versions of the regulations, the setting of individual quotas for commercial fisheries continues to be delegated to the Minister.
16These amendments to the regulations, although significant, in our view do not change the general organization of the statutory structure, nor do they change the characterization of the nature of the delegation. Therefore, in our opinion the principles established in Peralta apply to the facts of this case.
17Accordingly, we find that the applicants’ submission on this ground fails.
THE MINISTER’S DECISION MAKING PROCESS
18The Minister is given the discretion to set quotas as conditions of commercial fishing licences by the Ontario Fishery Regulations, 1989, s.36(1), which reads as follows:
The Provincial Minister may, in a commercial fishing licence, impose terms and conditions respecting
(a) the waters from which fish may be taken;
(b) the species, size and quantity of fish that may be taken; ...
19A similar discretion is maintained in the Ontario Fishery Regulations, 2007, at s.4(1)(a) which reads as follows:
The provincial Minister may, for the proper management and control of fisheries and the conservation and protection of fish, specify in a licence any term or condition that is not inconsistent with these Regulations respecting one or more of the following matters:
(a) the species, quantity, size, weight, age, sex or stage of development of fish that may be caught, retained, possessed, held, loaded, landed, transported, transferred or released; ...
20The parties agree that the standard of review with respect to the Minister’s decisions regarding individual fish quotas is that of reasonableness. The law regarding the reasonableness standard was recently considered by the Supreme Court of Canada (“SCC”) in Dunsmuir v. New Brunswick, 2008 SCC 9.
21In the Dunsmuir case at para. 45, the SCC found that the two variants of reasonableness that appeared in earlier cases should be collapsed into one single form of reasonableness.
22At para. 47 the SCC defined the reasonableness standard by writing:
Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness ... Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.
23Moreover, the SCC reiterated the concept that a certain amount of deference will be given to decisions made by a tribunal that has expertise in the subject area. At para. 53, the SCC wrote, “Where the question is one of fact, discretion or policy, deference will usually apply automatically ....”
24We find that the above-mentioned passages from the Dunsmuir case describe the standard that the applicants must meet in this case.
25One aspect of the applicants’ argument that the Minister did not act reasonably is the applicants’ submission that the Minister unduly fettered his/her discretion by merely accepting and adopting the recommendations of the LEC, a committee that the applicants characterize as an external body.
26The law with respect to fettering is that a Minister may create or adopt policies or guidelines in the exercise of his/her decision-making process provided the Minister keeps an open mind and does not create or adopt the policies or guidelines so as to abdicate his/her responsibility. It is often helpful to applicants to know in general terms what the policy and practice of the Minister will be. For reference see the case of Maple Lodge Farms Ltd. v. Canada, 1982 24 (SCC), [1982] 2 S.C.R. 2 at 6-7, and the case of K.F. Evans Ltd. v. Canada (Minister of Foreign Affairs), 1996 11844 (FC), [1997] 1 F.C. 405 at paras. 23-24.
27In the present case, it is clear that the Minister has not abdicated his/her responsibility to make the decisions with respect to fish quotas. The evidence is that the Minister, through his/her staff, participates in the LEC process both at the level of the task groups and at the level of the LEC as a whole. Furthermore, the evidence establishes that Michael Morencie (“Morencie”), who is the Minister’s delegate for the purpose of setting quotas and issuing commercial fishing licences pursuant to s.61 of the Fish and Wildlife Conservation Act, 1997, is an active participant in the LEC. In fact, at the present time Morencie is the chair of the LEC.
28Therefore, by the time the LEC makes a recommendation for a global TAC to the Minister, the Minister has had a significant amount of input, through Ministry staff, into the LEC process. Still further, we accept the evidence of Morencie that the investigation by Ministry staff is an ongoing undertaking and that the Minister does not consider him/herself to be bound to accept the LEC recommendations. We accept the evidence that the Minister annually considers the TAC recommendations of the LEC and independently decides whether to accept them.
29Therefore, we find that the applicants have not established that in following a practice of annually considering the LEC recommendations, the Minister has fettered the exercise of his/her discretion so as to constitute an abdication of his/her responsibility.
30Having made the above-mentioned finding, the remaining issue is whether the Minister acted reasonably in setting the individual quotas for 2007 and 2008, considering the test described in the Dunsmuir case.
31In that respect, the applicants submit that the LEC process has substantial flaws. Among their arguments on this point is that the Province of Ontario is only one of the five members of the LEC and therefore is in a minority position, even though Ontario accounts for almost all of the commercial fishing on Lake Erie. By implication, therefore, it is submitted that Ontario’s interest must succumb to that of the interests of the U.S. states.
32The applicants also correctly state that the task groups and the LEC are mandated by the Joint Strategic Plan to reach a consensus among its members. Therefore, it is argued that the Ontario representatives cannot do what is in the best interests of Ontario, but are required to compromise for the sake of reaching a consensus. Thus, it is submitted that the resultant recommendations are something less than the best result for Ontario.
33Further, the applicants submit that the data used by the task groups is not entirely reliable, and in particular the data received from the U.S. states is less reliable than that received from Ontario.
34Still further, the applicants and other stakeholders are not permitted to participate in the task groups. Moreover, although the applicants are able to make a short presentation to the LEC, the applicants do not have all of the raw data available to them so as to permit them to make an effective presentation.
35These arguments as to the flaws in the LEC process may have varying degrees of validity. However, it is not for this court to review the LEC process. The task group process and the LEC process constitute an international arrangement for policy-making and, as such, are not capable of being the subject of a judicial review.
36This court is only able to review the decisions of the Minister, or the Minister’s delegate, with respect to the setting of the individual quotas. We accept the submission that the Minister relies heavily on the LEC recommendations each year, and but for a correction that was made in 2005 and a protracted negotiation in 2004, the Minister has accepted the LEC recommendations in each of the past 15 years. In summary, we cannot consider the alleged flaws in the LEC process, but we are entitled to consider whether the Minister has acted reasonably by heavily relying on the LEC recommendations.
37Regarding that issue, we have considered the fact that the Ontario portion of Lake Erie is considered to be the largest fresh water commercial fishery in North America. Thus, the management of the fish and the fisheries is of extreme importance to Ontario fishers and the Ontario economy.
38However, it must be acknowledged that Lake Erie is an international body of water. The Province of Ontario and four U.S. states all have interests in Lake Erie, and in the fish harvested from Lake Erie. The basis for the existence of the GLFC and the LEC is quite obvious. If the lake is to be managed and controlled it can only be done through international cooperation. A consensus model for the LEC is a logical extension of the concept of international cooperation.
39It has been suggested that it would be more reasonable for Ontario to “go it alone” in setting quotas as the Province does with respect to other fish species in other lakes. However, given the extent of the commercial fishery in Lake Erie, the competition for certain species of fish between Ontario and the U.S. states, and the competition between commercial fisheries and sport fishers, it is probable that if Ontario did not reach a consensus with the U.S. states, the competition for fish in Lake Erie from five separate jurisdictions would permanently damage the species and the fisheries.
40Furthermore, the breadth of the commercial fishery means that a high degree of expertise is required in order to develop models and forecasts that may be used in the Minister’s decision-making process. In this respect, the Minister’s reliance on the expertise of the scientists from five jurisdictions who participate in the task groups cannot be seen as unreasonable.
41It is acknowledged that the commercial fisheries do not participate in the task groups. There is, however, a limited opportunity for commercial fisheries to make presentations to the LEC, and the commercial fisheries may, and have in the past, make presentations to the Minister at any time.
42The 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 LEC 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.
43Still further, we repeat our earlier finding that the LEC is not an entity that is completely external to the Minister. The Minister’s staff, including biologists and ecologists, participates in both the task groups and the LEC itself, before the LEC recommendations are made to the Minister.
44It must be remembered that in developing individual fish quotas the reasonableness standard does not mean that the Minister must make the best, the wisest, or the most logical decision. See the case of Carpenter Fishing Corp. v. Canada (1997), 1997 26668 (FCA), [1998] 2 F.C. 548 at para. 41 (C.A.). Rather, the Minister must only make a decision that is within an acceptable range of results. See the Dunsmuir case at para. 47.
45Given all of these considerations we are of the view that it is not unreasonable for the Minister to heavily rely on the recommendations of the LEC when the Minister determines the fish quotas for the applicants.
46Therefore, we find that the Minister’s decisions, and the manner in which they are made, are within a range of acceptable results and thus pass the test described in the Dunsmuir case.
CONCLUSION
47For these reasons the application is dismissed.
48The parties have informed the court that they have agreed that costs should be awarded to the successful party in the amount of $120,000.00, all inclusive. In our view this amount of costs is excessive.
49Both the applicants and the respondent could have narrowed the issues in this application. If the parties had effectively focused on the essential issues at an early stage, this application would have proceeded in a more efficient manner and the required amount of court time would have been reduced. Therefore, we hereby award costs to the respondent in the amount of $75,000.00, all inclusive.
Browne J.
Henderson J.
Gordon J.
Released: “May 26, 2008”
