Mombourquette v. Canada (Attorney General)

Mombourquette v. Canada (Attorney General) Court (s) Database Federal Court Decisions Date 2024-12-23 Neutral citation 2024 FC 2093 File numbers T-2356-22 Decision Content Date: 20241223 Docket: T-2356-22 Citation: 2024 FC 2093 Ottawa, Ontario, December 23, 2024 PRESENT: The Honourable Mr. Justice Southcott BETWEEN: john mombourquette Applicant and

ATTORNEY GENERAL OF CANADA Respondent

JUDGMENT AND REASONS Overview [1] In this application, the Applicant seeks judicial review of a decision made by the acting Deputy Minister [DM] of Fisheries and Oceans Canada [DFO], dated October 17, 2022 [the Decision]. In the Decision, the DM denied the Applicant’s request for ongoing authorization to use a medical substitute operator in connection with an inshore lobster fishing licence. [2] As explained in further detail below, this application will be allowed, because the DM erred by incorrectly concluding that the Applicant’s equality rights under subsection 15(1) of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter], as a person with a disability, were not engaged by the Decision. This error also lead to the DM conducting an unreasonable balancing of the Applicant’s rights against relevant regulatory and policy objectives. The Decision will therefore be set aside and the matter remitted to the DM for redetermination. As it is therefore unnecessary for the Court to consider the Applicant’s argument that relevant regulatory provisions underlying the Decision are constitutionally invalid, and as the Applicant did not raise that argument before the DM, the Court declines to address that argument. II. Background [3] The Applicant, Mr. John Mombourquette, is 79 years old and has

been a fisherman almost all of his working life. Since 1993, the Applicant has been issued an inshore fishing licence (#111129) to fish lobster in Lobster Fishing Area 29 in eastern Nova Scotia [the Licence]. [4] Subsection 19(2) of the Atlantic Fishery Regulations, 1985 SOR/86-21 [Atlantic Regulations], made under the Fisheries Act, RSC 1985, c F-14 [Fisheries Act], requires that the activities authorized under certain categories of inshore fishing licences be carried out either by the Applicant personally or by a person authorized in accordance with subsection 23(2) of the Fishery (General) Regulations, SOR/93-53 [General Regulations]. This requirement applies to the Licence. While subsection 19(2) of the Atlantic Regulations came into force only on April 1, 2021, the general requirement that inshore fishing licences be personally fished by the licence holders has for a longer period been captured in subsection 11(7) of DFO’s Commercial Fisheries Licencing Policy for Eastern Canada [the Policy]. [5] Subsection 23(2) of the General Regulations provides a possible exception to this requirement for licence holders who, due to circumstances beyond their control, are unable to fish their licence personally. Under subsection 23(2), DFO may authorize another person to carry out the activity under the licence, in which case the licence holder may designate a substitute operator to

fish their licence on their behalf. [6] Where the circumstance preventing the licence holder from fishing their licence personally is an illness that prevents the licence holder from operating a fishing vessel, the permission that DFO may provide under subsection 23(2) of the General Regulations is commonly referred to as an authorization for designation of a medical substitute operator [MSO]. Subsection 11(11) of the Policy states that the designation of an MSO may not exceed a total period of five years. However, this limit being a matter of policy rather than regulation, DFO has the discretion to depart from the limit and will do so in what it considers to represent extenuating circumstances. [7] In Robinson v Canada (Attorney General), 2020 FC 942 [Robinson FC], affirmed in Canada (Attorney General) v Robinson, 2022 FCA 59 [Robinson FCA], this Court summarized at paragraphs 17 to 19 the policy and history underlying these regulatory and policy provisions, which background I do not understand to be the subject of any controversy between the parties. Due to increased participation in the Canadian fishery in the late 1970s, concern developed about control by fish processing companies of the inshore harvesting sector, which could lead to fewer independent licence holders and decreased benefit from the fisheries resource for local communities. To address this concern, DFO

introduced what is termed the “fleet separation policy”, which separated the interests of the harvesting sector from those of the processing sector. DFO stopped issuing new licences for fisheries in the inshore fleet to processing corporations in order to promote the control of fishing licences in the inshore fleet by those residing in and operating out of local coastal communities. These policy elements are incorporated in the Policy. [8] Similar objectives are pursued through what is termed the “owner-operator policy”. The owner-operator policy was formally adopted in 1989 across the entire Eastern Canada inshore fleet, and its key elements were ultimately incorporated into the Policy. Its goal is to maintain an economically viable inshore fleet by keeping the control of licences in the hands of independent owner-operators in small coastal communities, and to allow them to make decisions about the licences issued to them. To achieve this, the owner-operator policy requires licence holders to personally fish licences issued in their name. This means that the licence holder is required to be on board the vessel authorized to fish the licence. [9] The Applicant fished the Licence personally, until medical conditions prevented him from doing so. The details of his medical conditions and their effect upon his ability to fish the Licence personally are not at issue in this

application. [10] In 2011, the Applicant requested and received authorization to designate an MSO in relation to the Licence. In 2016, DFO informed the Applicant that he had reached the five-year limit on MSO use. The Applicant appealed to the Maritimes Region Licensing Appeal Committee [MRLAC], and on December 20, 2017, the Regional Director General, Maritimes Region [the Regional Director] granted the Applicant an authorization to use an MSO for an additional two years. By letter dated April 9, 2019, DFO approved the Applicant’s request for an MSO to June 30, 2019, but (invoking the five-year limit set out in the 1996 version of the Policy) put the Applicant on notice that further requests for a MSO would not be approved. [11] The Applicant appealed the 2017 decision of the Regional Director to the MRLAC. By letter dated April 17, 2020, the Regional Director denied the Applicant’s appeal. The Applicant appealed the Regional Director’s decision to the Atlantic Fisheries Licence Appeal Board [AFLAB], which resulted in the DM making the Decision at issue in this application for judicial review. [12] In the various administrative processes leading to the Decision, the Applicant advanced the position that, despite his disability, he remains actively engaged in the lobster fishery. Documentation generated in the course of those processes provided detail related to that position. In

his affidavit sworn in support of this application for judicial review [the Affidavit], the Applicant summarizes his role. The Applicant employs crewmembers to operate his vessel and states that he maintains full care and control of the Licence. He asserts that he is responsible for hiring and managing the crewmembers on the vessel, pays their wages, and makes the operational decisions regarding the vessel, including decisions relating to storage, repairs, and gear. The Applicant also asserts he is financially dependent on the Licence. [13] While the Affidavit was not itself before the DM when making the Decision, I do not understand the Respondent to dispute that such assertions were advanced before the decision-maker (and, indeed, before previous decision-makers in the administrative processes that preceded the Decision). [14] On October 17, 2022, the DM made the Decision (summarized below) that is the subject of this application for judicial review. The Court heard this application on October 1, 2024, together with an application in Court File No. T-263-23. In T-263-23, the applicant, Mr. Dana Robinson, also challenges a decision to deny him an MSO authorization beyond the five-year limit set out in the Policy. That decision is a redetermination of an earlier decision, which was the subject of a successful application for judicial review in Robinson FC. The same counsel

represents the applicants in both matters and advances largely identical arguments in the two proceedings. [15] I understand from the Respondent’s counsel’s submissions at the hearing of this application that an MSO remains in place for the Applicant pending the outcome of this litigation. III. Decision under Review [16] In the October 17, 2022 letter conveying the Decision [the Decision Letter], the DM denied the Applicant’s request for a further exception to the five-year limit on MSOs. The DM referred to having arrived at this conclusion upon review of background material including the recommendation of the AFLAB and the Applicant’s allegations of discrimination under subsection 15(1) of the Charter. [17] The DM agreed with the AFLAB’s finding that the Applicant was treated fairly and in accordance with departmental licensing policies, practices, and procedures. The DM also found that the exit strategy presented by the Applicant to the AFLAB was not substantial enough to justify an exception to the Policy. That exit strategy was that the Applicant’s grandson would potentially become eligible to be issued an inshore licence in the future. [18] With respect to the Applicant’s Charter submissions, the DM found that subsection 15(1) of the Charter was not engaged by the Decision. The DM found no indication the Applicant would ever be able to carry out commercial fishing

activities personally. As such, the DM found the Applicant was seeking to collect revenues from a licence to fish for an indefinite period of time without fishing, which the DM described as retirement-like benefits that were not available at law under the Fisheries Act. Further, even if it could be considered that the Decision made a distinction based on the Applicant’s age or physical disability, the DM concluded that this would not be a discriminatory distinction, as it would merely reflect the reality that the Applicant’s advanced age and the natural physical effects of his aging are inconsistent with ongoing employment in commercial fishing. [19] The DM further found that the Applicant’s request for further MSO authorization was inconsistent with DFO’s underlying policy objectives for fisheries management. [20] The DM also stated that the current fisheries management regime accommodated the Applicant, in that he could continue to seek renewal of the licences issued to him on a yearly basis (subject to fishery closures) and therefore could recommend to the Minister of Fisheries, Oceans and the Canadian Coast Guard [the Minister] an eligible fisher to which the Minister would issue a replacement licence. This would provide the Applicant with access to financial capital through a private commercial transaction. [21] The parties disagree on whether an understanding of the

reasons for the Decision may also be informed by a review of other documentation, generated by DFO in the course of the process leading to the Decision, as found in the Certified Tribunal Record [CTR] in this matter. These documents include a departmental “Memorandum for the Deputy Minister” dated October 17, 2022 [the Memorandum] and a supporting “Departmental Analysis and Rationale” [the Rationale]. I will reference these documents in more detail later in these Reasons when addressing the parties’ dispute as to their relevance. IV. Issues [22] The parties’ submissions in this application raise the following issues for the Court’s determination: What is the applicable standard of review? Is the Decision correct or reasonable (depending on the standard of review selected)? Are subsections 18(a) and 19(2) of the Atlantic Regulations constitutionally invalid because they violate subsection 15(1) of the Charter? If applicable, what remedies should the Court impose? V. Analysis A. What is the applicable standard of review? (1) Introduction [23] The parties disagree on the standard of review that the Court should apply in its consideration of the Decision. Relying on evolving jurisprudence on the standard of review applicable to administrative decision-making in the context of asserted Charter rights, the Applicant takes the position that the Decision is reviewable on the

correctness standard, while the Respondent (the Attorney General of Canada) argues that the standard of reasonableness applies. (2) Federal Courts jurisprudence [24] Before turning to a broader review of applicable jurisprudence, I note that the standard of review was also the subject of disagreement between the parties in Robinson FC. The respondent in Robinson FC relied on Doré v Barreau du Québec, 2012 SCC 12 [Doré], in which the Supreme Court of Canada [SCC] drew a distinction between circumstances where a reviewing court is considering an administrative tribunal’s determination of the constitutionality of a law, in which case the standard of review is correctness (Doré at para 43), and circumstances where the court is considering whether a tribunal has taken sufficient account of Charter values in making a decision, in which case the standard of reasonableness applies (Doré at paras 43-58). [25] In circumstances of the latter sort, the decision-maker must conduct a proportionality exercise by considering how the Charter value at issue will best be protected in view of the statutory objectives, balancing the severity of the interference with the Charter protection against the statutory objectives. A reviewing court must in turn consider the reasonableness of this balancing (Doré at paras 56-58). In Robinson FC, the respondent argued that the applicant’s challenge of the

decision then under review fell into that category, requiring a reasonableness review (Robinson FC at para 38). The respondent also noted that, in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov], which confirmed the presumption in favour of the reasonableness standard when reviewing administrative decisions (Vavilov at para 16), the SCC expressly stated that reconsideration of the approach to the standard of review set out in Doré was not germane to the issues before it (Vavilov at para 57). [26] In contrast, the applicant argued in Robinson FC that there was a role for the correctness standard in the Court’s review of the administrative decision. He relied on Canadian Broadcasting Corporation v Ferrier, 2019 ONCA 1025 [Ferrier], in which the Court of Appeal for Ontario [ONCA] considered Doré and Vavilov in concluding that, in circumstances involving refusal or failure by an administrative decision-maker to consider an applicable Charter right, correctness applies. The ONCA contrasted such circumstances with those in which an administrative decision-maker considered applicable Charter rights and how those rights affected the required discretionary decision (as was the case in Doré), where the standard of reasonableness would ordinarily apply (Ferrier at paras 34-38). [27] The issue in Ferrier was whether the Thunder Bay Police Services Board

[the Board] failed to respect the s 2(b) Charter right to freedom of expression by failing to require an open hearing in considering a complaint of police misconduct. The ONCA allowed the appeal and set aside the Board’s decision, on the basis that it had failed to consider recent jurisprudence confirming that s 2(b) of the Charter protects the right of members of the public to attend meetings of police service boards. Reviewing the issue on the correctness standard, the ONCA confirmed that this Charter right did apply (Ferrier at paras 53-59). [28] In its elaboration upon Doré in Loyola High School v Québec (Attorney General), 2015 SCC 12 [Loyola] at paragraph 49, the SCC explained that, before turning to the proportionate balancing exercise required by Doré, a preliminary question arises as to whether the administrative decision under review engages the Charter by limiting its protections (Loyola at para 39). In Robinson FC at paragraph 42, this Court accepted that Ferrier supported the applicant’s position that the answer to that preliminary question of whether a Charter right has bearing on an administrative decision is governed by the correctness standard. However, Robinson FC further explained at paragraphs 42 to 43 that, consistent with the analysis in Ferrier at paragraph 60, an administrative decision that fails without explanation to consider an applicable Charter

right would also be unable to withstand reasonableness review. [29] In the result, Robinson FC found, applying the correctness standard, that the decision under review in that matter engaged the applicant’s subsection 15(1) rights of a person with a physical disability (at para 56). Robinson FC concluded, again applying the correctness standard, that the decision-maker did not consider those rights (at paras 70-71). Employing the alternative standard of review analysis articulated in Ferrier, this Court further concluded that, even if a reasonableness standard applied, the decision could not be considered reasonable because of its failure to consider applicable Charter rights (at paras 70-71). [30] On appeal, the respondent argued that Robinson FC erred in relying on Ferrier in assessing against a correctness standard the question whether the administrative decision engaged subsection 15(1) protections. The respondent took the position that the presumptive standard of reasonableness should be applied to both the first question under the Doré/Loyola framework, determining whether a Charter protection was engaged, and the second question, the balancing of the Charter protection against the government’s policy objectives (see Robinson FCA at paras 18, 24). [31] The Federal Court of Appeal [FCA] concluded at paragraphs 27 to 28 that it was sufficient for purposes of the appeal to

explain that it agreed with this Court that the Deputy Minister’s decision ought to be set aside for failing to address the key question before him. Where, as in that case, a Charter protection was squarely raised by a party, the unexplained failure to address whether the Charter was engaged could not survive reasonableness review. [32] As such, the FCA concluded that it was unnecessary to comment on this Court’s application of the test under Doré/Loyola. Similarly, the FCA concluded that whether it ought to adopt the approach of the Ontario Court of Appeal in Ferrier, holding that the first question under the Doré/Loyola analysis was to be determined on a correctness standard and the second question on a standard of reasonableness, should be decided when it must and with the benefit of full argument (Robinson FCA at para 29). [33] Following Robinson FCA, the standard of review issue was again raised in the Federal Court in Boudreau v Canada (Attorney General), 2023 FC 428 [Boudreau], in an application for judicial review of a DFO decision denying the applicant’s request for an MSO authorization beyond the five-year policy limit. As in Robinson FC and the case at hand, the applicant in Boudreau argued that the decision infringed his rights as a disabled person under section 15 of the Charter. In connection with his assertion that DFO failed to consider those rights, the

applicant relied on Ferrier in support of his position that the standard of correctness applied (see Boudreau at para 30). [34] In Boudreau, Justice Ann Marie McDonald noted that Ferrier had been applied in Robinson FC but also that Robinson FCA had held that reasonableness was the appropriate standard of review, as the decision under review failed to respond to the applicant’s argument that his Charter rights were violated (Boudreau at para 31). Referencing both Robinson FCA and Doré, Justice McDonald concluded that the applicable standard of review was reasonableness (Boudreau at para 33). Consistent with that conclusion, Boudreau commented that the role of the Court was not to conduct the section 15 analysis, including in relation to whether the Charter was engaged, but rather was to determine whether DFO had undertaken the necessary analysis (at paras 36-38). [35] That said, Boudreau then considered the respondent’s assertions that the Charter was not engaged, because the applicant was seeking a lifetime right to fish that was not available under the law, and relied on the analysis in Robinson FC (Boudreau at paras 53-57) in concluding that DFO’s policy created a prima facie distinction based on disability, such that the DFO decision under review did engage the Charter. The Court then moved to assessing whether the decision had considered the applicant’s Charter arguments

and balanced his Charter protections against DFO’s policy objectives as required by Doré. The Court concluded that DFO had not done so and that the decision was therefore unreasonable (at paras 53-58). I note that Boudreau was appealed but that the appeal was subsequently discontinued. [36] Robinson FC and Ferrier were also considered by my colleague Justice Christine Pallotta in Toth v Canada (Mental Health and Addictions), 2023 FC 1283 [Toth], which addressed an application for judicial review of ministerial decisions refusing requests for an exemption under the Controlled Drugs and Substances Act, SC 1996, c 19, to permit the applicants to possess and consume raw psilocybin mushrooms in the course of their own professional training for psilocybin-assisted psychotherapy. The applicants’ arguments included an assertion that the decision did not address arguments as to the impact that refusing an exemption would have upon their and patients’ rights under section 7 of the Charter. [37] In relation to the standard of review applicable to the Charter arguments, the Court identified the two steps of the Doré framework, examining first whether an administrative decision engaged the Charter by limiting a Charter protection and, if it did, examining second whether the decision-maker properly balanced the relevant Charter protection with the statutory objectives (Toth at para 86). The

applicants relied on Robinson FC and Ferrier in support of their position that correctness applied to the first step and reasonableness to the second step (at para 87). The respondent argued that the entire analysis should be performed under the reasonableness standard, noting that Robinson FCA declined to decide whether to adopt the Robinson FC and Ferrier approach for the first step under the Doré framework (at para 89). [38] The Court agreed with the respondent’s position, noting (at para 94) that Robinson FCA was able to dispose of the appeal before it by applying the reasonableness standard (Robinson FCA at para 28). Toth expressed concern that the adoption of a correctness standard for the first step of the Doré analysis would lead to courts retrying administrative decisions involving factual findings that are entitled to deference under the reasonableness review applicable to the second step of the analysis (at para 96). The Court then conducted the first stage of the analysis, ultimately concluding that the decision did not engage section 7 Charter rights (at paras 97-103). [39] At the hearing of the present application, the Respondent’s counsel advised the Court that Toth is under appeal. [40] Before leaving the recent jurisprudence of the Federal Courts, I note that, shortly following the release of Boudreau, the FCA considered the application of Ferrier in Canadian

Broadcasting Corporation v Canada (Parole Board), 2023 FCA 166 [Parole Board]. That decision addressed protections for freedom of the press under section 2(b) of the Charter, in the context of a decision by the Parole Board refusing to provide the Canadian Broadcasting Corporation [CBC] with a complete copy of the audio recordings of certain parole hearings. [41] On appeal from the Federal Court’s dismissal of CBC’s application for judicial review of the Parole Board’s decision, the FCA first considered the applicable standard of review. The FCA recognized at paragraph 30 the guidance in Vavilov that, while the presumptive standard of review of an administrative decision is reasonableness (Vavilov at para 10), the presumption may be rebutted in circumstances where the rule of law requires that the correctness standard be applied, such as when dealing with constitutional questions (Vavilov at para 17). The FCA further noted in paragraph 31 that not every constitutional question, including involving the Charter, required review on the correctness standard, and observed the direction in Doré (at para 36) that the application of Charter values to a particular set of facts in administrative decision-making should attract deference. [42] However, the FCA identified (Parole Board at paras 32-33) that the first issue before the Parole Board was whether the open court principle,

fortified by section 2(b) of the Charter, applied to it, and relied on the following reasoning in Ferrier (at para 37) in concluding that the correctness standard applied to that question: The issue before the decision maker was whether the Dagenais/Mentuck test had a bearing on the discretionary decision he had to make. That is not the same as the issue presented in Doré and Episcopal of how the s. 2(b) Charter right impacted or affected the discretionary decision he had to make. The decision maker did not reach the point of factoring the Dagenais/Mentuck test into his discretionary decision because he decided that it did not apply. A reasonableness standard assumes a range of possible outcomes all of which are defensible in law: see Vavilov, at para.

83. That standard is inappropriate here. The Dagenais/Mentuck test either applied or it did not. [Emphasis in original.] [43] Following the resulting analysis, conducted on a correctness basis, as to whether the open court principle applied, the FCA agreed with the Parole Board and the Federal Court that it did not (Parole Board at para 56). [44] The effect of Robinson FC, Boudreau, and Toth is that the jurisprudence of the Federal Court, on the standard of review applicable to the first step of the Doré analysis, remains unsettled. Arguably the FCA’s endorsement of Ferrier in Parole Board assists in resolving this situation. However, as both Ferrier and Parole Board involved the same Charter issue, the application of the open court principle as informed by section 2(b), caution is warranted in concluding that the analysis applied in those cases, involving adoption of the correctness standard in considering whether Charter rights are engaged, applies more broadly to judicial review of Charter-infused administrative decision-making. (3) Supreme Court of Canada jurisprudence [45] I turn next to two recent decisions of the SCC that have addressed the standard of review in the administrative law context. In Commission scolaire francophone des Territoires du Nord-Ouest v Northwest Territories (Education, Culture and Employment), 2023 SCC 31 [Commission scolaire], the SCC considered

the application of the minority language educational rights protected by section 23 of the Charter. A group of parents not holding the right guaranteed by section 23 to have their children receive instruction in one of the two official languages, where it is the minority language, applied to the relevant minister for their children’s admission to a French first language education program. The minister denied these applications, because they did not meet the conditions of an applicable ministerial directive that created categories of eligible non-rights holders. [46] The parents applied for judicial review of these decisions, arguing that they did not reflect a proportionate balancing of section 23 protections. That argument succeeded before the Supreme Court of the Northwest Territories but was rejected by the Court of Appeal, the majority of which found that the Minister was not required to consider section 23 of the Charter because the parents were not rights holders under that provision. [47] On appeal, the SCC confirmed (Commission scolaire at para 59) that it was through the lens of Doré that the ministerial decisions must be considered, involving first a determination whether the decisions engage the Charter by limiting Charter protections – both rights and values (at para 61). The Court further explained that, once the reviewing court has determined that the impugned

administrative decision infringes Charter rights or limits the values underlying them, the court must determine whether the decision is reasonable through an analysis of its proportionate balancing of Charter rights and values with the relevant statutory objectives (at paras 67, 73). The SCC ultimately found that the impugned ministerial decisions were required to take into account section 23 values (at para 83), that those decisions had the effect of limiting those values (at para 91), and that the decisions were unreasonable because they did not take those values into account (at para 92). [48] On June 21, 2024, the SCC released its decision in York Region District School Board v Elementary Teachers’ Federation of Ontario, 2024 SCC 22 [York Region], arising from a circumstance in which two teachers employed by an Ontario public school board were disciplined based on information obtained by the school principal through reviewing the teachers’ private electronic communications. The teachers’ union grieved the discipline, and a labour arbitrator dismissed the grievance. [49] On judicial review, the Ontario Superior Court of Justice (Divisional Court) upheld the reasonableness of the arbitrator’s decision, with the majority applying a reasonableness standard of review and finding that an employee does not have a right under section 8 of the Charter to be secure against

unreasonable search or seizure in a workplace environment. The ONCA allowed the union’s appeal, conducting a correctness review of the arbitrator’s decision and holding that the search was unreasonable under section 8. [50] Writing for the majority in York Region in its standard of review analysis, Justice Rowe first explained that the correctness standard applies to the determination of whether the Charter applied to school boards pursuant to subsection 32(1) of the Charter, as this was a constitutional question that required a final and determinate answer by the courts, one that will apply generally and is not dependent on the particular circumstances of the case (at para 62). [51] Referencing Vavilov, Justice Rowe then explained that the correctness standard also applied to review of the arbitrator’s decision, as a result of which the decision would be quashed because the arbitrator erred in failing to appreciate that a Charter right arose from the facts before her. Justice Rowe held that the issue of constitutionality on judicial review – of whether a Charter right arises, the scope of its protection, and the appropriate framework of analysis – is a constitutional question that requires a final and determinate answer from the courts (at para 63). In the course of explaining that conclusion, Justice Rowe referenced (at para 66) a post-Vavilov developing line of jurisprudence

supporting the application of correctness review in the constitutional context, including Ferrier and Parole Board. [52] Applying the correctness standard, the majority held that Ontario public school teachers are protected from unreasonable search and seizure in their place of employment under section 8 of the Charter and that the arbitrator erred because she ought to have applied the Charter but failed to do so (at para 68). [53] In concurring reasons written by Justices Karakatsanis and Martin, they explained their agreement with the majority that the issue of whether the Charter applies to Ontario school boards is one that must be determined on a standard of correctness. However, they disagreed with how the majority reviewed the arbitrator’s decision and concluded instead that the arbitrator’s reasons clearly demonstrated that she appreciated that the section 8 privacy framework applied and constrained her decision. As such, the issue for the Court’s determination was whether the arbitrator used that framework reasonably in the circumstances of the case (at para 108-09). [54] Speaking to the applicable standard of review, the minority disagreed with the majority’s broad statement of the constitutional questions exception to the presumption of reasonableness review identified in Vavilov. Although agreeing that whether or not teachers had a privacy right in their workplace

was an issue that required a correctness determination and that the arbitrator’s analysis had to be consistent with the Charter framework, the minority concluded that the arbitrator’s reasons demonstrated that she was reviewing the challenged conduct using the section 8 Charter framework as a touchstone. The minority held that focusing on whether the arbitrator asked the right question and therefore reviewing the arbitrator’s decision on the correctness standard overshot the Vavilov exception. Rather, the issue before the arbitrator was whether the teachers’ privacy rights had been breached, an assessment which depended heavily on the specific factual and statutory context to which the presumption of reasonableness review therefore applied (at paras 111-12). [55] Following further explanation of their conclusion that the arbitrator had recognized that section 8 of the Charter constrained her decision (at paras 113-18), the minority elaborated upon their conclusion that there was no basis to depart from the presumption of reasonableness review where determining the engagement and scope of Charter rights entailed a highly context-specific exercise (at paras 121-23). The minority expressed their view that the cases cited by the majority at paragraph 66 (including Ferrier and Parole Board) were distinguishable from the circumstances of the present appeal and did not support

correctness review for how administrators should assess a Charter right in a particular factual context (at para 124). [56] In relation to Ferrier in particular, the minority noted that that case was not considered by the SCC on an appeal, expressed no comments on its conclusions, and expressed their view that the principle requiring correctness for constitutional matters did not govern review of whether the privacy right was infringed in the circumstances of the case before it (at para 126). Nor did the minority accept that the cases referenced by the majority qualified as a line of developing authority requiring correctness review for whether a Charter right arose on the facts or for questions about the scope of a Charter right (at para 127). [57] Employing the reasonableness standard to assess the arbitrator’s decision, the minority nevertheless agreed with the majority that the arbitrator had erred. The minority concluded that the decision was unreasonable and that the arbitrator’s reasons were inconsistent with the approach required by the applicable section 8 framework (at para 129). (4) Analysis [58] Relying on the recent jurisprudential backdrop provided by the SCC, the Applicant in the case at hand argues that York Region supports his position that, in the first stage of the Doré analysis, which considers whether a Charter right or value is engaged, the standard of

correctness applies. Indeed, he takes the position that, depending upon the particular administrative decision-maker’s level of expertise in analysing Charter considerations, York Region also potentially supports application of the correctness standard to the second stage Doré review of the decision’s proportionate balancing. [59] In contrast, the Respondent relies on Commission scolaire in support of the position that the entire Doré analysis is to be conducted under the standard of reasonableness. The Respondent argues that the correctness review required by York Region applies only in circumstances where a decision-maker has failed to turn its mind to whether a Charter right is engaged. In that respect, the Respondent draws a distinction between the decision that was under review in Robinson FC, in which DFO had failed to consider the applicant’s Charter arguments, and the decision now under review in which those arguments were considered but rejected. [60] I disagree with the Respondent’s position that York Region can be interpreted and distinguished in that manner. In concluding that the arbitrator erred in law by failing to apply the section 8 Charter right as she was required to do, the majority observed not only that the arbitrator’s reasons failed to indicate that she was considering that right but also that she failed to appreciate that the Charter right was at stake

(at para 94). To accept the Respondent’s submission would be to conclude that, if the arbitrator had thought about the Charter right but concluded that it did not apply, the majority in York Region would have examined that conclusion through the standard of reasonableness. I do not read the majority’s analysis as capable of supporting that interpretation. [61] I appreciate that the performance of a court’s task in considering whether Charter rights or values are engaged in a particular case may differ depending on whether the administrative decision-maker has itself considered whether such rights or values are engaged. If the decision-maker has conducted such an analysis, then the court has the benefit of that reasoning that may inform its own analysis. However, I do not consider the existence of reasons from the decision-maker on Charter engagement to translate into a requirement that the court’s review of those reasons be conducted on the standard of reasonableness. Nor can I identify a principled reason why, as the Respondent would advocate, the standard of review applicable to the engagement question should differ depending on whether or not the administrative decision-maker has itself considered and analysed the question. [62] I also appreciate the point raised by the minority in York Region (and advanced by the Respondent in argument in the case at hand), that determining

the engagement and scope of Charter rights can be a context-specific exercise. Indeed, in Toth, Justice Pallotta expressed similar concern about the courts retrying fact-specific administrative decisions. However, while Toth noted that in Robinson FCA the FCA had declined to decide whether it should adopt the standard of review approach set out in Ferrier, the FCA has subsequently applied that approach in Parole Board. Moreover, the majority in York Region expressly approved of what it described as a developing body of jurisprudence, including Ferrier and Parole Board. The majority in York Region also expressly stated that the question of whether a Charter right arises and the scope of its protection is subject to the correctness standard of review. [63] As such, while the jurisprudential tension displayed in the Federal Courts’ decisions remains evident in the divergence between the majority and minority decisions in York Region, the guidance of the majority must be regarded as determinative. I also note that I do not regard that guidance as diverging from that provided in Commission scolaire. While Commission scolaire speaks expressly only of reasonableness review, it does so in the context of the Doré proportionate balancing exercise. At paragraph 73, Commission scolaire articulates the required analysis as follows: It follows from the foregoing that, under the Doré

approach, a reviewing court must first determine whether the discretionary decision limits Charter protections. If this is the case, the reviewing court must then examine the decision maker’s reasoning process to assess whether, given the relevant factual and legal constraints, the decision reflects a proportionate balancing of Charter rights or the values underlying them. If not, the decision is unreasonable. [64] This explanation references the required reasonableness review in the context of the proportionate balancing of Charter rights or values, i.e., the second stage of the Doré analysis. In relation to the first stage, it refers to the reviewing court determining whether the administrative decision limits Charter protections. That language reads as a correctness review. [65] Indeed, if one returns to Doré itself, the SCC’s focus on reasonableness review is expressed in the context of the balancing of Charter values with statutory objectives (at para 58), and the ensuing reasonableness analysis assesses that balancing, not whether the particular Charter value is engaged. [66] Similarly, in the elaboration upon Doré found in Loyola, the SCC described the reasonableness of the ministerial decision then under review as depending on whether it reflected a proportionate balancing between the relevant statutory mandate and the religious freedoms under consideration (at para

32). The Court explained that, in contexts where Charter rights are engaged, reasonableness requires proportionality (at para 38). [67] In other words, I do not read the principles surrounding standard of review expressed in either Doré or Loyola to be inconsistent with the approach to be derived from York Region, whereby the question whether Charter rights or values are engaged is assessed on a correctness standard and, if answered in the affirmative, the necessary balancing of those rights or values with statutory objectives is assessed on the standard of reasonableness. [68] Before concluding on standard of review, I also note that I find no jurisprudential support for the Applicant’s argument that, depending upon an administrative decision-maker’s particular expertise, a court’s assessment of the proportionate balancing might in some circumstances warrant a correctness review. That position is inconsistent with Doré and the cases that have followed it and, in my view, is not supported by York Region. While York Region is framed entirely in terms of correctness review, that framing results from the majority’s conclusion that the administrative decision-maker failed to recognize and apply the Charter right that was engaged in that case. In other words, with the benefit of that conclusion, the majority was not required to move to the second stage of the analysis that involved

reasonableness review. [69] In conclusion, in reviewing the Decision, I will conduct the first stage of the Doré analysis employing the correctness standard and will conduct the second stage employing the standard of reasonableness. B. Is the Decision correct or reasonable (depending on the standard of review selected)? (1) Whether the Decision engages subsection 15(1) of the Charter [70] The above standard of review analysis necessarily drew upon explanations of the jurisprudential principles governing the application of the Charter to administrative decision-making. I will not repeat those explanations but will expand upon them in my review of the Decision. [71] First, in considering under the correctness standard whether the Decision engaged subsection 15(1) Charter rights or values, I will be guided by jurisprudence that explains the required analysis in a subsection 15(1) context. The Respondent relies on the relatively recent decision in R v Sharma, 2022 SCC 39 [Sharma], in which the majority of the SCC described the applicable test as follows (at para 28): The two‑step test for assessing a s. 15(1) claim is not at issue in this case. It requires the claimant to demonstrate that the impugned law or state action: (a) creates a distinction based on enumerated or analogous grounds, on its face or in its impact; and (b) imposes a burden or denies a benefit in a manner that

has the effect of reinforcing, perpetuating, or exacerbating disadvantage (R. v. C.P., 2021 SCC 19, at paras. 56 and 141; Fraser v. Canada (Attorney General), 2020 SCC 28, at para. 27; Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30, [2015] 2 S.C.R. 548, at paras. 19‑20). [72] The majority further elaborated upon the steps as follows (at para 31): The first step examines whether the impugned law created or contributed to a disproportionate impact on the claimant group based on a protected ground. This necessarily entails drawing a comparison between the claimant group and other groups or the general population (Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, at p. 164). The second step, in turn, asks whether that impact imposes burdens or denies benefits in a manner that has the effect of reinforcing, perpetuating, or exacerbating a disadvantage. The conclusion that an impugned law has a disproportionate impact on a protected group (step one) does not lead automatically to a finding that the distinction is discriminatory (step two). [Emphasis in original.] [73] In arguing that the Charter is not engaged by the Decision in the case at hand, the Respondent faces the significant challenge that this issue was addressed in Robinson FC, in which this Court applied the same test (although as enunciated in the pre-Sharma decision in Quebec (Attorney General) v

Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018 SCC 17 [Alliance]) and held that the test was met (Robinson FC at paras 49-57). The Court subsequently reached the same conclusion in Boudreau (at para 41). [74] The Respondent’s jurisprudential position is that both Robinson FC and Boudreau were wrongly decided, as they failed to conduct the full analysis required under Sharma. In particular, the Respondent argues that these authorities failed to conduct an analysis under the second step of the Sharma test, considering whether the impugned decision imposed a burden or denied a benefit in a manner that had the effect of reinforcing, perpetuating, or exacerbating a disadvantage. [75] I do not find this argument compelling. In Robinson FC, the applicant advanced submissions under both stages of the Alliance test. Under the first stage, he submitted that he lives with and is limited by the physical disability created by his medical condition and that the decision under review, influenced by the five-year policy limitation upon MSO authorizations, imposed differential treatment on him in comparison to non-disabled fishers, creating a distinction based on the enumerated ground of physical disability. He argued that licence holders who do not suffer from a medical condition, and are therefore able to personally fish their licences, are in a

position to renew and fish licences indefinitely as long as they abide by the licence terms and conditions. In contrast to that group, the requirement to obtain an MSO authorization and the decision denying him that authorization had the impact of depriving him of the ability to fish his licence (at para 49). [76] In connection with the second stage of the test, the applicant argued that the decision under review was discriminatory in that it denied him the ability to pursue the livelihood of his choice. He emphasized that he owned and operated the relevant fishing enterprise but that, as a result of the decision, he was required to give up his livelihood simply because he was physically unable to remain on board his vessel for the extended period of time often required to harvest its catch. The applicant submitted that these circumstances perpetuated a serious disadvantage for a fisher with a physical disability (at para 50). [77] In response, the respondent in Robinson FC relied significantly on principles surrounding the nature of a fishing licence. That is, section 7 of the Fisheries Act affords the Minister absolute discretion to issue fishing licences. Pursuant to section 10 of the General Regulations, a “document” (which, according to section 2 of the General Regulations, includes a licence) that is issued for a particular calendar or fiscal year expires at the

conclusion of that year. Section 16 of the General Regulations provides that a licence is the property of the Crown and is not transferable and that the issuance of a licence to any person does not confer any future right or privilege for the person to be issued a licence of the same type. [78] The respondent noted that subsection 15(1) of the Charter afforded individuals the right to equal benefit of the law without discrimination and argued that, as the applicant was not seeking a benefit of the law, his claim did not engage section 15. The respondent submitted that the applicant was seeking a benefit that was not afforded by law to anyone else, as no licence holder had a legal right to fish indefinitely, to receive indefinite renewal of a licence, or to receive indefinite authorization to use an MSO (at para 51). [79] In support of its position in Robinson FC, the respondent relied on Auton (Guardian ad litem of) v British Columbia (Attorney General), 2004 SCC 78 [Auton], in which the petitioners brought an action against the province of British Columbia, alleging that its failure to fund specific treatment of their autistic children violated subsection 15(1) of the Charter. The SCC found that the benefit claimed, i.e., funding for all medically required treatment, was not a benefit that the law provided to anyone. [80] This Court in Robinson FC analysed the respondent’s

arguments as follows (at paras 53-57): 53. In analyzing these arguments, I have considered both the statutory regime under which the Canadian fishery is managed and the practices employed by the DFO in effecting such management. The Attorney General is correct that the holder of a fishing licence does not have a legal right to be issued a renewal of that licence at the conclusion of its term. As explained by Justice Strickland, in considering the 1996 Policy in Elson v Canada (Attorney General), 2017 FC 459 [Elson FC] (aff’d 2019 FCA 27 [Elson FCA]) at paragraph 3: 3 Over the years, the DFO has established various policies pertaining to management of the fishery. One of these is the Commercial Fisheries Licencing Policy for Eastern Canada, 1996 (“1996 Policy”) which has been revised over time but remains in effect. The 1996 Policy describes a fishing licence as an instrument by which the Minister, pursuant to his or her discretionary authority under the Fisheries Act, grants permission to a person to harvest certain species of fish, subject to the conditions attached to the licence. This is not a permanent permission and terminates upon expiry of the licence. The licence holder is essentially given a limited privilege, rather than any kind of absolute or permanent right or property. Generally speaking, all fishing licenses must be renewed, or “replaced”, annually.

54. However, Mr. Robinson refers to the DFO’s practice, assuming a licence holder’s compliance with its terms and conditions, to reissue the licence to the licence holder each year, or to issue a “replacement” licence to another eligible person upon the licence holder’s request. Mr. Knight described this practice surrounding replacement in his affidavit. It is also captured in the 1996 Policy.

55. In support of the practice of reissuing licences to a given licence holder year after year, Mr. Robinson notes the explanation of that practice in the chapter authored by David G Henley, “The Fishing Industry,” in Aldo Chricop et al, eds, Canadian Maritime Law, 2nd Ed (Toronto: Irwin Law, 2016) 1024 at 1041-1042. I do not understand the existence of this practice to be controversial between the parties. Indeed, in Saulnier v Royal Bank of Canada, 2008 SCC 58, the Supreme Court recognized that the stability of the fishing industry depends on the Minister’s predictable renewal of fishing licences year after year (at para 14).

56. The question is whether, against that backdrop, the disparate treatment that Mr. Robinson argues engage his s 15(1) rights involves what can be characterized as a denial of equal benefit of the law. In my view, this is the correct characterization. Mr. Robinson has no more right to have his Licence renewed each year than does any other licence holder. While there is an established practice of doing so, the renewal (or, more accurately, the re-issuance) remains subject to the Minister’s absolute discretion under s 7 of the Act. However, if the Minister does re-issue his Licence, then Mr. Robinson’s ability to avail himself of the benefits afforded by that legal act differs from the ability of other licence holders who are not physically affected by a medical condition. Mr. Robinson cannot fish his licence without a particular licence condition, the authorization to use a MSO. Therefore, a decision which declines to grant him such authorization necessarily engages his s 15(1) rights as a person with a physical disability.

57. I accept Mr. Robinson’s submissions regarding both stages of the Alliance test. This situation is distinct from that considered in Auton, where the petitioners were seeking a benefit that the law did not provide. The law provides benefits to fishers, once they are issued licences, and the administration of the benefits of licences must conform with Charter values. [81] As demonstrated by this analysis, culminating with the conclusion in the final paragraph thereof, Robinson FC considered and rejected the respondent’s arguments in connection with the test for Charter engagement and expressly accepted the applicant’s submissions as to how both stages of the test were met. [82] Turning to Boudreau, the Court’s engagement analysis concludes with paragraph 41, stating that the Court accepted that DFO’s policy created a prima facie distinction based on disability and, therefore, the decision under review engaged the Charter. I appreciate that this statement references only the first, and not the second, stage of the Sharma test. However, the Court’s preceding analysis quoted and relied upon the above paragraphs from Robinson FC, which expressly considered both elements of the test, and paragraph 41 concluded with the rejection of the respondent’s assertion that Robinson FC was distinguishable. [83] In the absence of any compelling basis to distinguish the present facts from those

in Robinson FC and in Boudreau, those decisions afford little scope for a conclusion other than that they are determinative jurisprudentially and that, as in those cases, the Decision in the case at hand engaged the Applicant’s subsection 15(1) Charter rights. [84] However, in keeping with the point expressed earlier in these Reasons, that in circumstances where an administrative decision-maker has expressly considered (and, in this case, rejected) Charter engagement, that analysis may inform a court’s conduct of the correctness review, I have also considered the Decision’s analysis of that issue. [85] At this stage in the Court’s analysis, it is necessary to consider the dispute between the parties, that became evident during the hearing of this matter, as to which documents in the record before the Court should inform its understanding of the DM’s reasons for the Decision. As previously noted, while the Decision was conveyed in the Decision Letter, the CTR also includes the Memorandum and the Rationale prepared by DFO, which documents the Respondent argues form part of the Decision. The Applicant disagrees, arguing that, where an administrative decision-maker has authored a substantive decision (in this case, the Decision Letter), that document alone represents the decision. The Applicant submits that there is no basis to conclude that analytical elements, which are found in

the Memorandum or the Rationale but not in the Decision Letter, form part of the DM’s reasoning. [86] In Robinson FC at paragraph 65, this Court analysed a similar issue, in which the applicant took a similar position, arguing that recommendations from the AFLAB and DFO, that formed part of the material before the Deputy Minister, did not form part of the reasons for the decision. The Court rejected that position, noting that in a circumstance where the record before a decision-maker includes recommendations that provide analysis of the case and which are effectively adopted by the decision-maker, that documentation can be instructive in understanding the decision-maker’s reasoning (see Newfoundland and Labrador Nurses' Union v Newfoundland & Labrador (Treasury Board), 2011 SCC 62 at para 15; Elson v Canada (Attorney General), 2019 FCA 27 at para 54, leave to appeal to SCC refused, 38584 (25 July 2019)). [87] Adopting that analytical framework in the case at hand, I will consider the contents of the Memorandum and the Rationale, in conjunction with the Decision Letter, to assess whether the Decision Letter should be read as adopting elements of the analyses found in the supporting documents. [88] The Decision Letter set out the following Charter engagement analysis: With respect to your allegation of discrimination, I have determined that subsection 15(1) of the Charter is not engaged in this decision. This is because: 1. There is no indication that you will ever be able to carry out commercial fishing activities personally. You are seeking to collect revenues from a licence to fish for an indefinite period of time without fishing. You are claiming retirement-like benefits in a licence to fish, which are not available by law under the Fisheries Act.

2. If it could be considered that my decision would be making a distinction based on your age or physical disability, it would not be a discriminatory decision. It would merely reflect the reality that your advanced age and the natural physical effects of your aging are inconsistent with ongoing employment in commercial fishing. Accordingly, your assertion that a refusal of your request would infringe your right to the equal benefit of the law without discrimination is without merit. [89] The Memorandum contains a similar but somewhat lengthier analysis, that reads as follows: Mr. Mombourquette asserted that failure to issue him further MSO authorisations would infringe his equality rights guaranteed by section 15 of the Charter (protection against discrimination based on age and/or physical disability). [Redaction subject to solicitor-client privilege] DFO disagrees with this assertion. DFO considers that Mr. Mombourquette’s right to the equal protection and equal benefit of the law without discrimination is not engaged by the decision you have to make. This is because: • There is no indication that Mr. Mombourquette will ever be able to personally carry out fishing activities authorised by the licences issued to him. He has no viable plan to exit the fishery and he wishes to retain the lobster licence as an income-generating mechanism for an indefinite duration. The Fisheries

Act does not confer on anyone the legal right to a licence to fish, and no licence holder can claim a right to receive any fishing licence (or other fishing authorisations) year-after-year nor to receive it for an extended or infinite period in the future. There is no long-term income generating benefits of that type afforded to anyone by law under the Fisheries Act. • Even if it were found that what Mr. Mombourquette is seeking is a “benefit of the law,” a decision to deny Mr. Mombourquette the further use of a MSO is not discriminatory. Specifically, Mr. Mombourquette has reached a point in his life where the consequences associated with his advanced age (well beyond the standard age for retirement) constitute a physical impediment to carrying out the physically demanding activities inherently associated with commercial fishing. Any distinction made in this context does not reflect negative views and does not reinforce, perpetuate, or exacerbate a disadvantage. It simply reflects the fact that Mr. Mombourquette is being impacted by an irreversible decline in his physical abilities, to a point where he is no longer capable of carrying out activities he carried out at a younger age. [90] That excerpt from the Memorandum is in turn a summary of a lengthier analysis in the Rationale document. I will not reproduce that analysis, as it appears to be accurately summarized in the

Memorandum, and the Respondent has not identified any particular element of the Rationale (or indeed the Memorandum) on which it relies to supplement the reasons in the Decision Letter. However, in relation to this aspect of the Decision (analysing the issue of Charter engagement), I agree with the Respondent’s position that it is appropriate to read the Decision Letter as adopting the portions of the analyses canvassed above. As such, the Court can have recourse to the Memorandum and the Rationale in developing an understanding of the reasons for the Decision. [91] However, I do not consider the reasons identified through this review to particularly assist the Respondent in distinguishing this matter from Robinson FC or Boudreau or to otherwise support a conclusion that this aspect of the Decision is correct. Rather, the DM’s analysis appears comparable to the arguments that the Court rejected in those authorities. [92] As explained above, the respondent argued in Robinson FC that the applicant was seeking a benefit that is not afforded by law to anyone else, as no licence holder has a legal right to fish indefinitely, to receive indefinite renewal of a fishing licence, or to receive indefinite authorization to use an MSO. In conducting the first stage of the Sharma analysis, the Decision similarly reasons that the Fisheries Act does not confer rights of this nature and

characterizes the Applicant as seeking a long-term retirement-like income generating benefit that is not afforded to anyone under the law. In its written submissions in this application, the Respondent again relies on Auton (as it did in Robinson FC) to support an argument that the benefit sought by the Applicant is not one that is available at law. [93] As explained in more detail in the paragraphs of Robinson FC quoted earlier in these Reasons, the Applicant has benefits under the law if the Minister reissues the Licence to him, but the Applicant’s ability to avail himself of those benefits differs from the ability of other licence holders who are not physically affected by a medical condition. The Applicant cannot fish his licence without a particular licence condition, the authorization to use an MSO. Therefore, the Decision which declined to grant him such authorization necessarily engaged his subsection 15(1) Charter rights as a person with a physical disability. The situation is distinct from Auton, which involved a benefit that the law did not provide. [94] The Respondent also relies on Publicover v Canada (Attorney General), 2023 FC 659 [Publicover] at paragraph 47, in which this Court held that it was reasonable for the Minister to have made a discretionary decision declining to confer additional benefits upon a fishing licence holder that were not supported by DFO

policy. However, Publicover does not assist the Respondent. That decision is factually distinct, in that it involved a decision declining to authorize a transfer of a category of fishing licences that were not transferable under DFO policy. More importantly, while Publicover refers to Robinson FC and Boudreau in the context of a particular argument raised by the applicant in that case, the applicant was not advancing an argument that the decision declining to allow transfer of his licence was not Charter-compliant. As the Respondent acknowledges in its written submissions, the Court’s comments about benefits at paragraph 47 of Publicover were not made in the context of a Doré analysis. [95] In conducting the second stage of the Sharma analysis, the Decision states that, even if what the Applicant was seeking did represent a benefit of the law, the Charter was still not engaged, as a decision to deny him the further use of an MSO was not discriminatory. The Decision references physically demanding activities associated with commercial fishing and reasons that the distinction to which the Applicant is subject simply reflects the fact that he has aged to a point where irreversible physical decline has rendered him incapable of carrying out the physical demanding activities inherently associated with commercial fishing. [96] In support of this aspect of the DM’s analysis, the

Respondent relies on jurisprudence identifying that distinctions based on actual capacities will rarely be discriminatory (see, e.g., Andrews v Law Society of British Columbia, [1989] 1 SCR 143 at 174-75, 1989 CanLII 2 (SCC); Sharma at para 53). The Respondent argues that this principle is particularly applicable in the employment context, where distinctions in treatment frequently reflect actual capacities and needs. For example, the SCC has held that limits on how long an employee may be absent from work for health reasons or disability are not discriminatory (McGill University Health Centre (Montréal General Hospital) v Syndicat des employés de l’Hôpital général de Montréal, 2007 SCC 4 [McGill]). An employer is entitled to establish bona fide occupational requirements such as measures to ensure the regular attendance of the workforce upon which it relies (McGill at para 18). [97] While this principle is jurisprudentially sound, I do not find it applicable to the matter at hand. As the Applicant argues, the bona fide occupational requirements analysis advanced by the Respondent (and implicit in the Decision, although it does not use that language expressly) is a poor fit for the circumstances currently before the Court. The whole point of the Applicant’s request is that he has actively and successfully prosecuted the fishery authorized by the Licence for many years. While his

disability prevents him from being physically present on the vessel during its fishing activities, it does not prevent him from getting the job done. The requirement to be physically present, or in the alternative obtain authorization to employ an MSO, is strictly a function of policy considerations underlying the applicable regulatory and policy regime. [98] Whether the relevant policy objectives should prevail over the Applicant’s interest in pursuing his livelihood in the commercial fishery is a determination to be made through the proportionate balancing exercise under the second part of the Doré analysis. However, I do not regard a policy-based requirement as akin to an occupational requirement of the sort addressed in McGill. As the Applicant submits, and as this Court accepted in Robinson FC, the effect of the Decision is discriminatory, in that it denies him the ability to pursue the livelihood of his choice, thereby perpetuating a serious disadvantage experienced by fishing industry participants with physical disabilities. The Decision’s Charter engagement analysis fails to recognize this effect upon the Applicant. [99] Applying the standard of correctness, I find that the DM erred in both stages of the Sharma analysis and in thereby concluding that subsection 15(1) of the Charter was not engaged by the Decision. Before leaving this stage of the analysis, I note that,

in the circumstances of this case in which the Court had the benefit of reasons for the decision-maker’s conclusion that the Charter was not engaged, it is a straightforward exercise to also analyse this aspect of the Decision under the standard of reasonableness. Given the unsettled state of the law on standard of review canvassed earlier in these Reasons, I consider it beneficial to do so. [100] In this case, review under the reasonableness standard generates the same result as did the correctness standard. Reasonableness review requires a respectful attention to the reasons given by the administrative decision-maker by way of justification for the decision, warrants deference to such reasons, and acknowledges the possibility of a range of acceptable outcomes (Vavilov at paras 83-86). However, for the reasons articulated in the course of my correctness review, the justification offered by the DM does not withstand review even on the reasonableness standard. The Decision’s reasoning, that the Decision does not affect a benefit available at law and that it does not discriminate against the Applicant by perpetuating a disadvantage arising from his physical disability, are not conclusions available under the relevant legal and factual constraints that are capable of withstanding review even on the more deferential standard. (2) Whether the Decision proportionately balanced

Charter rights against statutory and policy objectives [101] Given that the Decision engaged the Charter, the DM was obliged to proportionately balance the Applicant’s Charter rights against the underlying statutory and policy objectives informing the Decision. As previously explained, the reasonableness standard applies to the Court’s review of this balancing exercise under the second stage of the Doré analysis. [102] The Applicant argues that, as the DM failed to recognize that the Charter was engaged, the Decision necessarily demonstrates a reviewable error and must be set aside, without need for the Court to move to the second stage of the Doré analysis. I note that the Applicant takes the position that the Decision Letter does not set out a proportionate balancing analysis. However, the Applicant also submits that, even if the Court were to conclude based on the Memorandum and the Rationale that the Decision does include a balancing analysis, such analysis cannot be reasonable as it was performed in a context in which no Charter engagement was actually acknowledged. [103] The Applicant’s argument raises an interesting question as to whether it is possible for an administrative decision-maker to conduct a reasonable proportionate balancing analysis, after finding that the Charter right or value to be balanced is not engaged. In the absence of more comprehensive submissions

on this question, I decline to address that question as a matter of law as, in my view as explained below, the answer to that question in this particular matter can be derived from a review of the reasons for the Decision. [104] As with the first stage of the Doré analysis, it is necessary to consider which documents in the record before the Court inform an understanding of the reasons for the Decision. After expressing the conclusion (as quoted above) that a refusal of the Applicant’s MSO authorization request would not infringe subsection 15(1) of the Charter, the Decision Letter sets out the following analysis: Furthermore, your request is inconsistent with DFO’s underlying fisheries management policy objectives. Despite this refusal, you are further accommodated in that you may continue to seek renewal of the licences issued to you (herring 104562, mackerel 106162, and lobster 111129) on a yearly basis, so long as the fisheries are not closed for conservation purposes. Continuing to renew the licences will allow you to recommend to the Minister to issue a replacement licence to an eligible fisher, and to access a significant amount of capital via private commercial transaction while exiting the fishery. In my view, this is the best available option that is consistent with the fisheries management regime in place. [105] Turning to the other documentation in the record, the

Memorandum submits two options for the DM’s consideration: (a) granting the Applicant’s appeal and authorizing a further MSO; and (b) denying the appeal and refusing a further MSO. The Memorandum recommends the latter option and expresses the opinion that authorizing a further MSO would be contrary to the underlying objective of subsection 19(2) of the Atlantic Regulations and DFO policy to ensure that independent owner-operators are personally participating in and benefiting from commercial fishing in the inshore sector. [106] Immediately before setting out these options and the resulting recommendation, the Memorandum states that these two options had been identified and comprehensively analysed by DFO (in the Rationale) and that, despite DFO’s view that the Applicant’s asserted Charter-protected right is not engaged, DFO’s analysis included the proportionate balancing that would have been required if that protected right had been engaged. Consistent with that description, the Rationale states that, despite the views of DFO that a decision to deny the further use of an MSO would not engage the Applicant’s subsection 15(1) right, as a matter of precaution DFO will conduct the Charter balancing. That exercise then ensues in a section entitled “The proportionate balancing”. [107] I read these portions of the Rationale and the Memorandum documents as having led to the DM’s

conclusion, as set out in the Decision Letter, that the appropriate result was to choose the recommended option refusing to provide the Applicant with a further MSO authorization. As such, I am satisfied that such content forms part of the reasons for the Decision. [108] The substance of the balancing exercise is found in the Rationale, which commences with the following statement of relevant principles: In case it would be found that the Charter right raised is engaged, a decision should be considered reasonable if the decision reflects a proportionate balancing of the Charter equality right with the underlying objectives of the applicable fisheries management regime. This requires the decision maker to determine the impacts of the decision on Mr. Mombourquette’s alleged Charter protected rights, and attempt to balance those impacts or minimize them in regards to the objectives sought to be achieved under the fisheries management regime at issue. If there is an option available that would have less impact on the Charter protected right of Mr. Mombourquette and that would not undermine the underlying objectives of the regime, that option will be the reasonable decision to make. [109] I find no flaw in this statement of principles that should guide the proportionate balancing. [110] The Rationale then sets out the following analysis: It appears that Mr. Mombourquette wishes to

retain the lobster licence as an income or revenue-generating asset or retirement-like benefit. This is inconsistent with the management of this fishery under the Fisheries Act and undermines the objectives of DFO in managing inshore fisheries in Atlantic Canada. Mr. Mombourquette has relied on the use of a MSO for the lobster licence from 2011 to 2022, for a total of 12 consecutive years. The objectives to be achieved by requiring that licence holders personally fish the licences issued to them apply to everyone holding those types of licences, regardless of the reasons why they cannot fish them. Mr. Mombourquette is seeking an indefinite MSO authorization. Under the Fisheries Act and regulations, no one is entitled to a perpetual fishing authorization, and no one can claim a right to be issued an indefinite licence to fish or an indefinite MSO authorization. Granting Mr. Mombourquette further or indefinite use of an MSO would circumvent the existing management scheme and would severely undermine the objectives sought in sound fishery management that have been in place and kept the fishing industry and resource economically and environmentally viable for many decades. Mr. Mombourquette’s contention that he is still controlling his enterprise from shore and is not undermining DFO policies, objectives and operations is ill-founded. Allowing Mr. Mombourquette to operate the

lobster licence in such a manner would be no different that [sic] allowing fish processors and third parties to control inshore licences. Further, Mr. Mombourquette overlooks that once a substitute operator authorisation is granted, the named licence holder relinquishes many of the rights and privileges to any commercial fishing activity during the authorized substitute operator period. Mr. Mombourquette has alternative options available to him that would mitigate the alleged financial impacts on him. A viable and lucrative option for Mr. Mombourquette is the ability to request to the Minister to reissue the lobster licence (and eventually the herring licence and the mackerel licence) to another eligible inshore licence holder or new entrant that he recommends. Mr. Mombourquette could personally realize substantial financial benefits as a result of a private commercial transaction with the proposed new licence holder, and retains this option regardless of the outcome of the decision on MSO. [111] The Rationale then considers options available to the DM and concludes with the recommended option of denying the Applicant’s appeal and refusing further MSO authorization. [112] While the above analysis in the Rationale canvases objectives underlying the DFO’s regulatory and policy regime, in an effort to balance them against Charter rights, the difficulty is that the analysis is

significantly tainted by the errors (explained earlier in these Reasons) that were made in determining whether the Charter was engaged. [113] As with the Decision’s engagement analysis, the above balancing analysis describes the Applicant’s request for an MSO authorization as an effort to obtain an indefinite licence to fish. As explained earlier in these Reasons, this sort of description repeats the Decision’s flawed analysis of the Applicant’s position, which seeks only the ability to fish if the Minister makes the annual discretionary decision to renew the Licence. The above balancing analysis also describes the Applicant’s interests as seeking an income or revenue-generating asset or retirement-like benefit and positions the required balancing as related to financial impacts. It fails to recognize that the effect of the Decision is discriminatory in that it denies him the ability to pursue the livelihood of his choice. [114] Consistent with the Applicant’s submission in this application, the Decision’s proportionate balancing analysis, while on its face is described as an alternative analysis premised on the Charter being engaged, is unreasonable because the balancing was not performed against the Charter-protected interests that are at issue in this matter. C. Are subsections 18(a) and 19(2) of the Atlantic Regulations constitutionally invalid because they violate

subsection 15(1) of the Charter? [115] The Applicant argues that subsection 19(2) of the Atlantic Regulations, and subsection 18(a) of the Atlantic Regulations that identifies categories of inshore licences to which certain provisions including subsection 19(2) apply, are constitutionally invalid because they violate subsection 15(1) of the Charter. Indeed, in his Amended Notice of Application, and in a Notice of Constitutional Question served on the federal and provincial attorneys general and filed on April 23, 2024, which attaches the Amended Notice of Application, the Applicant seeks an order from the Court declaring that subsections 18(a) and 19(2) are of no force and effect. [116] Subsections 18(a) and 19(2) of the Atlantic Regulations provide as follows: 18 (a) an inshore fishing licence that is held by a licence holder that is identified as an independent core licence holder with the Minister of Fisheries and Oceans Canada, except for a licence that indicates this Part does not apply, and the licence is to fish for [proceeds to list in paragraphs 18(a)(i) – (xiii) particular species and types of fishing gear] 19 (2) In the case of a licence referred to in paragraph 18(a), (b), (d) or (g), the activities authorized under the licence must be carried out personally by the licence holder, the operator named in the licence or a person authorized in accordance with subsection

23(2) of the Fishery (General) Regulations. 18 (a) le permis de pêche côtière détenu par un titulaire de permis reconnu auprès du ministère des Pêches et des Océans comme titulaire de permis du noyau indépendant, sauf si le permis indique que la présente partie ne s’applique pas et qu’il vise la pêche : [procède à la liste aux paragraphes 18(a)(i) – (xiii) d’espèces et de types particuliers d’engins de pêche] 19 (2) Dans le cas d’un permis visé aux alinéas 18a), b), d) ou g), les activités autorisées par le permis doivent être exercées personnellement soit par le titulaire de permis, soit par l’exploitant désigné dans le permis, soit par une personne qui a reçu une autorisation conformément au paragraphe 23(2) du Règlement de pêche (dispositions générales). [117] However, the Applicant did not raise the constitutionality of these provisions before the DM. This raises concerns that, pursuant to the principles explained by the FCA in Forest Ethics Advocacy Association v Canada (National Energy Board), 2014 FCA 245 [Forest Ethics], this issue is not properly before the Court. Where an administrative decision-maker can hear and decide a constitutional issue, that jurisdiction should not be bypassed by raising the constitutional issue for the first time on judicial review (Forest Ethics at para 46). [118] The Applicant argues that this principle should not be an impediment to

raising the invalidity argument in this application, because the DM was not empowered to make a declaration of constitutional invalidity. Only the Court is so empowered. The Applicant also argues that, based on the DM’s response to the arguments as to how the Decision engaged the Charter, it would have been a waste of time to raise the invalidity argument that before the DM. [119] The latter argument has no merit. The Forest Ethics principle is based at least in part on the need to respect the legislature’s grant of jurisdiction to administrative decision-makers (at para 46) and the value in the court being provided with a record that includes insights derived from the analysis by the administrative decision-maker (at paras 42-45). Regardless of whether the decision-maker analysis favours the Applicant, such an analysis forms an important component of the process of administrative decision-making and judicial oversight thereof. [120] In relation to the Applicant’s argument as to the DM’s authority, I note that Forest Ethics considered but rejected similar arguments advanced by the applicant in that matter that they should be allowed to raise their Charter issue for the first time on judicial review because the relevant administrative decision-maker (the National Energy Board) could not declare the challenged provision of no force or effect. The FCA noted at paragraph 50 that

the SCC had addressed this argument in Okwuobi v Lester B. Pearson School Board; Casimir v Quebec (Attorney General); Zorrilla v Quebec (Attorney General), 2005 SCC 16 at paragraph 45: That said, a claimant can nevertheless bring a case involving a challenge to the constitutionality of a provision before the [Tribunal]. If the [Tribunal] finds a breach of the Canadian Charter and concludes that the provision in question is not saved under s. 1 it may disregard the provision on constitutional grounds and rule on the claim as if the impugned provision were not in force (Martin, at para. 33). Such a ruling would, however, be subject to judicial review on a correctness standard, meaning that the Superior Court could fully review any error in interpretation and application of the Canadian Charter. In addition, the remedy of a formal declaration of invalidity could be sought by the claimant at this stage of the proceedings. [121] The Respondent submits that the Forest Ethics principle applies in the case at hand and that the Court should therefore decline to consider the Applicant’s arguments surrounding constitutional invalidity of subsections 18(a) and 19(2) of the Atlantic Regulations. I agree. Moreover, as I have found that the DM committed a reviewable error in arriving at the Decision, this application for judicial review will be allowed, and it is unnecessary for the Court to

consider the invalidity argument. Absent exceptional circumstances, judicial restraint favours declining to address constitutional issues that are not necessary for the resolution of the parties’ dispute (Commission scolaire at para 108). The Applicant has not identified what I would consider to be any such exceptional circumstances in this case. D. If applicable, what remedies should the Court impose? [122] The Applicant seeks an order quashing the Decision and replacing it with a decision allowing him to have continued use of an MSO. The Respondent argues that, in the event the Court finds the DM to have erred, the appropriate remedy is to remit the matter back to the DM for redetermination, not to direct the DM to grant the Applicant’s MSO request. [123] As the Respondent correctly submits, the usual remedy in an application for judicial review is for the court to issue an order quashing the administrative decision and remitting it to the decision-maker for redetermination on the merits (Sharif v Canada (Attorney General), 2018 FCA 205 at para 53). An order directing an administrative decision-maker to reach a particular conclusion is only available in exceptional circumstances. [124] The Applicant argues that such circumstances exist in this case, because as argued by the applicant in Court File T-263-23 (heard with this application), that applicant’s request for an

extension of his MSO authorization was previously litigated, this Court determined in Robinson FC that the Charter was engaged, quashed the decision and sent it back for determination in accordance with the Court’s reasons, and yet the Deputy Minister redetermined that matter in a manner that was not in accordance with those reasons. The Applicant is concerned that, if the Decision in his matter is remitted, a similar failure to engage with his Charter rights will occur. [125] I am not satisfied that these circumstances presently represent a basis for the Court to depart from the usual practice of remitting the matter back for redetermination in accordance with the Court’s reasons. Vavilov recognizes that this practice cannot give rise to an endless merry-go-round of judicial reviews and subsequent reconsiderations, and identifies circumstances in which it may be appropriate for a court to depart from the usual practice (at para 142). However, this is not a matter where such departure is warranted by a conclusion that a particular outcome is inevitable, such that remitting the case would serve no useful purpose. Given the Court’s understanding that at present the Applicant retains the benefit of an MSO authorization, concerns such as delay, fairness, or urgency also do not warrant such a result at this stage. VI. Costs [126] As the Applicant has prevailed in this application,

he should be awarded costs on a party-and-party basis. The parties consulted in an effort to agree on a party-and-party figure to be awarded to whichever was the successful litigant, and they agreed upon the figure of $8000.00 inclusive of disbursements. This figure is comparable to the amount awarded in both Robinson FC and Boudreau. I agree that this is an appropriate result, and my Judgment will so provide. JUDGMENT IN T-2356-22 THIS COURT’S JUDGMENT is that: The Applicant’s application for judicial review is allowed, the Decision of the DM is set aside, and the matter is returned for redetermination in accordance with the Court’s Reasons. The Applicant is awarded costs of this application, set at $8000.00 inclusive of disbursements. “Richard F. Southcott” Judge

FEDERAL COURT

SOLICITORS OF RECORD DOCKET: T-2356-22 STYLE OF CAUSE: MOMBOURQUETTE v ATTORNEY GENERAL OF CANADA PLACE OF HEARING: HALIFAX, NOVA SCOTIA DATE OF HEARING: October 1, 2024 JUDGMENT AND REASONS: SOUTHCOTT J. DATED: december 23, 2024 APPEARANCES: Richard W. Norman Sarah Dobson For The Applicant Gwen MacIsaac Catherine McIntyre For The Respondent SOLICITORS OF RECORD: Cox & Palmer Halifax, Nova Scotia For The Applicant Attorney General of Canada Halifax, Nova Scotia For The Respondent