T-192-98
BETWEEN:
RADIL BROS. FISHING CO. LTD.
Applicant
- and -
HER MAJESTY THE QUEEN AS REPRESENTED BY THE DIRECTOR GENERAL OF THE DEPARTMENT OF FISHERIES AND OCEANS, PACIFIC REGION, and BRITISH COLUMBIA PACKERS LIMITED and TITAN FISHING LTD.
Respondents
REASONS FOR ORDER
CAMPBELL J.
Let the attached transcript of my Reasons for Order delivered orally from the bench at Vancouver, British Columbia, on February 23, 1998, now edited, be filed to comply with section 51 of the Federal Court Act.
(Sgd.) "Douglas Campbell" Judge
Vancouver; British Columbia February 25, 1998
T-192-98
FEDERAL COURT OF CANADA TRIAL DIVISION
(Before the Honourable Mr. Justice Campbell) VANCOUVER, B.C.
February 23, 1998
BETWEEN:
RADIL BROS. FISHING CO. LTD.,
APPLICANT;
AND
HER MAJESTY THE QUEEN AS REPRESENTED BY THE DIRECTOR GENERAL OF THE DEPARTMENT OF FISHERIES AND OCEANS PACIFIC REGION, and BRITISH COLUMBIA PACKERS LIMITED and TITAN FISHING LTD.
RESPONDENTS.
MR. R. POLLARD, Appearing for the Applicant;
MR. D. BROWN, Appearing for the Respondent Titan Fishing Ltd.;
MR. P. PARTRIDGE: Appearing for the Respondent Her Majesty the Queen;
MR. M. BLOK, Appearing for the Respondent B.C. Packers Limited.
REASONS FOR ORDER
CAMPBELL, J. (Orally):
The most striking factor in this case is that the heart of the case is really the 1993 commercial transaction regarding the licences, and it is really a feature which follows from that that the Department of Fisheries proceeded
with the licensing in relation to this transaction. Therefore, I find that the application for relief as requested here by Radil Bros. against the Director General, Department of Fisheries, is really inextricably tied to the transaction itself.
Regarding the kind of relief sought, I am satisfied that the relief cannot be properly determined without a complete investigation of the 1993 transaction, which cannot be done, in my opinion, on a judicial review.
I think it is necessary to discover the necessary facts of the 1993 transaction. It is also important that at the trial of this case that the witnesses testify, their demeanour be observed and their credibility be tested.
Obviously, in this respect, a judicial review on affidavits will not suffice. Also in terms of the custom between Radil Bros. and B.C. Packers, which is, I think, a live issue in this case, it is necessary that there be
discovery and viva voce evidence at trial. That is, regarding the custom, there is a need for all the issues to be considered, in particular the question of consent and the question of agency between Radil Bros., and B.C. Packers, which I am satisfied can also only be resolved on discovery and viva voce evidence.
On the question of there being such urgency as to require the judicial review to go ahead and, therefore, not to convert this to an action, this case has been outstanding in effect since 1993, which is the date of the transaction. The issue has been known to the applicant since at least March of last year. I cannot see that there is a degree of urgency here which would preclude converting this originating notice to an action. Nor do I see any irreparable harm or any other reason which would prohibit the conversion from taking place.
Therefore, in the interests of justice and to be fair, particularly to Titan, this case should be converted to an action.
For these reasons, I decline the application to strike the originating notice but grant the application to convert this to an action under Section 18.4(2) of the Federal Court Act.
Costs of the motion are awarded to Titan Fishing Ltd. against Radil Bros. Fishing Co. Ltd. in the nominal sum of $500 to be paid within 30 days.
(PROCEEDINGS ADJOURNED AT 12:30 P.M.)
FEDERAL COURT TRIAL DIVISION NAMES OF COUNSEL AND SOLICITORS OF RECORD
HEARING DATED: February 23, 1998
COURT NO.: T-192-98
STYLE OF CAUSE: RADIL BROS. FISHING CO. LTD. v.
HMQ et al.
PLACE OF HEARING: Vancouver, BC
REASONS FOR ORDER OF CAMPBELL, J. dated February 25, 1998
APPEARANCES:
Mr. R. Pollard for Applicant
Mr. David Brown for Respondent Titan Fishing Ltd.
Mr. Paul Partridge for Respondent HMQ
Mr. Murray Blok for Respondent B.C. Packers
SOLICITORS OF RECORD:
Richard Buell Sutton
Vancouver, BC for Applicant
Edwards Kenny
Vancouver, BC for Respondent Titan Fishing Ltd.
George Thomson for Respondent HMQ Deputy Attorney General
of Canada
S
Russell & DuMoulin `
Vancouver, BC for Respondent B.C. Packers