R. v. Inshore Fishermen's Bona Fide Defence Fund

R. v. Inshore Fishermen's Bona Fide Defence Fund Court Court of Appeal Date 1994-07-19 Citation 1994 NSCA 132 Docket CA 101173 Judge/Registrar/Adjudicator Hallett, J. Doane (Honourable Justice) (CA); Pugsley, Ronald N. (Honourable Justice); Roscoe, Elizabeth A. (Honourable Justice) (CA) Document Type Decision Decision Content C.A. No. 101173 NOVA SCOTIA COURT OF APPEAL Hallett, Roscoe and Pugsley, JJ.A. Cite as: R. v. Inshore Fishermen’s Bona Fide Defence Fund Association, 1994 NSCA 132 BETWEEN: INSHORE FISHERMEN'S BONAFIDE ) A. William Moreira and DEFENSE FUND ASSOCIATION, a body ) Daniel Pust for the Appellant corporate, on its own behalf and on behalf ) of Inshore Fishermen resident in the Provinces ) Michael F. Donovan of Nova Scotia, New Brunswick,Prince Edward ) for the Respondent Island, Quebec and Newfoundland ) ) Appellant ) ) Appeal Heard: - and - ) June 24, 1994 ) HER MAJESTY THE QUEEN IN RIGHT ) Judgment Delivered: CANADA, represented in this respect by ) July 19, 1994 Her Attorney-General for Canada ) ) Respondent ) ) ) ) ) THE COURT: Appeal dismissed per reasons for judgment of Hallett, J.A.; Roscoe and Pugsley, JJ.A. concurring. HALLETT, J.A. This is an appeal from Justice Nunn's decision granting the application of the Attorney-General of Canada to strike the appellant's statement of claim pursuant to Civil Procedure Rule 14.25 on the ground that the appellant did not satisfy the criteria for granting of public interest standing. Nor did the appellant meet the requirements to bring a representative action on behalf of the inshore fishermen in the four Atlantic Provinces and Quebec. On April 5th, 1993, the appellant was incorporated under the Societies Act, R.S.N.S. 1985, Chapter 435. There are some 700-800 members of the Association, most of whom are commercial inshore fishermen in Nova Scotia; there are a few dozen from Prince Edward Island. The appellant does not have any members in Newfoundland or Quebec and has one member from New Brunswick. The appellant was conceived and created by a group of fishermen in Pictou and Antigonish Counties in Nova Scotia for the purpose of opposing certain licensing changes and new regulatory initiatives announced by the Minister of Fisheries and Oceans on December 18th, 1992. Counsel for the respondent advised us that there were 29,000 inshore fishermen in the Gulf and Scotia Fundy Regions alone and that these areas do not include the Quebec and Newfoundland Regions. He estimates that the total number of inshore fishermen the appellant purports to represent would be in the order of 50,000. By interlocutory notice returnable January 19th, 1994, the Respondent sought an order striking out the whole, or alternatively certain portions, of the Appellant's Statement of Claim on grounds that the Appellant lacked standing to bring the action. The respondent also contended that no cause of action was disclosed and that the Supreme Court of Nova Scotia lacks jurisdiction over portions of the action by reason of Section 18(1) of the Federal Court Act. As an alternative, further particulars were sought of some of the Appellant's allegations. Only the portion of the Application which related to the Appellant's standing was heard; it was determined by Justice Nunn that the Appellant should be refused standing to proceed with its action. The action was dismissed on that basis. It is from that decision that this appeal is taken. Counsel for the appellant submits that: " the principal issue is whether the learned Chambers Judge proceeded on the basis of erroneous principles, or whether a patent injustice results from his decision. In narrower terms, however, it is submitted that several specific issues arise which may be summarized here, and also that it is necessary to consider each of these issues with reference to each of the six discrete claims which are contained in the Appellant's Statement of Claim. The particular issues may be summarized: (a) Whether the Appellant has demonstrated that it meets the criteria for standing to bring litigation in the public interest; (b) If so, whether the learned Chambers Judge correctly exercised his discretion in denying such standing to the Appellant; and (c) In the alternative, whether the Appellant has demonstrated that its claim is appropriate for prosecution by way of a representative action, pursuant to Civil Procedure Rule 5.09." Counsel for the appellant also asserts that the learned trial judge erred in that he did not deal with each claim separately but simply made a general finding. The amended statement of claim set out six claims which I would briefly summarize as follows: Part I of the statement of claim alleges that the respondents (the Minister of Fisheries and Oceans and his Department) mismanaged the fishery from 1979 to 1993 as a consequence of which the inshore fishermen suffered damages. The appellant seeks relief by way of a declaratory judgment that the decline of the fishery resource was caused by the negligence of the respondents and claims general damages for income lost by inshore fishermen including both losses to date of judgment and losses projected for five years in the future. The appellant also seeks an order that the Minister establish a fund in the amount of such losses against which individual inshore fishermen could claim payment "on proof of the proportion which their individual historic landings bears the aggregate of all inshore fishermen's landings in the period 1979 to 1993 on the basis of which the general damage award" would be calculated by the court. Part II of the amended statement of claim asserts that in the allocation of Total Allowable Catch (TAC) between the offshore fishery and the inshore fishery the latter was discriminated against in a manner that infringed the inshore fishermen's s. 15 Charter right. With respect to the claim in Part II the appellant claims the following relief: (a) Declaratory Judgment to the effect that the allocation of TACs to Inshore Fishermen in the period following April 17, 1985 has violated Subsection 15(1) of the Canadian Charter of Rights and Freedoms; (b) A mandatory order requiring that the Defendant make future allocations of TACs to Inshore Fishermen in a manner or in manners which does not or do not violate Subsection 15(1) of the Canadian Charter of Rights and Freedoms; (c) As general damages, an Order that the defendant establish a fund similar in nature to (but in addition to) that claimed in Clause 12(b) above, for the benefit of those Inshore Fishermen who have suffered loss of income through discriminatory allocations of TACs in the period between April 17, 1985 and date of judgment herein; and (d) Pursuant to subsection 24(1) of the Canadian Charter of Rights and Freedoms, such further or other remedy as to this Honourable Court shall seem just and appropriate in the circumstances. Part III of the amended statement of claim deals with "unlawful policy initiatives" and is divided into four parts. Part III(A) alleges that the Minister issued limited entry fishing licenses to aboriginals contrary to the policies established by the Minister. The appellant seeks a declaration that these licenses are null and void and an order that the Minister revoke the licenses. Part III(B) asserts that the Minister infringed the s. 7 Charter right of some 4,000 fishermen whose inshore licenses he refused to reissue in 1993. With respect to this claim it is also asserted that the Minister breached the stated policies of the Department and breached the reasonable expectation of these fishermen without giving them an opportunity to be heard contrary to the principles of natural justice. The Appellant seeks the issuance of licenses to these fishermen as well as damages. In Part III(C) the appellant alleges that the policy that will allow Regional Directors'-General to impose licensing sanctions against fishermen violates ss. 7 and 11(d) of the Charter. In Part III(D) the appellant claims that a proposal by the Minister of Fisheries and Oceans as embodied in House of Commons Bill C-129 to create an Atlantic Coast Fisheries Board to have exclusive authority to issue licenses, to allocate TACs and function as a Fisheries Court is unlawful in that it will offend the fishermen's ss. 7 and 11(d) Charter rights and Clause 2(e) of the Canadian Bill of Rights. The appellant seeks a declaration that: (i) the creation of the Board constitutes an unlawful abdication of constitutional responsibility; (ii) the Board will be compelled to function in manners which will offend the requirements of fundamental justice and of natural justice; and (iii) the "judicial" functions of the Board will offend the provisions of Clause 11(d) of the Canadian Charter of Rights and Freedoms Counsel for the respondent submits that the fundamental issue on the appeal is whether or not the learned chambers judge erred in law in dismissing the appellant's action and more particular whether the appellant satisfied the criteria for public interest standing or to bring a representative action under Rule 5.09. THE LAW The law relevant to the issues raised in this appeal is fortunately straightforward. It is undisputed that the nature of the order to strike the statement of claim involves the exercise of discretion. In Hi-Fi Novelty Co. v. Nova Scotia (Attorney General) (1994), 126 N.S.R. (2d) 70 (C.A.) an appeal involving public interest standing Mr. Justice Chipman stated the familiar principles at p. 73 as follows: This court has said on several occasions that it will not interfere with a discretionary order, particularly an interlocutory one such as this, unless wrong principles of law have been applied or a patent injustice would result. Simply because we may possibly have reached a decision contrary to that of the judge on the facts is not sufficient. The burden on the appellant is heavy. See Nova Scotia (Minister of Housing) v. Langille and Roberts (1992), 108 N.S.R. (2d) 348; 294 A.P.R. 348 (C.A.) and Minkoff v. Poole and Lambert (1991), 101 N.S.R. (2d) 143; 275 A.P.R. 143 (C.A.) and the cases cited therein. The principles with respect to the granting of public interest standing have been developed by the Supreme Court of Canada in a series of decisions culminating with the opinion of Corey J. in Canadian Council of Churches v. Canada et al (1992), 132 N.R. 241 (S.C.C.). These principles are as follows: (1) Persons or organizations seeking public interest standing must prove (a) that the claim raises justiciable issues and in particular that there is a serious issue as to the validity of legislation or the validity of a public act exercised by a statutory authority, the latter because the public has an interest in ensuring that public officials act in accordance with statutory authority (Canadian Council of Churches paras. 29 & 33); (b) that the challenger is affected directly or has a genuine interest in the validity of the legislation or the public act in issue; and (c) that there is no other reasonable or effective manner in which the issue may be brought before the court.(Canadian Council of Churches para 30). (2) The discretion will be exercised to grant public interest standing in those situations where it is necessary to ensure that legislation or public acts in question conforms to the Constitution and the Charter. (Canadian Council of Churches, para 32). (3) In determining if public interest standing should be granted the court must have concern for the proper allocation of judicial resources and the principles for granting standing should not be expanded. Corey J. in the Canadian Council of Churches summed up the concern in paras. 35-36 where he stated: The increasing recognition of the importance of public rights in our society confirms the need to extend the right to standing from the private law tradition which limited party status to those who possessed a private interest. In addition some extension of standing beyond the traditional parties accords with the provisions of the Constitution Act, 1982. However, I would stress that the recognition of the need to grant public interest standing in some circumstances does not amount to a blanket approval to grant standing to all who wish to litigate an issue. It is essential that a balance be struck between ensuring access to the courts and preserving judicial resources. It would be disastrous if the courts were allowed to become hopelessly overburdened as a result of the unnecessary proliferation of marginal or redundant suits brought by a well-meaning organizations pursuing their own particular cases certain in the knowledge that their cause is all important. It would be detrimental, if not devastating, to our system of justice and unfair to private litigants. The whole purpose of granting status is to prevent the immunization of legislation or public acts from any challenge. The granting of public interest standing is not required when, on a balance of probabilities, it can be shown that the measure will be subject to attack by a private litigant. The principles for granting public standing set forth by this court need not and should not be expanded. The decision whether to grant status is a discretionary one with all which that designation implies. Thus undeserving applications may be refused. Nonetheless, when exercising the discretion the applicable principles should be interpreted in a liberal and generous manner. Counsel for the appellant suggests that in paragraph 36 Justice Corey was putting a burden on those opposed to the granting of public interest standing to show that the measure in question will, on a balance of probabilities, be subject to attack by private litigants. This would be in conflict with the test established in the earlier cases as set forth by the decision of Martland J. for the majority in Minister of Justice v. Borowski, [1981] 2 S.C.R. 575 where he stated at p. 598: ...to establish status as a plaintiff in a suit seeking a declaration that legislation is invalid, if there is a serious issue as to its invalidity, a person need only to show that he is affected by it directly or that he has a genuine interest as a citizen in the validity of the legislation and that there is no other reasonable and effective manner in which the issue may be brought before the court. The principles established in Thorson v. Attorney General of Canada, [1975] 1 S.C.R. 138; 1 N.R. 225; 43 D.L.R. (3d) 1, McNeil v. Nova Scotia Board of Censors, [1976] 2 S.C.R. 265; 5 N.R. 43; 12 N.S.R. (2d) 85; 6 A.P.R. 85; 55 D.L.R. (3d) 632; 32 C.R.N.S. 376, Borowski, supra, and Finlay v. Canada, [1986] 2 S.C.R. 607; 71 N.R. 338 were apparently approved by Corey J. in Canada Council of Churches; he stated the principles should not be expanded. Essentially it is a matter of argument rather than evidence whether or not there is "no other reasonable and effective manner in which the issue may be brought before the court". Nothing in this appeal turns on the burden of proof on this issue. The law respecting the right of a person or organization to bring a representative action has been enunciated by the Supreme Court of Canada in Naken et al v. General Motors of Canada Ltd. et al (1983), 144 D.L.R. (3d) 385. In that case the court was considering Ontario Rule 75 which is very similar to Nova Scotia Civil Procedure Rule 5.09(1) which provides: 5.09. (1) Where numerous persons have the same interest in a proceeding, not being a proceeding mentioned in rule 5.10, the proceeding may be begun, and, unless the court otherwise orders, continued, by or against any one or more of them as representing all or as representing all except one or more of them. In the Naken case the action had been brought by individuals claiming to represent the owners of 1971 and 1972 Firenza motor vehicles. The plaintiffs claim that General Motors made false warranties as to the durability of the cars and they sought damages of $1,000 for each member of the class. The Supreme Court of Canada held that this was not a proper case for representative action. In reaching this conclusion the court stated that such actions are proper where there was a fund or common asset of finite proportions that could be determined without a series of individual damage or other assessment procedures. The court made the point that one of the factors which will tell against the right to bring a representative action is if the damages to the members of the class have to be separately assessed (p. 394). Furthermore, in a class action the defendant is deprived of individual discoveries and in the event of success would have recourse for costs only against the main plaintiff even though the costs to the defendant were increased by reason of the multiple claims. It was further held in Naken (p. 396) that representative action should be refused in situations where separate defences are available against some members of the class and not others. The court concluded its decision in Naken by characterizing the Civil Procedure Rule in issue as "simple but entirely inadequate to the task which the respondents have brought before the court in reliance on the rule". (p. 400) In Guarantee Co. v. Caisse Populaire de Shippagan et al (1988), 86 N.B.R. (2d) 342, 349 the New Brunswick Court of Queen's Bench interpreted the Naken case and concluded that the following requirements would have to be met before representative action would be brought: 1. The class must be properly defined. 2. All members must have a common interest. 3. There must be a wrong common to all. 4. Damages suffered must be the same to all except in amount. 5. The relief sought must be beneficial to all. 6. None of the members of the class may have an interest antagonistic to the other members. 7. There must be created in the course of the action or as a result thereof a fund or a pool of assets which is isolated and subject to pro rata distribution should the need arise. Disposition of the Appeal I will first deal with the issue of public interest standing. Applying the tests to which I have referred I am of the opinion that each of the appellants' claims fails one or more of the established criteria to be applied in determining if public interest standing should be granted. The claim for damages in Part I of the amended statement of claim alleging negligent mismanagement of the fishery is not an appropriate claim in which to grant public standing. The appellant has more or less conceded this issue but argues that the court should nevertheless issue a declaratory judgment that the fishery has been mismanaged if that has been proven. In my opinion the complexity of this issue and the time it would take to try is such that limited judicial resources should not be consumed for the purpose of granting a declaratory judgment of this nature when nothing would be accomplished by the granting of such a judgment without a damage award. Mr. Justice's Nunn's discretion should not be interfered with on this issue. The claim in Part II likewise would require an extraordinarily time consuming review of evidence relating to the allocation of catch per species over a 14 year period in all the Districts. Furthermore, this was a matter of government policy. Also, on its face, allocation of catch does not constitute a ground of discrimination within the meaning of s. 15 of the Charter. This latter issue was not before Nunn J. and therefore not before this Court but it is a relevant consideration in attempting to balance the right of a litigant to have access to the courts with the preservation of judicial resources. There can be no question that to allow the appellant to proceed with this claim on the basis of public interest would be to tilt the scale to such an extent that it could not be justified. One cannot say that Justice Nunn erred in the exercise of his discretion in striking this aspect of the appellant's claim. With respect to the claim in Part III(A), the issuance of limited entry licenses to aboriginals to enter the crab fishery, that issue can be more reasonably and effectively addressed by a test case challenging such a license held by an aboriginal. There is no necessity to grant public interest standing on this issue. Furthermore, to proceed with this claim which, if the remedy sought were granted, would result in the license of these fishermen being declared null and void without the holders of those licenses being represented in the proceedings. In short, there is a more reasonable and effective manner in which to bring the issue before the court. With respect to the claim in Part III(B) that the refusal by the Minister to reissue some 4,000 ground fish licences was unlawful and that the 4,000 fishermen be awarded damages is not a public interest issue. This matter could be brought before the courts by an individual fisherman who could sue the Minister for the refusal to reissue his license. Such a test case could be funded by the appellant organization. In that proceeding the concerns of the appellant and its allegations (i) that the refusal to reissue the licenses breached the policies of the Minister; (ii) that the Minister's discretion under s. 7 of the Fisheries Act, although stated to be absolute has been exhausted by the issuance of the Policies; and (iii) that fishermen with licenses enjoy a form of vesting of the license and have a legitimate expectation that the license will be renewed all can be canvassed as well as the issues as to whether or not the failure to renew the licenses is a breach of s. 7 of the Charter or s. 2(e) of the Bill of Rights. I do not agree with appellant's counsel that the vested rights issue requires immediate judicial determination. There is case law on the subject although it is contrary to the position argued by the appellant. An individual action is a more reasonable and effective way to deal with these issues than by a grant of public interest standing to the appellant. If such an alternative proceeding were successful damages suffered by that fisherman could be fixed which would presumably lay the ground work for the settlement of the other claims. The claim in Part III(C), that the administrative imposition of license sanctions by the Regional Directors' General of the Department of Fisheries & Oceans violates ss. 7 and 11(d) of the Charter, is an issue that can be more reasonably and effectively raised in a prosecution of a fisherman charged with a violation pursuant to the new procedure. Therefore, this part of the claim fails to meet the requirement that there is no other reasonable and effective manner to deal with the issue; public interest standing should not be granted with respect to this claim. The claim in Part III(D) is moot as Bill C-129 died on the order paper when Parliament was dissolved on September 8, 1993. As noted by counsel for the appellant this issue was not before Mr. Justice Nunn on the hearing and he did not making a finding on the issue. I would gather the issue is still alive. However, it would seem to me that representation on this issue should be made to the appropriate committee of the House of Commons if, as and when a Bill similar to C-129 intending to create a Board with the powers that were proposed in Bill C-129 is introduced. It is not in any way a proper use of judicial resources to have this hypothetical matter determined by the Supreme Court of Nova Scotia. I will now deal with the question of whether the claims raised by the appellant are the proper subject of a representative action. With respect to the claim in Part I that the respondent mismanaged the fishery and as a result of such negligence inshore fishermen suffered damages, it is clear that the appellant does not have a mandate to represent the inshore fishermen in the five provinces it purports to represent. There are no members in Quebec or Newfoundland and only one in New Brunswick. Secondly, the scope of the claim in Part I is totally unmanageable particularly the matter of assessing the damages. Each case would have to be looked at individually and we are talking of some 30,000 or 50,000 fishermen. The court would have to determine with respect to each claim whether the loss, if any, was attributable to mismanagement of the fishery or to other factors. How one would measure the particular loss of any fisherman would be a matter of looking at his particular circumstance. The respondent would not have the benefit of discovery, production of documents or the other normal processes available to a defendant with respect to these thousands of claims. Furthermore, there is the issue of costs; the respondent is being asked to respond to possible claims from 30,000 to 50,000 fishermen, none of whom are a party to the proceeding. As stated by the Supreme Court of Canada in the Naken case a representative action in these circumstances is inappropriate. Counsel for the appellant has suggested that if the court is not satisfied that the appellant represents the inshore fishermen in these five provinces the court should determine what group it is representative of for the purpose of this proceeding. In my opinion the chambers judge did not have any obligation to undertake this function and his decision not to do so should not be interfered with by this court. With respect to the appellant's claim in Part II, it suffers from the same problems related to its claim put forward in Part I. With respect to the claims in Part III(A) and (B) it is quite clear that there are antagonists within the group the appellant purports to represent, in particular, the 4,000 fishermen whose licenses were cancelled do not have the same interest as those whose groundfish licenses were not cancelled. Inshore fishermen who obtained crab licenses do not have the same interest as those who do not have them or were not given an opportunity to obtain one. The claims in Part (C) and (D) are not appropriate for a class action as there are no damages being sought. There is not any question in my mind that the claims as put forward do not meet the requirements for granting of public standing. Nor does the appellant meet the criteria to bring a representative action on behalf of the inshore fishermen the appellant purports to represent. Not only am I of the opinion that the exercise of discretion by the chambers judge should not be interfered with by this court because he made no error in law nor will a patent injustice result if we do not interfere I am of the view he was correct. The application should be dismissed with costs to the respondent in the amount of $3,000 plus disbursements. Hallett, J.A. Concurred in: Roscoe, J.A. Pugsley, J.A. C.A. No. 101173 NOVA SCOTIA COURT OF APPEAL BETWEEN: INSHORE FISHERMEN'S BONAFIDE ) DEFENSE FUND ASSOCIATION, a body ) corporate, on its own behalf and on behalf ) of Inshore Fishermen resident in the Provinces ) of Nova Scotia, New Brunswick,Prince Edward ) Island, Quebec and Newfoundland ) ) Appellant ) ) REASONS FOR - and - ) JUDGMENT BY: ) HER MAJESTY THE QUEEN IN RIGHT ) HALLETT, J.A. CANADA, represented in this respect by ) Her Attorney-General for Canada ) ) Respondent ) ) ) ) )