Date: 20040930
Docket: T-1732-04
Citation: 2004 FC 1347
Ottawa, Ontario, the 30th day of September 2004
Present: The Honourable Mr. Justice Harrington
BETWEEN:
RECHERCHES MARINES INC., a commercial enterprise duly incorporated
in accordance with the laws of the province of New Brunswick
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] Recherches Marines Inc. is a commercial enterprise managed by fishermen in the Acadian Peninsula and the Gaspé Peninsula. Its purpose is to examine marine resources for commercial exploitation.
[2] On August 12, 2004, it sent an application to the Minister of Fisheries and Oceans for a fishing permit for scientific purposes in accordance with the provisions of section 52 of the Fishing Regulations adopted pursuant to the Fisheries Act, R.S.C. 1985, c. F-14.
[3] Recherches Marines Inc. expected a decision within a short period of a few days, or at the most a few weeks. To date no decision has been made. With a view to compelling the Minister to make a decision, Recherches Marines Inc. filed an application for judicial review seeking a writ of mandamus directing the Minister to make a decision, and at the same time submitted a motion that the case be a specially managed proceeding, to obtain directions and arrive at a solution as quickly as possible.
[4] The motion at bar was heard on an urgent basis. Consequently, neither the parties to the application nor the Court were able to consider the situation in any great depth. I therefore conclude that the motion for the application to continue as a specially managed proceeding was made prematurely and it is dismissed.
[5] Section 7 of the Fisheries Act states:
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...the Minister may, in his absolute discretion,...issue or authorize to be issued leases and licences for fisheries or fishing... |
...le ministre peut, à discrétion, octroyer des baux et permis de pêche... |
[6] The English version provides that the Minister has "absolute discretion". Counsel for the Minister admitted that she had not had time to do the necessary research regarding the said section and its application in the case at bar. It seems worth noting that even in the event that the Minister's discretion is applicable, it cannot be based on erroneous or superfluous grounds (Roncarelli v. Duplessis, [1959] S.C.R. 121). The record as it stands contains two letters from Charles Gaudet, director, administrative systems and strategic planning, Fisheries and Oceans Canada, Gulf Region. The second letter, dated September 17, 2004, contains a request for additional information. In the circumstances, the information requested by the Minister appears to be reasonable.
[7] During the hearing yesterday, counsel for the applicant informed the Court that there was no further information in her possession that she could offer it. The applicant also emphasized the irreparable harm to which it would be subject if it did not have a decision very soon. It has to carry out its research before the end of the year.
[8] Although the applicant is in a difficult position, as indicated by the Court of Appeal, use of mandamus can be made to compel the performance of a public duty, but cannot dictate the result to be attained (Hahlon v. Canada (Minister of Employment and Immigration), [1986] 3 F.C. 386; see also Caissie, et al. v. The Minister of Fisheries and Oceans, 2001 FCT 379, Blanchard J.).
[9] If the Minister were compelled to make a decision immediately and refused to grant a permit on the ground that he did not have enough information, it would still not be possible to hear an application for judicial review for at least a month. Even if the case were made a specially managed proceeding, in view of the need to certify the record, file affidavits and possibly cross-examine the deponents thereto, it is highly likely that it would not be heard within a time that would be suitable to the applicant. Consequently, there is no reason to designate the proceeding a specially managed proceeding.
[10] The fact remains that the Minister has been informed that he will receive no new information enabling him either to agree or refuse to grant the permit speedily. Consequently, if no decision has been given to the applicant on October 8, 2004, it will be open to the applicant to make a motion for mandamus. The reasons at bar should not be interpreted as a direction to the Minister requiring him to make a decision before that date. However, a review cannot continue indefinitely (Conille v. Canada (Minister of Citizenship and Immigration), [1999] 2 F.C. 33, Tremblay-Lamer J.).
ORDER
The motion is dismissed, with costs in the cause.
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"Sean Harrington"
Judge |
Certified true translation
Jacques Deschênes, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-1732-04
STYLE OF CAUSE: RECHERCHES MARINES INC., a private corporation duly incorporated in accordance with the laws of the province of New Brunswick
AND
ATTORNEY GENERAL OF CANADA
HEARD BY TELECONFERENCING CALL BETWEEN OTTAWA, ONTARIO, MONCTON, NEW BRUNSWICK AND HALIFAX, NOVA SCOTIA
DATE OF HEARING: SEPTEMBER 29, 2004
REASONS FOR ORDER AND ORDER BY: HARRINGTON J.
DATED: SEPTEMBER 29, 2004
APPEARANCES:
Brigitte Sivret FOR THE APPLICANT
Dominique Gallant FOR THE RESPONDENT
SOLICITORS OF RECORD:
McInnes, Cooper FOR THE APPLICANT
Moncton, New Brunswick
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Halifax, Nova Scotia