her majesty the queen in right of canada Appellant And: ocean choice international l.p., a limited partnership Respondent, 2022 NLSC 29

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Canada v. Ocean Choice International L.P. , 2022 NLSC 29 Date : March 1, 2022 Docket : 201901G6020 Between: her majesty the queen in right of canada Appellant And: ocean choice international l.p., a limited partnership Respondent Before: Justice Vikas Khaladkar On Appeal From: A Decision of the Provincial Court of Newfoundland and Labrador, File # 2016 NLPC 01816 A00070 dated the 29th day of August, 2019. Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: January 13, 2022; February 11, 2022; and February 22, 2022

Summary:

The Respondent’s registration as a limited partnership was rescinded before the Provincial Court hearing in this matter. Had the learnedProvincial Court Judge known that the Respondent has, in law, ceased to exist, he would have determined, as I have done, that the matteris moot and that there is no public interest value in exercising the Court’s discretion to provide a decision. In the result, the appeal isdismissed. Appearances: Mark A. Stares Appearing on behalf of the Appellant Patrick G. Reed Appearing on behalf of the Respondent Authorities Cited: CASES CONSIDERED: R. v. Lévesque, 2000 SCC 47; R. v.

W. (R.), 2011 NLCA 45; Borowski v. Canada (Attorney General), (SCC), [1989] 1 S.C.R. 342 STATUTES CONSIDERED: Limited Partnership Act, R.S.N.L. 1990, c. L-17; Fisheries Act, R.S.C. 1985, c. F-14; Criminal Code,R.S.C. 1985, c. C-46;

Interpretation Act, R.S.C. 1985, c. I-21 REASONS FOR JUDGMENT Khaladkar, J.: INTRODUCTION [1] On June 1, 2018 an Information was sworn alleging that the Respondent, a limited partnership, committed the followingoffence: did on or between February 4, 2018 and February 10, 2018, both dates inclusive, whilst using a Canadian registered or licensed vehicleoff the coast of Newfoundland and Labrador, fish for Greenland Halibut in the Northeast Newfoundland Slope Conservation Area duringa closed time, contrary to Section 87(1) of the Atlantic Fishery Regulations as varied by Variation Order 2017-306, thereby committingan offence punishable under

Section 78 of the Fisheries Act, R.S.C., 1985, c.F-14, as amended. [2] The Respondent is a limited liability partnership governed by the Limited Partnership Act, R.S.N.L. 1990, c. L-17. [3] The Respondent, in the Provincial Court of Newfoundland and Labrador, argued that it was not a legal entity capable of beingcharged and convicted under the Fisheries Act, R.S.C. 1985, c. F-14 and applied to quash the Information that had been laid against it. [4] The presiding Provincial Court Judge rendered an oral decision on August 29, 2019 and quashed the charge against theRespondent.

He stated as follows: In Newfoundland and Labrador as the decisions of Former Chief Justice Orsborn and my colleague Judge Porter confirm “A limitedpartnership is not a legal entity at common-law.” Judge Porter found that it’s not a legal entity pursuant to the Canadian andEnvironmental Protection Act. They both found that a limited partnership is merely a relationship of persons. It’s interesting to note thatboth of these decisions related to the same applicant. [5] The learned Provincial Court Judge recognized that the Criminal Code, R.S.C. 1985, c.

C-46 provides for a definition oforganization, but held that it did not apply to the Fisheries Act. He found that

section 80 of the Fisheries Act expressly refers to the jointand several liability of every “proprietor, owner, agent, tenant, occupier, partner or person in charge either as occupier or servant unlessotherwise stated”. [6] He found that there is a clear definition of the term “person” in the Fisheries Act and that it was not necessary to import thedefinition of that term from the Criminal Code. [7] The learned Judge held that the Fisheries Act, in sections 89-91, incorporates a number of matters by reference.

Subsection89(6) grants the ability to incorporate matters by regulation that are not specifically mentioned in subsections 89(1) to 89(5). The learnedJudge noted that no regulations had been promulgated that incorporated the Criminal Code definition of “organization”. [8] The learned Judge held that since a limited partnership is not a legal entity recognized by common law, and since limitedpartnerships are not captured by the specific wording in sections 78 and 80 of the Fisheries Act, there was no intention in the FisheriesAct to incorporate the Criminal Code definition of “organization”.

In the result he quashed the Information on the basis that it was a

nullity. [ 9 ] 55104 Newfoundland & Labrador Inc., the sole general partner of Ocean Choice International Limited Partnership (“OCI- LP”), was also charged with the same offence and entered a plea of guilty to the charge. It was convicted on January 14, 2020. [ 10 ] OCI-LP is a limited partnership formed under the laws of Newfoundland and Labrador. It is governed by a limited partnership agreement, made among 55104 Newfoundland & Labrador Inc., Ocean Choice PEI Inc., Ocean Choice International

(2005) Inc. and Landvis Canada Inc. The limited partnership agreement provides, inter alia , as follows: 3.3 Limitations on Authority of Limited Partners No Limited Partner shall: (

a) take

part in the control of the business of the Partnership; (

b) execute any document that binds or purports to bind the Partnership of the General Partner; (

c) purport to have the power or authority to bind the Partnership or the General Partner; (

d) undertake any obligation or responsibility on behalf of the Partnership; or … … 7.1 General Authority and Obligations of the General Partner The General Partner is authorized and obliged to manage, control, administer and operate the business and affairs of the Partnership, to represent the Partnership, and to make all decisions regarding affairs of the Partnership.

In so doing, the General Partner has all of the rights and powers of a general partner as provided in the Act, this Agreement, and as otherwise provided by law, and any action taken by the General Partner shall constitute the act of and serve to bind the Partnership. … [ 11 ] OCI-LP’s Registration Certificate (as a limited partnership) was cancelled by the Registrar of Companies on April 1, 2019.

Counsel for the Respondent was advised of this development on January 11, 2022, who immediately advised counsel for the Applicant. [ 12 ] Respondent’s counsel advised the Court, on January 13, 2022, the date set for the hearing of this matter, that the limited partnership’s registration had been cancelled. The Court asked counsel’s position regarding mootness and adjourned the hearing to February 11, 2022. Counsel were asked to file briefs outlining their positions on the issue of mootness raised by the Court.

I am grateful to counsel for their submissions. [ 13 ] Counsel agreed that the matter of the cancellation of the registration certificate was not brought to the attention of the learned Provincial Court Judge through the inadvertence of counsel. issues [ 14 ] Is the new evidence concerning the cancellation of the Respondent’s Registration Certificate organizing it as a limited partnership admissible? [ 15 ] If the new evidence concerning cancellation of the Respondent’s Registration Certificate is admissible, is the matter moot? [ 16 ] If the matter is not moot, or if it is moot but the Court has exercised its discretion to hear submissions nevertheless, is the definition of “organization” incorporated by reference from the Criminal Code into the Fisheries Act ?

Is the new evidence concerning the cancellation of the Respondent’s Registration Certificate organizing it as a limited partnership admissible? [ 17 ] The test for fresh evidence was set out by the Supreme Court of Canada in R. v. Lévesque , 2000 SCC 47 at paragraph 14 :

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases …

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

(3) The evidence must be credible in the sense that it is reasonably capable of belief; and

(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to haveaffected the result. [18] The charge faced by the Respondent is a quasi-criminal one with the potential for significant monetary penalties in the event ofconviction. While the evidence of the cancellation of the registration of the limited partnership’s Registration Certificate could, by duediligence, have been discovered, I am of the view that the inadvertence of counsel is sufficient justification for its admission. As notedby Green, C.J.N.L. in R. v.

W. (R.), 2011 NLCA 45, at paragraph 24: Appellate courts have often admitted new evidence not called at trial due to the inadvertence of counsel. … The party seeking theadmission of the new evidence must, however, establish that the omissions of counsel were not simply “the result of reasonableprofessional judgment”. … [19] I am satisfied that counsel did not know about the cancellation of the Registration Certificate until two days before this matterwas set for hearing. As such there is no doubt that the omission had nothing whatsoever to do with counsel’s litigation strategy.

The firstbranch of the rule for admission is, therefore, satisfied. [20] Whether or not the limited partnership existed at the time of the trial before the Provincial Court certainly bears upon whatmight have been a potentially decisive issue at trial. Had the Provincial Court Judge known that the limited partnership had ceased toexist, it might well have had a bearing upon his decision insofar as he would have questioned the mootness of the matter before him.Much as I did. [21] The Crown agreed, at the hearing, that there was no issue with respect to credibility of the proposed new evidence.

TheRegistration Certificate organizing the limited partnership in this case was cancelled by the Registrar of Companies. The cancellationtook place on April 1, 2019. The hearing before the Provincial Court Judge occurred on August 29, 2019. These facts are indisputable. [22] Whether or not the limited partnership was in existence at the time of the hearing is a fact that could well have affected theresult. [23] All four factors set out in R. v. Lévesque are satisfied.

I find that the evidence of the cancellation of the Registration Certificateof the limited partnership on April 1, 2019 is admissible for the purposes of this appeal. Is the matter moot? [24] In Borowski v. Canada (Attorney General), (SCC), [1989] 1 S.C.R. 342, Sopinka, J. wrote at paragraph 16: The approach in recent cases involves a two-step analysis. First, it is necessary to determine whether the required tangible and concretedispute has disappeared and the issues have become academic.

Second, if the response to the first question is affirmative, it is necessaryto decide if the court should exercise its discretion to hear the case. … I consider that a case is moot if it fails to meet the “livecontroversy” test. A court may nonetheless elect to address a moot issue if the circumstances warrant. [25] The limited partnership in this case ceased to exist some months before the matter was heard by the Provincial Court Judge.This is akin to a corporation being struck from the register of companies, or an accused individual dying. [26] A limited partnership is a creature of statute.

It does not exist at common law. It can only exist if it meets the criteria set out inthe Limited Partnership Act and it can only survive so long as its registration remains extant. [27] Limited partnerships are composed of an amalgam of general and limited partners. The general partner is charged with theprovision of day to day management services for the limited partnership’s business. Limited partners invest capital into the business butare constrained, by

section 7 of the Limited Partnership Act from providing any services. [28] In the context of an enterprise carrying out the business of fishing, the general partner would arrange for the provisioning of afishing vessel, securing the services of a master and crew.

The limited partners are disallowed by the Limited Partnership Act fromengaging in the provision of any services related to the fishing enterprise. [29] It is beyond controversy, in this case, that the limited partnership that was charged with the offence of fishing for Greenlandhalibut in a conservation area that did not have an open season for that species had ceased to exist before the matter was heard by theProvincial Court Judge. [30] The Limited Partnership had ceased to be.

Nevertheless, the general partner was charged with the same offence, entered a pleaof guilty thereto, and was sentenced. [31] The Crown argues that the Court should incorporate, by reference, the expanded definition of “person” including the term“organization” contained in the Criminal Code through the mechanism of the

Interpretation Act, R.S.C. 1985, c. I-21. The Crown goesfurther and asks that the term “organization” be deemed to include the partnership that was formed after the limited partnership wasdissolved by the rescission of its certification. The Crown seeks to have the Court “pierce the corporate veil” of this limited partnership –and to make the limited partners liable for the admitted wrong of the general partner.

[ 32 ] It is my opinion that upon the cancellation of the Respondent’s certification as a limited partnership there ceased to be a live controversy between the parties. The statutory creature charged with the offence had ceased to exist. That is analogous to a corporate defendant having been struck from the register of companies, or an accused individual dying before trial. [ 33 ] The matter is, therefore, moot. [ 34 ] I must now consider whether I should exercise my discretion to hear the appeal. [ 35 ] While the Crown may wish to have this Court’s assistance in declaring whether or not the

definitions contained in the Criminal Code are incorporated into the Fisheries Act , it is not a persuasive reason for proceeding with a moot appeal. It is open to the Crown to argue its position vis à vis the incorporation of

definitions by reference should a similar situation arise again in a matter where a live controversy exists. [ 36 ] With respect to the factor concerning judicial economy, I find that there are no special circumstances warranting the resolution of the dispute. As noted, the general partner was charged for the infraction, convicted and paid the penalty. To that extent the dispute has already been resolved. [ 37 ] A decision by this Court would not have any practical effect on the rights of the parties. [ 38 ] This is not an issue of a recurring nature.

It is doubtful that the same issue will ever arise again but, if it does, the Court will be able to deal with any outstanding issues at that time. [ 39 ] I find that the issue is not of such public importance that its resolution is in the public interest. [ 40 ] It follows, therefore, that judicial economy does not support the hearing of this moot appeal. [ 41 ] The third rationale for hearing a moot appeal revolved around the need for the Court to demonstrate a measure of awareness of its proper law-making function.

Pronouncing judgments in the absence of a dispute affecting the rights of the parties may be viewed as intruding into the role of the legislative branch of Government. Particularly so where what is sought is the reading into the Fisheries Act provisions that are not specifically contained within it. That exercise is best left to a case in which the parties’ positions as adversaries are enjoined.

Alternatively, Parliament could easily amend the definition of “person” to include “organizations”. [ 42 ] For the reasons set out above I decline to exercise my discretion to hear the appeal which I have determined to be moot on account of the Respondent having ceased to exist as a limited partnership. Accordingly, the appeal is dismissed. _____________________________ Vikas Khaladkar Justice