Byron Oxford Applicant And: Her Majesty the Queen in right of newfoundland v. labrador as represented by the minister of municipal affairs and, 2020 NLSC 102

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Oxford v. Newfoundland and Labrador (Municipal Affairs and Environment) , 2020 NLSC 102 Date : July 21, 2020 Docket : 201904G0247 Between: Byron Oxford Applicant And: Her Majesty the Queen in right of newfoundland and labrador as represented by the minister of municipal affairs and environment Respondent Before: Justice Richard D. LeBlanc Place of Hearing: Corner Brook, Newfoundland and Labrador Date of Hearing: June 30, 2020

Summary: Pursuant to the Policy set up by the Respondent for the relocation of the Community of Little Bay Islands, the Applicant sought to be recognized as a Commercial Property Owner so that he could be entitled to relocation assistance. The Applicant is an active fisherperson who owns commercial property in Little Bay Islands but he and his family do not actually live there. The Respondent deemed the Applicant did not fall within the definition of Commercial Property Owner. On judicial review, it was found that the Respondent’s decision was unreasonable in that its reasons failed to provide the necessary justification, transparency and intelligibility.

Appearances: Dean A. Porter Appearing on behalf of Byron Oxford Trisha L. McCarthy Appearing on behalf of Her Majesty the Queen as Represented by the Minister of Municipal Affairs and Environment Authorities Cited: CASES CONSIDERED: Flynn v. Newfoundland and Labrador , 2018 NLSC 29 ; Russell v. Newfoundland and Labrador (Municipal and Intergovernmental Affairs) (4 November 2019), Corner Brook 2017 04G 0268 (NLSC); Fudge v. Newfoundland and Labrador (Minister of Municipal Affairs) , 2013 NLTD(G) 14; Tucker v.

Newfoundland and Labrador (Municipal Affairs) , 2019 NLSC 182 ; Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 ; Bell Canada v. Canada (Attorney General) , 2019 SCC 66 ; Canada Post v. Canadian Union of Postal Workers , 2019 SCC 67 ); Dunsmuir v. New Brunswick , 2008 SCC 9 ; and David Suzuki Foundation v. Canada - Newfoundland and Labrador Offshore Petroleum Board , 2020 NLSC 94 . STATUTES CONSIDERED: Evacuated Communities Act, 2016 , S.N.L. 2016 E-15.1. RULES CONSIDERED: Rules of the Supreme Court , 1986 , S.N.L. 1986, c. 42, Sch. D .

REASONS FOR JUDGMENT LeBlanc, J. : INTRODUCTION [ 1 ] In February 2017, the Respondent approved the relocation of the Community of Little Bay Islands. [ 2 ] The Applicant is a property owner in Little Bay Islands.

He does not claim to be a permanent resident as defined under the Community Relocation Policy (the “Policy”) but he applied for relocation assistance as a “Commercial Property Owner”. [ 3 ] On February 21, 2019, the Respondent determined that the Applicant was not a Commercial Property Owner pursuant to the Policy despite finding that he owned fishing property in Little Bay Islands, that he was an active fisherperson and that he had “limited operational activity” on that property.

It is that decision that the Applicant now seeks to have reviewed by this Court. background [ 4 ] The Province’s resettlement process is a policy adopted to facilitate the relocation of residents from one community to another in order to rationalize and reduce the cost for the provision of public services to the Province’s residents. The process used for the relocation of Little Bay Islands was driven and initiated by those permanently resident there. [ 5 ] In 2017, after the vast majority of the permanent residents voted to relocate, the Respondent approved their request to do so.

It also provided relocation assistance for certain property owners. [ 6 ] The Policy put into place for the Little Bay Islands relocation program set out the process for evaluating a community’s relocation request, the procedure by which the community could vote and initiate such a request, as well as the financial assistance to be provided by the Government for residents relocating. [ 7 ] The Policy defines the requirements to qualify as a Permanent Resident, a Non-Resident Residential Property Owner, as well as a Commercial Property Owner.

While not directly germane to the issue here, it should be noted that residency in the community was of some significance in that it was only voting aged Permanent Residents who were eligible to vote on the relocation question. Only Permanent Residential Property Owners and Permanent Non-Residential Property Owners as defined, along with Commercial Property

Owners, were to be eligible for financial assistance for relocation purposes. [ 8 ] As noted earlier, the Applicant did not claim to be a Permanent Resident in Little Bay Islands. Rather, based upon his ownership of a house, fishing stage, two wharves, and fishing gear in Little Bay Islands, which property he stated that he used in order to carry out his livelihood as a fisherperson, he applied for relocation assistance on the basis that he was a Commercial Property Owner.

A Commercial Property Owner is defined in the Policy as being: “An individual or company that owns property within the Community and currently operates a commercial enterprise on that property or that owns a Rental Property in the Community”. [ 9 ] Pursuant to a request from the Respondent, and after the Applicant and his wife were interviewed by a representative of the Department of Municipal Affairs and Environment (the “Department”), the Applicant filed an Affidavit as requested outlining the basis for his claim for relocation assistance as a Commercial Property Owner.

In that December 15, 2017 Affidavit (Tab 9 of the Record), the Applicant provided the following information: 1. That he resided in Springdale, Newfoundland and Labrador; 2. That he owned commercial property in Little Bay Islands being a cabin that he used for himself and his fishing crew, a 10 x 12 foot shed, a 12 x 16 foot stage, and a 60 foot wharf used for fishing purposes (all on Main Street), as well as a 70 x 12 foot wharf and 12 x 16 foot shed at Muddy Hole. He kept fishing gear on these properties.

The Applicant went on to state that he processed fish, stored bait and tied up his vessels for shelter on these properties; 3. That he was the owner of a fishing enterprise he obtained from his father in 2008 and that his father had fished from Little Bay Islands for the past 50 years; 4. That Little Bay Islands is his “home port”, that he kept his vessels and fishing gear there and that he used his cabin to house himself and his fishing crew. He also stated that the community was close to his fishing grounds as well as his offloading ports; 5.

That attached to his Affidavit, as required by the Department, the Applicant provided authorizations for the Department to obtain “confirmation of tax payments and current status” from the Town of Little Bay Islands, information from his “employer” who the Applicant indicated was Allen’s Fisheries, as well as information from Newfoundland and Labrador Hydro. He also authorized the release of his income tax returns to the Department; and 6.

In an interview of the Applicant and his wife on November 21, 2017, based on notes provided (Tab 6 of the Record), the Applicant’s wife stated that she and her husband were cabin owners, that they “fish out that way” and that they are there in April for crab as well as in October and November. The Applicant stated in that interview that all his fishing enterprises were there and that the property was used from April to October in his capacity as a fisherperson. [ 10 ] In a series of emails between Andrew Wright and Kirby Chippet, both officials with the Department (Tab 5 of the Record), Mr.

Wright sought further information regarding the claim of the Applicant. In an October 31, 2018 email, Mr. Wright asked Mr. Chippet the following questions related to the period from 2016 to 2018: We need to know if the (sic) their wharf, stage, etc actively supports their fishing business. Are they leaving from there in the morning, do they return? What are the landings in LBI for this period? What are the landings in other ports where there are buyers for this period? LBI landings versus elsewhere . . . ? Are all licences up to date?

Please provide any facts that we can use to determine if they actively use LBI property for their fishery. [ 11 ] On November 4, 2018, Mr. Chippet forwarded certain documents to Mr. Wright. There is no indication from the Record what these were related to but it is safe to assume that they dealt in some manner with the questions in Mr. Wright’s email set out above. Later, on November 9, 2018, Mr. Chippet advised Mr. Wright that the Applicant also had a wharf in Springdale that he was using. [ 12 ] In Tab 7 of the Record, there are further notes prepared by an unnamed Department official.

In these notes, the following is stated regarding the Applicant: Has been an active fisher since April 2013, as per relocation request. Homeport: Springdale, Green Bay, Licenced Area – Green Bay. Mr. Oxford lives at Springdale. However, the family, and I assume he has inherited ownership, has a house and fishing stage, wharf and fishing gear at Little Bay Islands from which he operates during the fishing season. The exact amount of time he spends there I can’t say. He generally does fish in the LBI area for Cod and Crab, the main fisheries in the area. Only has a few landing of Cod at LBI for personal use.

But as I said above, there is no buyer stationed at LBI.

Lushes Bight, Nippers Harbour, Triton other landings. In what is noted as a 2018 update, Mr. Chippet stated the following: The above is still generally correct. All licences up to date. Actively fishing.

His home of Springdale and fishing facilities there are up in Hall’s Bay, a long ways from his main fishing grounds for Cod and Crab which are around and outside of LBI. [ 13 ] In a Decision/Direction Note (“Decision Note”) dated December 4, 2018 (Exhibit 1) regarding the claims of Commercial Property Owners, it was recommended that the Respondent should deem that the Applicant was not a Commercial Property Owner. In that regard it was stated that the Applicant had failed to fully complete his Affidavit regarding how much time he spent in Little Bay Islands between February 2016 to June 2017.

As will be noted later, it is difficult for me to find this to have been strictly necessary based upon the actual form of the Affidavit provided by the Respondent to the Applicant. [ 14 ] The Decision Note goes on to identify the “issue at hand” as being whether the Applicant met the definition of a Commercial Property Owner under the Policy. The following is then set out in that regard: • According to a DFO field supervisor out of Springdale, Mr. Oxford’s homeport is listed as Springdale and his licenced area for fishing is Green Bay. Mr.

Oxford has a wharf in Springdale that he uses. • From 2016 to 2018, of 68 landings, only 1 was recorded for LBI, and it was for personal use. Thirty nine percent of the landings were at Nipper’s Harbour followed by thirty two percent at Lushes Bight. • While it may be true that Mr. Oxford owns fishing property in the Town, based on the information provided by DFO, there appears to be limited operational activity on that property . . . “. [ 15 ] In a letter sent to the Applicant by the Respondent dated February 21, 2019, authored by Mr.

Wright on behalf of the Respondent (Tab 13 of the Record), the Applicant was notified that he was not a Commercial Property Owner in Little Bay Islands as defined in the Policy. Specifically, the reasons set out are as follows: According to the information you submitted and the information provided by the Department of Fisheries and Oceans, there is no doubt that you own fishing property in Little Bay Islands and you are an active fisherperson. However, apart from Little Bay Islands, you have a wharf in Springdale (where you permanently reside) that you also use.

Your affidavit did not provide any details related to the time you spent in Little Bay Islands for the period February 2016 to June 2017. More specifically, there is very limited operational activity on your Little Bay Islands property. Out of a total of 68 landings, only 1 was recorded for Little Bay Islands for personal use. Your main ports for landing included Nipper’s Harbour and Lushes Bight. [ 16 ] The response of the Department caused the Applicant to seek judicial review of the decision, this being the only appeal route available to him.

His Application for judicial review generally referenced the Department’s purported incorrect

interpretation and application of the Policy, as well as findings being made that were not reasonably supported by the information the Respondent had related to the Applicant’s use of his fishing property in Little Bay Islands. issues [ 17 ] The parties submit, and I agree, that the following issues arise: 1. What is the appropriate standard of review to be applied in reviewing the decision of the Respondent that the Applicant is not a Commercial Property Owner under the Policy? 2. Whether the decision can be supported under that standard. 3. If the decision is quashed, what is the appropriate remedy? analysis 1.

The Appropriate Standard of Review [ 18 ] In the written and verbal arguments provided to the Court, both parties submit that the decision of the Respondent is reviewable based upon the standard of reasonableness. Certainly, in other cases in this Province where there has been judicial review regarding a person’s interests being impacted as a result of community relocation, the appropriate review standard was found to be reasonableness ( Flynn v. Newfoundland and Labrador , 2018 NLSC 29 ; Russell v.

Newfoundland and Labrador (Municipal and Intergovernmental Affairs) (4 November 2019), Corner Brook 2017 04G 0268 (NLSC); Fudge v. Newfoundland and Labrador (Minister of Municipal Affairs) , 2013 NLTD(G) 14; and Tucker v. Newfoundland and Labrador (Municipal Affairs) , 2019 NLSC 182 ). [ 19 ] The recent trilogy of cases regarding judicial review rendered by the Supreme Court of Canada supports the use of the reasonableness standard in this case ( Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 ; Bell Canada v. Canada (Attorney General) , 2019 SCC 66 ; and Canada Post v.

Canadian Union of Postal Workers , 2019 SCC 67 ). [ 20 ] I will here refer in this decision to the comments of the majority in the Vavilov case. This was a citizenship case where the Court found that the administrative decision maker had unreasonably interpreted a statutory provision and had failed to appropriately consider

the facts in evidence before it. [ 21 ] In Vavilov , the Court set out a framework for the review of administrative decisions, including the determination of the appropriate standard of review. It was held that the standard of reasonableness is now to be considered as the presumptive standard to be applied in the review of administrative decisions. This presumption can be displaced only in limited circumstances, these being generally described at paragraph 17 of Vavilov : 1.

Where a standard of review is set out in legislation or where the legislation provides for an appeal to a court from an administrative decision (further discussed at paragraphs 33 – 52 in Vavilov ); 2. Where the question to be determined in the review is one where the rule of law requires that the correctness standard be applied such as constitutional questions, general questions of law of central importance to the legal system as a whole, as well as questions regarding the jurisdictional boundaries between two or more administrative bodies (further discussed at paragraphs 52 – 68); and 3.

The Court categorized another potential reason to displace this presumption, that being “Other Circumstances” (paragraphs 69 – 72). [ 22 ] None of those situations described above are applicable in the matter before me and it is therefore clear that the review standard to be applied is that of reasonableness. 2. The Reasonableness Standard and its Application Here (

a) Reasonableness [ 23 ] In applying the reasonableness standard, it is clear that judicial restraint in reviewing administrative decisions remains an applicable principle. In the majority decision in Vavilov , at paragraph 13 , the following is stated: 13 Reasonableness review is an approach meant to ensure that courts intervene in administrative matters only where it is truly necessary to do so in order to safeguard the legality, rationality and fairness of the administrative process.

It finds its starting point in the principle of judicial restraint and demonstrates a respect for the distinct role of administrative decision makers. However, it is not a “rubber- stamping” process or a means of sheltering administrative decision makers from accountability. It remains a robust form of review. [ 24 ] As well, in Vavilov , there is a stated renewal of the requirement that reviewing courts applying the reasonableness standard focus on developing an understanding of the decision maker’s reasoning process in deciding if the decision, as a whole, is a reasonable one.

The majority went on and spoke about the “hallmarks of reasonableness” which are justification, transparency and intelligibility and “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law” (see paragraph 47 of Dunsmuir v. New Brunswick , 2008 SCC 9 ). [ 25 ] In reading the Vavilov decision and its companion cases, notwithstanding the renewal of the reasonableness requirements referred to in Dunsmuir , it is my conclusion that this does not mean that a reviewing court should take a “hands off” approach.

In this regard, I agree with McGrath, J.’s comments at paragraph 73 in David Suzuki Foundation v. Canada - Newfoundland and Labrador Offshore Petroleum Board , 2020 NLSC 94 . The review is to be one that is said to be “robust” and must look at the decision maker’s reasoning process in order to determine whether the decision, as a whole, is a reasonable one.

As referred to in Vavilov , even where the decision maker is found to have expertise in the area in which the decision is to be made, that decision must still be found to meet the criteria of justification, transparency and intelligibility. [ 26 ] As referred to at paragraph 91 in Vavilov , it is clear that the reasons of the administrative decision maker must not be assessed against the standard of perfection. As well, the institutional context in which the decision is made and the history of the proceedings must be kept in mind.

Respectful attention to a decision maker’s specialized knowledge and expertise remains important. However, the majority did go on in that regard at paragraphs 95 and 96 to state: 95 That being said, reviewing courts must keep in mind the principle that the exercise of public power must be justified, intelligible and transparent, not in the abstract, but to the individuals subject to it.

It would therefore be unacceptable for an administrative decision maker to provide an affected party formal reasons that fail to justify its decision, but nevertheless expect that its decision would be upheld on the basis of internal records that were not available to that party. 96 Where, even if the reasons given by an administrative decision maker for a decision are read with sensitivity to the institutional setting and in light of the record, they contain a fundamental gap or reveal that the decision is based on an unreasonable chain of analysis, it is not ordinarily appropriate for the reviewing court to fashion its own reasons in order to buttress the administrative decision.

Even if the outcome of the decision could be reasonable under different circumstances, it is not open to a reviewing court to disregard the flawed basis for a decision and substitute its own justification for the outcome . . . [ 27 ] The majority in Vavilov went on to state that a reasonable decision must be based upon “internally coherent reasoning” and that it must be one that is “justified in light of the legal and factual constraints” relevant to the issue to be decided. [ 28 ] To establish internal coherent reasoning, the following was stated at paragraphs 103 and 104: 103 . . . a decision will be unreasonable if the reasons for it, read holistically, fail to reveal a rational chain of analysis or if they reveal that the decision was based on an irrational chain of analysis . . . .

A decision will also be unreasonable where the conclusion reached cannot follow from the analysis undertaken . . . or if the reasons read in conjunction with the record do not make it possible to understand the decision maker’s reasoning on a critical point . . . .

104 Similarly, the internal rationality of a decision may be called into question if the reasons exhibit clear logical fallacies, such as circular reasoning, false dilemmas, unfounded generalizations or an absurd premise. . . . [ 29 ] As for justification in light of the legal and factual constraints of the case, it was held that a decision will be found to be justified if it accords with “the constellation of law and facts that are relevant to the decision” (paragraph 105 in Vavilov ). The majority set out the “elements” that will generally be relevant, including the following: the governing statutory scheme, other relevant statutory or common law, the principles of statutory

interpretation, the evidence and facts before the decision maker, the past practices and decisions of the administrative body and the potential impact on the individual to whom the decision applies. Although not to be considered a “checklist” for conducting a reasonableness review, the majority stated that these elements are likely to have varying degrees of significance in any review depending on the context. [ 30 ] As regards review of an administrative decision maker’s dealings with statutory

interpretation, the comments of the majority at paragraph 116 in Vavilov suggest the following: 116 . . . Where reasonableness is the applicable standard on a question of statutory

interpretation, the reviewing court does not undertake a de novo analysis of the question or “ask itself what the correct decision would have been” . . . . Instead, just as it does when applying the reasonableness standard in reviewing questions of fact, discretion or policy, the court must examine the administrative decision as a whole, including the reasons provided by the decision maker and the outcome that was reached. [ 31 ] A further element relevant for consideration here is the evidence before the decision maker.

While a reviewing court should not interfere with factual findings of the decision maker, according to the majority in Vavilov , a reasonable decision must be one that is justifiable on the facts.

A decision maker who “has fundamentally misapprehended or failed to account for the evidence before it” will jeopardize the reasonableness of its decision (paragraph 126 in Vavilov ). [ 32 ] While I have specifically referred in some detail to only two of the “elements” referenced in Vavilov , I must consider all relevant factors in determining whether or not the decision made in this particular instance was a reasonable one. (

b) Application to this review [ 33 ] The reasons provided to the Applicant for the Respondent’s finding that he was not a Commercial Property Owner as defined in the Policy can generally be set out as follows: 1. The Applicant, according to the Department, had his homeport “listed in Springdale” and he has a wharf there that he uses; 2. The Applicant landed only 1 of 68 total landings of fish he had from 2016 to 2018 in Little Bay Islands and that the 1 landing was for personal use; and 3.

The Applicant had “limited operational activity in Little Bay Islands”. [ 34 ] In the Decision Note that was prepared on December 4, 2019 (Exhibit 1), previously referred to, the Respondent spoke of the Applicant not having “fully completed his Affidavit, most notably the portion needed to establish how much time he spent in the town for the period of February 2016 through June 2017”.

While not the main basis upon which I will be reaching my ultimate conclusion in this case, in reviewing the Record provided by the Respondent, I must admit to having some degree of concern about this assertion made by the Department’s officials. This is relevant potentially to the issue of procedural fairness to the Applicant. [ 35 ] As I understand it, the Applicant was sent a document in the form of an affidavit that he was required to complete in order to make his claim under the Policy. The full form is included in Tab 4 of the Record.

In the letter provided with the form affidavit, claimants were required to “complete and return all forms applicable to them” and in an accompanying instruction sheet were advised to complete all sections of the affidavit “that apply to you”. For a claim as a Commercial Property Owner, sections (c), (

d) and (

e) of the form were to be completed. Sections (

a) and (

b) related to Permanent Residents and Residential Property Owners while

section (

c) related only to a Commercial Property Owner. Aside from listing the commercial property owned, providing certain documents to verify that a person is a Commercial Property Owner, as well as contact information, there is one part of the applicable

section for Commercial Property Owners that asks for “General Comments” to support the claim of commercial property ownership. Sections (

d) and (

e) refer to references and necessary consent forms and authorizations for the Department to contact other agencies. [ 36 ] All of this to say that I am unable to understand how the Applicant here failed to complete the application he was provided with. In his Affidavit (Tab 9 of the Record), in the “General Comments” section, the Applicant stated that he owned a fishing enterprise that he had obtained from his father who had fished from Little Bay Islands for the previous 50 years.

He went on to state that he kept his vessels, fishing gear and a cabin there and referred to the property as his “home port” and that Little Bay Islands was close to his fishing grounds and his offloading ports.

Having said this and having considered the form in question, it is difficult for me to determine what applicable part of the affidavit required a person claiming as a Commercial Property Owner to explicitly provide information establishing the amount of time he spent in Little Bay Islands from February 2016 to June 2017. [ 37 ] In any event, the reasons given for the Respondent’s decision finding him not to be a Commercial Property Owner must be considered holistically taking into account the evidence that was available to the Respondent at the time. [ 38 ] As earlier stated, the Policy applicable to the Little Bay Islands relocation defines who a Commercial Property Owner is.

In that regard, the Respondent argued before me that the fundamental purpose of the Policy is as set out at page 3(

i) which is to provide relocation financial assistance to applicable claimants in exchange for the withdrawal of provincial services. As such, the

interpretation of the definition must bear this in mind. [ 39 ] As stated earlier, a Commercial Property Owner is defined to be a person or company that owns property at Little Bay Islands

and who “currently operates a commercial enterprise on that property . . .”. Here, the Respondent concluded that the Applicant was a property owner and also went on to find that he did have “limited operational activity on that property”.

In considering the level of his activity on the property, the Department identified the Applicant’s use of Springdale as his homeport, his use of his wharf there and the fact that only 1 of 68 landings of fish occurred in Little Bay Islands in the applicable period and that landing was actually for personal use. [ 40 ] It seems important here to note that the definition of a Commercial Property Owner in the Policy speaks specifically of the requirements that: (1) the person or company own property and (2) that the person or company are currently operating a commercial enterprise on that property.

There is no stated qualification in that definition that speaks to the extent of current commercial activity required. The Respondent appears to have determined that more than limited operational activity on the property was required notwithstanding that the definition requires only that a commercial enterprise on the property be “currently operating”. No reasons were provided by the Respondent as to why the Applicant’s limited operational activity failed to fulfill the Policy’s requirements. [ 41 ] I note that a somewhat similar situation as regards use of commercial property arose in the case of Russell v.

Newfoundland and Labrador . That case involved the relocation of the community of William’s Harbour in Labrador. There the Applicant was an owner of a temporary lodging facility (and also a permanent resident) who claimed for relocation assistance as a Commercial Property Owner. Furey, J. found that the Minister’s decision that the applicant had not met the definition of being a rental property owner under the policy was reasonable in the circumstances.

However, because there had been limited rentals, the Minister had acted unreasonably in its decision by not determining whether these limited rentals qualified the applicant as a commercial property owner. [ 42 ] In the circumstances before me, even if it would have been reasonable for the Department to have found that the Applicant had “limited operational activity” on the property, I am unable to conclude that the reasons given provide the requisite justification or transparency as to why his ownership and use of the property did not fall within the definition of a Commercial Property Owner pursuant to the Policy. [ 43 ] Even if the purpose of the Policy is to assist a Commercial Property Owner in exchange for the withdrawal of provincial services as submitted by counsel for the Respondent, a person or company currently operating a commercial enterprise on that property could well be negatively impacted no matter what the extent of their current operation is.

It is important here to note that the matter of hardship or harm to the Applicant was not specifically referred to by the Respondent in its reasons and nor was the Applicant given an opportunity to specifically speak to this. In this regard, at the least, it is important to note that pursuant to

section 4 of the Evacuated Communities Act, 2016 , S.N.L. 2016 E-15.1, while the property continues to vest in the property owner subsequent to relocation of a community, there is a prohibition against erecting or occupying a building in that community without a permit from the Government. [ 44 ] For me, of greater significance here when considering the reasonableness of the decision of the Respondent, is the basis for its finding that the Applicant had only “limited operational activity” on the property.

This determination seems to have been based upon the Applicant’s use of other fishing property outside of Little Bay Islands and the places where the Applicant landed his catch. [ 45 ] It is of importance here to note that the Respondent was, at least initially in its assessment, interested in whether the property owned by the Applicant actively supported his fishing business. As set out earlier, in the email to Kirby Chippet from Andrew Wright, Mr. Wright discussed this and went on to pose certain questions related to this.

There is no doubt from the questions asked that the Department was looking at how actively the property was supporting the Applicant’s fishing enterprise.

As argued here by counsel for the Applicant, the information that was available to the Department upon which it made its decision appears to suggest more than limited operational activity. [ 46 ] While the other places the Applicant used as his homeport or where he fished from could be of some relevance to assessing current operational activity in Little Bay Islands, I see no requirement in the Policy that there be exclusive use of that property in the Applicant’s fishing enterprise.

Furthermore, while the Department was aware that there was no fish buyer stationed at Little Bay Islands, its officials still placed significant importance on the fact that only 1 of 68 landings in the prescribed time period occurred on the Applicant’s property in Little Bay Islands. [ 47 ] The Applicant had previously advised in his Affidavit that he operated seasonally out of his Little Bay Islands property, particularly fishing for cod and crab, based upon the placement of his fishing grounds for these species.

In fact, in Tab 8 of the Record, an official of the Department reported that the Applicant “generally does fish in the LBI area for Cod and Crab, the main fisheries in that area”. In that same document, Mr.

Chippet provided an update stating that the Applicant’s home and fishing facilities in Springdale were “a long ways from his main fishing ground for Cod and Crab which are around and outside of LBI”. [ 48 ] While the issue of landings of fish at Little Bay Islands could well be relevant to a consideration of current operation of a claimant’s fishing enterprise in some circumstances, with the acknowledgement here that there was no fish buyer there, it seems understandable why the Applicant would have landed his fish elsewhere. [ 49 ] The Applicant was found to be an active fisherperson by the Respondent who owned fishing property in Little Bay Islands.

By its nature, the fishery primarily occurs away from where a fisherperson has his/her wharf or where he/she leaves from and returns to each day. Notwithstanding this, the Department appears to have accepted that a fishing enterprise could support there being a currently operating commercial enterprise when it sought information on how the Applicant’s property supported his fishing enterprise (Tab 5 of the Record).

Here the Department failed to set out and to justify its reasons why a person who uses his property to support his cod and crab fishery close to Little Bay Islands did not fit within the definition of a Commercial Property Owner as defined in the Policy. [ 50 ] Notwithstanding the deference that must be accorded to an administrative body in its findings of fact and the

interpretation of relevant criteria, I am not satisfied that the decision of the Respondent in this case provides the justification, transparency and intelligibility required of a decision maker in these circumstances, particularly considering the evidence the decision maker had before it. In this case, I find that there is a fundamental gap in the reasoning of the Respondent to deny the Applicant’s claim that he qualified as a Commercial Property Owner. As well, the reasoning of the Respondent reveals that the decision was made based upon an unexplained and an unreasonable chain of analysis (see paragraph 96 in Vavilov ).

Remedy [ 51 ] Generally speaking, it has been the practice of reviewing courts to remit matters back to the administrative decision maker for reconsideration where the initial decision has been quashed.

However, certain comments by the majority in Vavilov now require some reconsideration of this practice. [ 52 ] At paragraphs 140, 141 and 142, the majority stated that while it will most often be appropriate to remit a matter to the decision maker, for reasons of the proper administration of justice and to ensure access to justice, “there are limited scenarios in which remitting the matter would stymie the timely and effective resolution of matters in a manner that no legislature could have intended”.

The majority went on to hold that remission back to the decision maker would not be appropriate where it is clear from the review conducted that the particular outcome is inevitable. It is stated that remitting the matter in those circumstances would serve no useful purpose. [ 53 ] In this case, the Applicant has asked that I determine the matter based on the evidence available considering the definition in the Policy for a Commercial Property Owner.

I have considered this request and decided that it would be more appropriate in these circumstances to remit the matter to the Respondent for reconsideration, such reconsideration having the benefit of these reasons. Further consideration will be of benefit so as to ensure that the relocation Policy is properly and fairly applied to the Applicant in this case. conclusion [ 54 ] The decision of the Respondent finding that the Applicant is not a Commercial Property Owner, as defined in the Policy, is an unreasonable one for the reasons stated above and, therefore, it is quashed.

The matter is remitted to the Respondent for further reconsideration taking into account my reasons as set out above. [ 55 ] The Applicant is awarded his costs on a party and party basis in accordance with Column 3 of the Scale of Costs under Rule 55 of the Rules of the Supreme Court , 1986 , S.N.L. 1986, c. 42, Sch. D . [ 56 ] I would like to thank both counsel for their helpful Briefs and arguments in this matter. _____________________________ Richard D. LeBlanc Justice