Kolody v Alberta (Environment and Sustainable Resource Development), 2016 ABQB 360

Court of Queen’s Bench of Alberta Citation: Kolody v Alberta (Environment and Sustainable Resource Development), 2016 ABQB 360 Date: 20160704 Docket: 1403 18041 Registry: Edmonton In the Matter of a Judicial Review Between: Morris Kolody, Ronnie Kozak, Virgil Kwiatkowski and Brian Eberts Applicants - and - Minister of Environment and Sustainable Resource Development Respondent Corrected judgment: A corrigendum was issued on July 4, 2016; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Memorandum of Decision of the Honourable Mr.

Justice J.W. Hopkins _______________________________________________________ [ 1 ] This is an application by Morris Kolody, Ronnie Kozak, Virgil Kwiatkowski and Brian Eberts [Applicants], all of whom were commercial fishermen in the Province of Alberta.

The Applicants are requesting judicial review of the decision of the then Minister of Environment and Sustainable Resource Development [Respondent], regarding the decision to close the commercial fishery throughout the Province of Alberta in August of 2014. [ 2 ] The Applicants make two interrelated arguments to argue that the decision by the Minister to close the commercial fishery

in Alberta was unlawful and should be set aside. [ 3 ] First, the Applicants argue that because the Fisheries (Alberta) Act , RSA 2000, F-16, as amended by 2014, c. 13, s. 49 [the Act], contemplates the existence of a commercial fishery in Alberta and the issuance of licenses, the decision by the Minister to no longer issue any commercial licenses, regardless of the merits of any license application, usurps the function of the legislature, and therefore represents an unlawful fettering of discretion. [ 4 ] Second, the Applicants argue that the decision to close the fishery was based primarily on the conclusions of the Colby Report, which pertain to the fishery only in certain portions of the province that do not relate to the Applicants; and as such, the decision to close the fishery throughout the whole of the province was based on irrelevant considerations. [ 5 ] The Applicants are seeking a declaration requiring that the Minister must continue to receive and consider on their individual merits all applications for commercial fishing licenses based on the legislated requirements and a declaration that any purported policy of refusing to permit further commercial fishing is invalid. [ 6 ] The Respondent argues, in response to the fettering argument, that the Act authorized the Minister to regulate the types of licenses as a whole (in this case commercial fishing licenses) by limiting the number and type of licenses to be issued.

The Respondent submits that the Minister’s decision not to issue any commercial fishing licenses is authorized by the Act. [ 7 ] The Respondent argues, in response to the irrelevant considerations argument, that the Colby Report was relevant to the Minister’s decision not to issue any further commercial fishing licenses, and that the decision was based upon additional Briefing Notes and relevant information before him that formed part of the certified record.

The Respondent contends the Minister’s decision not to issue any further commercial licences was a discretionary decision involving policy considerations and should only be set aside if it is unreasonable in the sense of being irrational, incomprehensible or an abuse of discretion, none of which, the Respondent argues, applies. ISSUES [ 8 ] I consider the issues in this judicial review to be as follows: 1) What is the applicable standard of review to the question raised? 2) Does the

interpretation by the Minister of the Fisheries (Alberta) Act that commercial licenses could no longer be issued for the commercial fishery meet the applicable standard of review? 3) Was the decision to close the commercial fishery province-wide based on relevant considerations and does it meet the applicable standard of review? ANALYSIS 1) What is the applicable standard of review to the questions raised? [ 9 ] The Applicants argue that the standard of review is one of correctness while the Respondent argues that that the standard of review is reasonableness.

The appropriate standard of review involves the interrelated issue of what questions are raised by this application. [ 10 ] The Applicants frame this application in terms of fettering discretion and irrelevant considerations. These are considered nominate grounds of review which relate to jurisdictional error, and as such, according to the Applicants, are to be reviewed on the basis of the correctness of the Minister’s decision. [ 11 ] The Respondent argues that the real issues are whether the

interpretation by the Minister of the home statute was reasonable and whether the decision as a whole was reasonable. [ 12 ] I recognize that judicial review applications in Alberta have involved challenges to administrative decisions based on the nominate grounds of fettering of discretion and irrelevant considerations (see, L’Hirondelle v Alberta (Sustainable Resource Development) , 2013 ABCA 12 , 542 AR 68; Lac La Biche (County) v Lac La Biche (Subdivision and Development Appeal Board) , 2014 ABCA 305 , 580 AR 368 [ Lac La Biche ]; and 1022049 Alberta Ltd v City of Medicine Hat , 2007 ABCA 108 , 404 AR 54 [ Medicine Hat ]). [ 13 ] These authorities do not directly address the nature of the relationship between fettering of discretion and irrelevant considerations as nominate grounds of review and the deferential approach to judicial review discussed in New Brunswick (Board of Management) v Dunsmuir , 2008 SCC 9 , [2008] 1 SCR 190 [ Dunsmuir ]. [ 14 ] From the authorities that do discuss the issue, I am of the view that a correctness based approach to nominate grounds of review for fettering of discretion and irrelevant considerations have largely been subsumed by the deferential approach articulated in Dunsmuir . [ 15 ] In Alberta (Director, Assured Income for the Severely Handicapped Program Delivery Services) v Januario , 2013 ABQB 677 , 574 AR 331 [ Januario ], Brown J (as he then was) considered the argument of whether the Appeal Panel fettered its discretion by allowing an AISH departmental policy to determine the outcome on the commencement date decision.

Brown J provided an extended discussion of whether the court should undertake a correctness analysis of the decision under review or whether, instead, such a review

of a statutory decision-maker’s home statute is entitled to deferential review based on the standard of reasonableness (at para 30). [16] Brown J reviewed the authorities on the fettering of discretion and concluded: 35 I am satisfied that Dr Q v College of Physicians & Surgeons (British Columbia), 2003 SCC 19, [2003] 1 SCR 226, perMcLachlin CJ resolves the question of where, within the analytical framework for judicial review, I am to address the Director’sargument about fettering discretion.

Since there appears to be little caselaw directly on point, and none from Alberta, it is worth makingexplicit the conclusion to be drawn from Dr Q. Dr Q marks a substantial shift in the law of how, and where within the analyticalframework of judicial review, a fettering argument is to be considered by a reviewing court. The fettering by an administrative tribunal ofits discretion was once a stand-alone nominate ground of judicial review within the category of abuse of discretion. If proven, itautomatically invalidated the tribunal's decision.

Now, however, the standard of review to be applied to the tribunal's reasons themselvesalso governs the standard by which the Court ought to consider a fettering argument. 36 In effect, this subsumes my consideration of the Director's fettering arguments into my review of the reasonableness of the AppealPanel's commencement date decision. Doing so is also consistent with Dunsmuir.

While fettering discretion, like any other ground ofabuse of discretion, has traditionally been understood as jurisdictional in nature (David P Jones & Anne S de Villars, Principles ofAdministrative Law, 5th ed. (Carswell, 2009) at 175, the Supreme Court in Dunsmuir confined true questions of jurisdiction or vires to“the narrow sense of whether or not the tribunal had the authority to make the inquiry.” This relegates the grounds of abuse of discretionto review for errors of law. (Pastore v Aviva Canada Inc, 2012 ONCA 642 (Ont.

C.A.) at para 25) And, as to questions of law, inDunsmuir the Supreme Court also held (at paras 60 and 70) that, aside from questions of general law “that [are] ... of central importanceto the legal system as a whole”, a standard of reasonableness (and not correctness) should apply. [17] Justice Brown was careful in his comments not to suggest that all grounds of nominate review should be subsumed in areasonableness analysis, since the reasonableness standard may be ill-suited for other traditional jurisdictional grounds for review suchas review for bad faith, improper purpose or acting under dictation (at para 38, citing Roncarelli v Duplessis, (SCC),[1959] SCR 121, per Rand J at 138). [18] I am satisfied from Januario that review for fettering of discretion now forms a part of the analysis for reasonableness, andnot as a separate nominate grounds for review. [19] While there is no Alberta authority considering whether it remains appropriate to consider irrelevant considerations as anominate ground of review, these arguments were addressed by the Federal Court of Appeal in JP Morgan Asset Management(Canada) Inc. v Minister of National Revenue, 2013 FCA 250, [2014] 2 FCR 557, and in the fisheries’ context, Malcolm v Canada(Minister of Fisheries and Oceans), 2014 FCA 130, 460 NR 357 [Malcolm]. [20] In JP Morgan at para 74, Stratas JA stated: At one time, the taking into account of irrelevant considerations and the failure to take into account relevant considerations werenominate grounds of review — if they happened, an abuse of discretion automatically was present.

However, over time, calls arose fordecision-makers to be given some leeway to determine whether or not a consideration is relevant: see, e.g., Baker v Canada (Minister ofCitizenship and Immigration), (SCC), [1999] 2 SCR 817 at paragraph 55; Dr. Q. v. College of Physicians &Surgeons (British Columbia), 2003 SCC 19, [2003] 1 S.C.R. 226 at paragraph 24. Today, the evolution is complete: courts must defer todecision-makers’

interpretations of statutes they commonly use, including a decision-maker’s assessment of what is relevant or irrelevantunder those statutes: Dunsmuir, supra at paragraph 54; Alberta (Information and Privacy Commissioner) v Alberta Teachers’Association, 2011 SCC 61, [2011] 3 SCR 654, supra at paragraph 34. Accordingly, the current view is that these are not nominatecategories of review, but rather matters falling for consideration under Dunsmuir reasonableness review: see Antrim Truck Centre Ltd.v.

Ontario (Ministry of Transportation), 2013 SCC 13 at paragraphs 53-54. [21] In Malcolm at para 35, Mainville JA stated: A discretionary policy decision that is made in bad faith or for considerations that are irrelevant or extraneous to the legislative purposeis unreasonable by that very fact. Such a decision can also be unreasonable if it is found to be irrational, incomprehensible or otherwisethe result of an abuse of discretion.

The ultimate question in judicially reviewing the Minister’s decision in this case is to determinewhether the decision falls within a range of reasonable outcomes having regard for both the context in which the decision was made andthe fact that the decision itself involves policy matters in which a reviewing court should not interfere by substituting its own opinion tothat of the Minister's.

It is with these considerations in mind that the reasonableness of the Minister's decision should be determined. [22] Having regard to the foregoing authorities, I am of the opinion that a review for irrelevant considerations is better approachedunder the rubric of a reasonableness review. Such an approach is more consistent with a deferential approach to the review of ministerialdiscretion since Dunsmuir.

In my opinion, review for irrelevant considerations forms a part of the reasonableness of the decision-makersdiscretion, since a decision that is based on irrelevant factors will ipso facto be deemed unreasonable. [23] Based on what follows, I do not accept the contention by the Applicants that the standard of review is a matter of settled lawbased on the authorities in Lac La Biche and Medicine Hat. [24] The post-Dunsmuir approach to the classification of the question for the purposes of determining the standard of review wasaccurately described in Alliance Pipeline Ltd v Smith, 2011 SCC 7 at paras 24-26, [2011] 1 SCR 160, where Fish J stated:

Pursuant to Dunsmuir: ... the process of judicial review involves two steps. First, courts ascertain whether the jurisprudence has already determined in asatisfactory manner the degree of deference to be accorded with regard to a particular category of question. Second, where the firstinquiry proves unfruitful, courts must proceed to an analysis of the factors making it possible to identify the proper standard of review.[para. 62] Even when resort to these factors is required, it may not be necessary to consider them all (para. 64).

Accordingly, reviewing judges can usefully begin their analysis by determining whether the subject matter of the decision before themfor review falls within one of the non-exhaustive categories identified by Dunsmuir. Under that approach, the first step will suffice toascertain the standard of review applicable in this case. Under Dunsmuir, the identified categories are subject to review for either correctness or reasonableness.

The standard of correctnessgoverns: (1) a constitutional issue; (2) a question of “general law ‘that is both of central importance to the legal system as a whole andoutside the adjudicator's specialized area of expertise” (Dunsmuir, at para. 60 citing Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63,[2003] 3 S.C.R. 77, at para. 62); (3) the drawing of jurisdictional lines between two or more competing specialized tribunals; and (4) a“true question of jurisdiction or vires” (paras. 58-61). On the other hand, reasonableness is normally the governing standard where thequestion: (1) relates to the

interpretation of the tribunal’s enabling (or “home”) statute or “statutes closely connected to its function, withwhich it will have particular familiarity” (para. 54); (2) raises issues of fact, discretion or policy; or (3) involves inextricably intertwinedlegal and factual issues (paras. 51 and 53-54). [25] The Applicant relies on the Lac La Biche decision to argue that the decision by the Minister to no longer issue licenses tocommercial fisheries is jurisdictional in nature and therefore should be reviewed on a correctness standard (at paras 11-12). [26] The Respondent argues that the issue of whether the Minister may address categories of fishers as a whole, and limit the typeof licences issued, is not truly jurisdictional in nature and is a question of statutory

interpretation involving the Minister’s home statute. [27] In Dunsmuir at para 59, the Court discussed jurisdictional questions in the following terms: Administrative bodies must also be correct in their determinations of true questions of jurisdiction or vires. We mention true questions ofvires to distance ourselves from the extended

definitions adopted before CUPE (SCC), [1979] 2 SCR 227]. It isimportant here to take a robust view of jurisdiction. We neither wish nor intend to return to the jurisdiction/preliminary question doctrinethat plagued the jurisprudence in this area for many years. “Jurisdiction” is intended in the narrow sense of whether or not the tribunalhad the authority to make the inquiry. In other words, true jurisdiction questions arise where the tribunal must explicitly determinewhether its statutory grant of power gives it the authority to decide a particular matter.

The tribunal must interpret the grant of authoritycorrectly or its action will be found to be ultra vires or to constitute a wrongful decline of jurisdiction: D. J. M. Brown and J. M. Evans,Judicial Review of Administrative Action in Canada (loose-leaf ed.), at pp. 14-3 to 14-6. An example may be found in United TaxiDrivers’ Fellowship of Southern Alberta v. Calgary (City), [2004] 1 S.C.R. 485, 2004 SCC 19. In that case, the issue was whether theCity of Calgary was authorized under the relevant municipal acts to enact bylaws limiting the number of taxi plate licences (para. 5,Bastarache J.).

That case involved the decision-making powers of a municipality and exemplifies a true question of jurisdiction or vires.These questions will be narrow. We reiterate the caution of Dickson J. in CUPE that reviewing judges must not brand as jurisdictionalissues that are doubtfully so. [28] In my view, the

interpretation by the Minister’s decision whether to issue licenses to commercial fisherman does not fallwithin the narrow category of cases that can be classified as truly jurisdictional in nature. The danger when the

interpretation of a homestatute is involved, as is the case here, is that any decision may be challenged on the basis that the decision-maker did not have authorityor jurisdiction to make the determination that it did. The Supreme Court of Canada in Dunsmuir and the subsequent decision of Alberta(Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 SCR 654, 2011 SCC 61 [ATA], have explicitly cautioned against finding issues that involve the

interpretation of the decision-makers home statute to be jurisdictional innature. [29] The Court in ATA asked whether, for the purposes of judicial review, questions of true jurisdiction exist, and stated that itshould be presumed that where the question is one of an

interpretation by a decision-maker of its own statute or statutes closelyconnected to its function, with which it will have particular familiarity, the standard of reasonableness applies (at para 34). [30] In Agraira v Canada (Minister of Public Safety and Emergency Preparedness), 2013 SCC 36 at para 50, [2013] 2 SCR 559[Agraira], a decision involving a review of ministerial decision-making, the Supreme Court of Canada referred to Dunsmuir at para 53,which held that where questions of fact, discretion or policy arise, a standard of deference will usually apply automatically.

The Courtfurther reiterated that deference should be shown to ministerial decision-makers when interpreting its home statute (Dunsmuir at paras53-54). [31] The Applicants rely on the pre-Dunsmuir decision of Medicine Hat at para 11, to argue that the question of whether thedecision was based on irrelevant considerations relates to whether the decision-maker lost jurisdiction, which is a question of law,reviewable on a correctness standard. [32] The Respondent argues that the decision in question involves a question of policy, which ordinarily attracts a standard ofdeference.

The Respondent argues decision-makers are entitled to a margin of appreciation, and that decisions that involve policy shouldbe assessed on a reasonableness standard. [33] The reasons for the Minister’s decision involves questions of fact, discretion or policy, which ordinarily attracts areasonableness review (Dunsmuir at paras 26, 53; also cited in Sierra Club Canada v Ontario (Minister of Natural Resources), 2011ONSC 4655 at para 33, 285 OAC 1).

[34] Discretionary decisions are entitled to considerable deference provided they are exercised according to statute.

Discretionarydecisions should be reviewed based on the existence of justification, transparency and intelligibility in the decision-making process.Discretionary decisions are also to be reviewed on a standard of reasonableness to determine whether the decision falls within a range ofpossible, acceptable outcomes (Dunsmuir at para 47; cited in Skypower CL I LP v Ontario (Minister of Energy), 2012 ONSC 4979 atpara 48, 298 OAC 204). [35] The ultimate task of a Court reviewing a Ministerial decision is to determine whether the decision falls within a range ofreasonable outcomes having regard for both the context in which the decision was made and the fact that the decision involves policymatters for which a reviewing court should not substitute its opinion (Malcolm at para 35). [36] Having regard to the foregoing, in my view, the reasons for the Minister’s decision to close the fishery, and the related issueof irrelevant considerations, should be reviewed on a standard of reasonableness. 2) Does the

interpretation by the Minister of the Fisheries (Alberta) Act thatcommercial licenses could no longer be issued for the commercial fishery meet theapplicable standard of review? [37] The Act provides for the issuance of commercial fishing licenses based on compliance with the Act and regulations. Thelegislation does not explicitly permit the closure of the fishery in Alberta. [38] Section 1(1)(

b) defines “commercial fisher” as a “holder of a licence under this Act.” [39] Section 10(1) provides that “a person shall not engage in fishing unless that person holds a licence authorizing that particularfishing.” [40]

Section 12 of the Act provides that the “Minister or a person authorized by the Minister may issue licences” provided persons“meet the requirements of the regulation and pay the required fee.” The Fisheries (Ministerial) Regulation, AR 220/1997 provides thepayment of fees for a license. [41] Section 13(1) provides that the Minister, subject to the regulations, may a) “limit the number and type of licenses to beissued” and b) “if the number of licenses is limited, establish how the licenses are to be allocated.” [42] Section 43(1)(

a) authorizes the Lieutenant Governor in Council to make regulations “establishing the categories of licencesand activities to be authorized by licences and classification of licences.” The General Fisheries (Alberta) Regulation, AR 203/1997establishes different categories of licenses including commercial fishing licenses. This Regulation also specifies the terms and conditionsof a license. [43] The modern approach to statutory

interpretation is provided by Rizzo & Rizzo Shoes Ltd (Re), (SCC),[1998] 1 SCR 27 at para 21, 154 DLR (4th) 193: Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context and in their grammaticaland ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament. (Citing, E Driedger, Construction of Statutes, 2nd ed (Toronto, Ontario: Butterworths, 1983) at 87. See also, Agraira, above, at para 64). [44] The Applicants argue that the policy to no longer issue commercial fishing licences contravenes the statute because it fails toconsider individually relevant criteria for the granting of licenses.

In particular, it fetters the discretion of the decision-maker because thestatute and the regulation contemplate issuing licences, provided the preconditions of the statute are met.

The Applicants argue thedecision not to issue permits without considering the merits of the application is invalid, and that the Minister must continue to considerand grant commercial fishing licences. [45] The Respondents argue that the legislation, when read in conjunction with its object and purpose to regulate the fishery withinAlberta, permits the Minister to regulate the types of fishers as a whole and limit the types of licenses issued.

In particular, the discretionprovided under the legislation is sufficiently broad to permit the Minister not to be required to issue licences to a category of fishery. [46] According to the Applicants, the inclusion of the term “may” under

section 12 permits officials to exercise licensing discretionto issue licences or not to issue licences and impose licence conditions, but does not permit the Minister to refuse to issue any licences. [47] The Applicants argue the existence of the discretion confers upon the Minister a requirement to exercise it. According to theApplicants, “the very existence of discretion implies that it can and should be exercised differently in different cases” (Lac La Biche atpara 14). [48] According to the

interpretation advanced by the Respondents, that the Minister “may” issues licences under

section 12 of theAct is permissive, and does not require the Minister to issue licences, or licences to specific individuals. [49] The Respondent argues sections 12 and 13 read together do not require the Minister to issue any specific types of licenses, orlicenses to any specific individuals. The Respondent notes that

section 13 which authorizes the Minister to place limits on licensenumbers and types and to determine allocations, while

section 12 authorizes the Minister to limit the issuance of licences within thelimitations the Minister establishes. Nowhere does it say that the Minister is required to issue licences. [50] I am satisfied that the use of the term “may” in the legislation is indeed permissive, and implies that the power need not beexercised by the Minister. I do not agree the use of the term in the context of the legislation requires the Minister to issue commercial

licences, or to consider licences on an individual basis as the Applicants suggest is required by Lac La Biche, above. [51] The wording of the licensing provisions provides some guidance in determining whether the Minister is authorized to nolonger issue individual permits to commercial fishery. The term “may” with respect to the issuance of licences in sections 12 and 13 ofthe Act is considered to be permissive and empowering (see, s. 28(2)(c),

Interpretation Act, RSA 2000, c I-8). [52] The use of the term “may” to confer a power normally indicates that the recipient of the power has discretion whether or notto exercise that power (Alberta (Minister of Justice) v Sykes, 2011 ABCA 191, 505 AR 380, cited in R Sullivan, Sullivan on theConstruction of Statutes, 6th ed (Markham, Ontario: LexisNexis Canada, 2014) at paras 4.70 to 4.74). [53] A further review of the purpose of the licencing provisions, the legislative scheme, and the context of the legislation alsosupports the conclusion that the discretion conferred on the Minister is permissive and does not require the Minister to issue individuallicences for the commercial fishery (see, Rizzo & Rizzo Shoes above). [54] While the Act is silent with respect to the objects and purposes of the legislation, the licencing power is an important toolavailable to manage the resource.

In the context of the federal fishery, in Comeau’s Sea Foods Ltd v Canada (Minister of Fisheries &Oceans), (SCC), [1997] 1 SCR 12 at para 37, 206 NR 363 (QL), Major J held, “Licensing is a tool in the arsenal ofpowers available to the Minister . . . to manage fisheries.” Licensing restricts entry into the commercial fishery, the number ofparticipants and other aspects of the commercial fishery. [55] The legislative context underpinning the licencing power is the broad authority and discretion under the legislation to managefisheries in the public interest. The Alberta Natural Resources Act, SC 1930, c 3,

section 9, provides that the Province shall have rights todispose of all rights of fishery, including by licence, subject to the exercise by the Parliament of Canada of its legislative jurisdiction. TheMinister is entitled to consider social and economic factors in managing and allocating the fishery resource (see, Malcolm at para 52, inthe federal context). [56] The legislation provides a comprehensive regulatory scheme based on licensing. No person shall engage in fishing without alicence (Act, s 10). The Minister may issue licences according to the regulations (Act, s 12).

The Minister is entitled to limit the numberof and types of licences, and if the licences are limited, establish how those licences are to be allocated (s 13). Furthermore, while theMinister has broad discretion under the legislation to determine how licences are allocated, the legislation is silent as to whether theMinister has the discretion whether or not to issue licences to a particular class of licensees. [57] While the Act is not explicit on this point, in my view the discretion to grant a licence includes the power not to grant licencesto a category of Applicants.

The discretionary licencing powers conferred on the Minister can reasonably be interpreted as sufficientlybroad for the Minister to regulate the fishery as a whole by permitting the Minister not to issue a certain type of licence. It is reasonableto conclude from an examination of the purpose, scheme and context of the legislation that the Minister may validly choose not to issueany commercial licences to achieve the regulatory objects and purposes of fisheries management in Alberta. This does not constitute anillegal fettering of discretion and is a reasonable

interpretation of the legislation by the Minister. 3) Was the decision to close the commercial fishery province-wide based onrelevant considerations and does it meet the applicable standard of review? [58] The analysis at this stage relates to whether or not, based on a review of the record, the decision to issue licenses meets theapplicable standard of reasonableness.

A decision is reasonable if it satisfies the criteria of “justification, transparency and intelligibility”and falls within a “range of possible, acceptable outcomes which are defensible with respect to facts and law” (Dunsmuir, at para 47). [59] It is necessary to review of the record of decision before determining whether the decision by the Minister was a reasonableone. [60] Alberta has a relatively small fishery because of the small amount of habitat, since Alberta does not have a large amount ofsurface water. By the mid-1990s, the demand for a limited resource resulted in serious declines.

In allocating the resource, theGovernment determined that conservation is the highest priority use, followed by First Nations and Metis fishing rights. Recreational useof the fishery then takes priority over the commercial fishery (Government of Alberta, Fish Conservation Strategy for Alberta, 2006-2010). [61] There are eight commercial fishing zones in Alberta, Zones A to H. I point out these zones are administrative creations andhave no basis in law. Zone E is by far the largest of these zones, accounting for approximately 75% of the commercial fish harvestprovincially.

The Applicants were all commercial fishermen in Zone C. [62] The Applicants were informed of the decision to close commercial fishery by a letter dated June 24, 2014 from Shannon Flint,Assistant Deputy Minister. The letter stated that there were concerns for several years over the sustainability of commercially fishedlakes, apportionment of fish between user groups and the difficulties of avoiding sport-fish by-catch. [63] The letter related the decision that after August 1, 2014 no further commercial fisheries will be allowed.

The letter stated thatto understand the concerns, the Government commissioned a third party review of commercial fishing on selected lakes that wasprepared and written by Dr. Peter Colby [Colby Report]. [64] The letter concluded: Environment and Sustainable Resource Development has accepted this report and based on additional provincial assessments haveconcluded that the long term sustainability of commercially fished lakes is not viable. [65] The Colby Report was commissioned by the Province and the terms of reference were agreed upon by fishermen in Zone E.

The Colby Report reviewed twelve lakes in Zone E to determine whether the management of commercial fisheries were scientifically sound, promoted the maintenance of sustainable populations of all species of fish, and were consistent with internationally-accepted protocols for monitoring and administering sustainable commercial fisheries. [ 66 ] The Colby Report, which was completed in October 2012, identified three problems with the sustainability of the commercial fishery: arguments over sharing fish between fisheries managers, sport, aboriginal, and commercial fishermen are bitter, confrontational, and result in unsustainable fisheries; the by-catch of popular sport fish (mainly Walleye and Pike) in commercial gill-nets targeting Lake Whitefish is the core problem causing allocation disputes, overharvests and economic unsustainability; and, current fisheries are economically unsustainable for commercial fishermen and for the management agency (pages 83-84). [ 67 ] The assessment of sustainability of fisheries included in the Colby Report was found to be “largely unsustainable.” It also recommended that “allowable harvests, closures and by-catch strategies appear to be more sustainable, but cannot be assessed because they have yet to be fully implemented ....” (page 72). [ 68 ] The report also summarized the results of conversations with Alberta fisheries biologists and managers based on a draft copy of the Sustainability Report and were asked to comment on the three main questions.

The report stated bluntly: Few commercial fisheries are sustainable in Alberta. Many are on lakes that are far too small, and many are on popular and accessible lakes that have severe conflicts between stakeholders. The only sustainable commercial fisheries may be the very few large, remote lakes with little sport or First Nations fishing pressure (page 95). [ 69 ] The fisheries biologists and managers stated that: The costs of monitoring and enforcement of the Lakes is unsustainable....

The economic benefits of the commercial fisheries do not approach the costs of management, especially for the high conflict lakes and the small lakes (page 96). [ 70 ] The comments of the fisheries biologists and managers concluded, “Government must accept that a commercial fisheries buy- out makes economic sense when faced with the ridiculously high costs of managing these fisheries” (page 97). [ 71 ] Following the release of the Colby Report, the commercial fishers in Zone E formally rejected the proposed solutions such as the use of trap nets to catch the target species. [ 72 ] Problems with the decline of fisheries continued.

Representatives of Zone E fisherman contacted their MLA, Pearl Calahasen, to initiate talks over compensation with the Minister, indicating “the commercial fishery is done and cannot be resurrected” (E-mail dated November 20, 2013). [ 73 ] In February and March of 2013, the Fisheries Management Branch completed a review of the history, management and status of the remaining lakes across the Province not specifically addressed in the Colby Report. A total of 103 lakes were reviewed.

Of the 93 fisheries, 8 were assessed as potentially sustainable, 9 were assessed as potentially sustainable if major changes to the existing fisheries were implemented, and 76 were considered unsustainable. [ 74 ] The assessment of Zone C lakes concluded of the 13 lakes for which there was sufficient information to assess, commercial fishing was unsustainable on 10 of the lakes, potentially unsustainable with major changes on one of the lakes, and potentially sustainable on two of the lakes. [ 75 ] Discussions by the Department of Environment and Sustainable Resource Development about the future of the commercial fishery and the potential for a buy-out continued into early 2014. [ 76 ] On April 22, 2014, officials from the Department authored a Briefing Note to Minister Campbell in advance of an April 28, 2014 meeting between the Minister, representatives of Zone E and the MLA Pearl Calahasen.

The purpose of the meeting was to discuss the opportunity for fishers within Zone E to be bought out.

The key points summarized in the Briefing Note were that the current status of commercial fisheries in several lakes in Alberta (according to both fisheries management staff and the Colby Report) is unsustainable and that the Department will work to develop a plan to buy-out commercial fishermen province-wide. [ 77 ] The Briefing Note indicated that the Department reviewed and accepted the recommendations of the Colby Report and that commercial fishermen rejected the use of trap nets as an alternative means to ensure the sustainability of the fishery, and should instead be bought out. [ 78 ] The Briefing Note indicated: A buy-out program will alleviate the conflict in apportionment and allocation between commercial, recreational and aboriginal fisheries, and provide more stability and sustainability of fisheries to more numerous and higher priority user groups, resulting in a more representative social and economic benefit to the people of Alberta . [ 79 ] The Briefing Note also indicated, “A small number of fisheries are sustainable on a commercial scale.

Fishermen who are asked to be bought out may resist compensation on these grounds.” [ 80 ] Following the April 28, 2014 meeting, the Minister publicly announced that Alberta’s commercial fishery would be closed.

On June 19, 2014, the Minister signed the Briefing Note, dated June 13, 2014, approving the recommendations to close commercial fisheries on all lakes by August 2014. [ 81 ] The Applicants contend that the Minister’s recommendation, contained in the June 13, 2014 Briefing Note, does not provide an adequate explanation for the decision and merely asserts that the Minister has the legal right to close the fishery. Rather, the Applicants assert that the letter from Shannon Flint, dated June 24, 2014, is the only indication of the Minister’s reasons for decision, and

that decision relied on the conclusions of the Colby Report. [ 82 ] The Applicants assert that the reliance of the Minister on the Colby Report is an irrelevant consideration to the extent that it was used to justify the closure of the fishery outside of Zone E. [ 83 ] The Applicants refer to e-mail comments from senior officials in the department that indicate the Colby Report was the basis for the decision to close the fishery province-wide.

The Applicants point to comments indicating the difficulties encountered in Zone E were exceptional, and were not representative of the circumstances of the commercial fishery province-wide. [ 84 ] In an e-mail on July 6, 2012, the Assistant Deputy Minister expresses the view that the Department is “not having the same issues in other zone’s begs the question of as to why things are so different only in zone E.” [ 85 ] Further, a provincial consultation

summary relating to Zones C and D indicated that meeting for the most

part in that area “with mutual understanding, respect and agreement over the last several years.” The Colby Report states that many commercial fishermen work within the current structure of management, and with the exception of Zone E, do not call the Minister when dissatisfied. [ 86 ] The Respondent states that the decision to close the fishery province-wide should not only be confined to the reasons given in the June 24, 2014 letter informing the Applicants of the decision, but should be based on the record of the Minister’s decision of the whole, including reasons that could have been given to justify the decision. [ 87 ] The Respondent argues that the Colby Report was relevant to the decisions to close the fishery province-wide, since the considerations that relate to Zone E pertain to 75% of the fishery in Alberta.

The comments of fisheries biologists and managers were equally applicable to the management of the fishery of the province as a whole. [ 88 ] The Respondent submits that the letter of Shannon Flint itself referred not only to the Colby Report but also to the additional assessment of fisheries, which concluded that commercial fishing was not sustainable in 76 of the 93 lakes province-wide. [ 89 ] The Respondent refers to the Briefing Note prepared for the meeting between the Minister, the fishermen in Zone E and MLA Pearl Calahasen concluded that the province-wide closure of the commercial fishery through a buy-out would alleviate the conflict in apportionment and allocation. [ 90 ] The review of the Briefing Note and the record, the Respondent contends, led the Minister to reasonably conclude that, the commercial fishery had very limited commercial potential. [ 91 ] The reasonableness of the decision is to be reviewed on the entire record.

This record of the Minister’s decision includes the Colby Report, the additional assessment of the province-wide fishery that was completed by the Department, various intra-departmental e-mails deliberating on the subject of closure, and the Briefing Notes provided by the Department. [ 92 ] I am satisfied that while the recommendation that was signed by the Minister did not provide an explicit rationale for the decision to close the fishery, earlier conversations with fishermen from Zone E that resulted in the decision by the Minister to close the fishery was the subject of a Briefing Note dated April 22, 2014.

The Briefing Note was the basis for considering the alternatives of proceeding with the use of trap nets versus a buy-out during that conversation. [ 93 ] When the Minister chose the alternative of a buy-out, it is reasonable to conclude that the Minister was acting on the earlier recommendation contained in the April 22, 2014 Briefing Note.

Where the Minister is provided with a detailed Briefing Note, and while the Minister does not give separate reasons for decision, it is reasonable to conclude that Minister chose the option that he did, based on the contents of the backgrounder ( Kimoto v Canada (Attorney General) , 2011 FC 89 at para 34 , 382 FTR 287).

This April 22, 2014 Briefing Note forms part of the record of the Minister’s decision. [ 94 ] The Briefing Note dated April 22, 2014 concluded that the province-wide buy-out would alleviate the conflict in apportionment and allocation between commercial, recreational and aboriginal fisheries, and provide a more stable and more sustainable fishery to a more numerous and higher priority group of users, resulting in a more representative social and economic benefit. [ 95 ] Based on the discretionary and policy nature of the decision, the Minister may provide only limited reasons and the Court may consider those reasons that could have been offered by the Minister in conducting a reasonableness review ( Malcolm at para 59 ; citing ATA at para 54.

See also, Agraira at paras 57-58 ). The notion of deference in this context requires a respectful attention to the reasons offered or the reasons which could be offered for the Minister’s decision.

Furthermore, the Court must first seek to supplement the reasons for decision before it seeks to subvert them ( Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board) , 2011 SCC 62 at para 12 , [2011] 3 SCR 708 [ NLNU ], citing David Dyzenhaus, “The Politics of Deference: Judicial Review and Democracy,” in Michael Taggart, ed, The Province of Administrative Law , (1997), 297 at 304). [ 96 ] While the focus of the deliberations by the Minister was initially on the fishermen in Zone E, following the release of the Colby Report, the official record shows that the Department undertook an analysis of all of the fisheries in Alberta to determine their sustainability.

It became clear from this analysis, that while some fisheries were potentially sustainable, further changes would be required to even those fisheries that were considered potentially commercially sustainable. [ 97 ] The Colby Report, which included comments on the fishery as a whole, was in any event a very relevant consideration to the management of the commercial fishery throughout the entire province, given the importance of Zone E to the overall fishery province- wide. [ 98 ] While there were differences between the various fisheries management zones, the provincial assessment as well as comments of fisheries biologists and managers in the Colby Report confirmed that there were difficulties in allocation between the different fisheries and the costs of managing the commercial fishery that were equally applicable on a province-wide basis.

[ 99 ] As far as the overall reasonableness of the decision is concerned, as stated previously, the Minister has broad discretion and may account for broader social and economic factors when deciding to manage and allocate the fisheries resource, including the closure of the commercial fishery. The contents of the April 22, 2014 indicate that the Minister took into account these broad considerations in making a decision to close the commercial fishery province-wide. [ 100 ] The Applicants argue that if those fishermen within Zone C were considered by the Minister, a different conclusion may have been reached.

As noted earlier, the fishery zones, however, are an administrative creation and have no independent status in law.

The Minister is not required to consider each fishery zone on an individual basis, particularly given the relatively small size of the commercial fishery in the zones other than Zone E in comparison to the overall provincial fishery. [ 101 ] While the Minister may have considered different alternatives, including leaving some of the fisheries open, “if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the acceptable range of outcomes, the Dunsmuir criteria are met” ( NLNU at para 16 ).

It follows that the decision to close the commercial fishery province-wide falls within the acceptable range of outcomes that was rationally supported on the record. [ 102 ] Overall, the decision by the Minister to close the province-wide fishery rather than leave some of the fisheries open was rational or comprehensible when reviewing the record as a whole.

In my opinion, the Minister’s reliance on the Colby Report to make decisions on a province-wide basis was justified, particularly as it was supplemented by the province-wide assessment and broader considerations related to the costs of management and enforcement and allocations with other fisheries. I am satisfied that the decision to close the commercial fishery province-wide was not based on irrelevant considerations and was reasonable. CONCLUSION [ 103 ] The relief sought by the applicants is denied. The parties may speak to costs, unless these can be agreed upon. Heard on the 21 st day of October, 2015.

Dated at the City of Edmonton, Alberta this 28 th day of June, 2016. J.W. Hopkins J.C.Q.B.A. Appearances: Michael F. Donovan, Q.C. for the Applicants Sean McDonough and Josh de Groot for the Respondent _______________________________________________________ Corrigendum of the Memorandum of Decision of The Honourable Mr. Justice J.W. Hopkins _______________________________________________________

[ 104 ] The style of cause has been changed to reflect the granting of an application made by consent to amend the style of cause at the start of the proceedings on October 21, 2015 as follows: Applicant, Ronald Kozak changed to Ronnie Kozak Respondent, Minister of Environment and Sustainable Development changed to Minister of Environment and Sustainable Resource Development