Fisher Direct Ltd. v. Minister of Fisheries and Aquaculture, 2023 NSSC 371

SUPREME COURT OF Nova Scotia Citation: Fisher Direct Ltd. v. Minister of Fisheries and Aquaculture , 2023 NSSC 371 Date: 20231116 Docket: 519464 Registry: Yarmouth Between: Fisher Direct Ltd. Appellant v. Minister of Fisheries and Agriculture Respondent Judge: The Honourable Justice Muise Heard: May 5, 2023, in Yarmouth, Nova Scotia Decision: November 16, 2023 Counsel: Peter Rogers KC and Ryan Baxter, for the Appellant Alison W. Campbell, for the Respondent By the Court: INTRODUCTION [ 1 ] Fisher Direct Ltd. specializes in buying, holding, and exporting live lobster.

Tyler Nickerson is its sole director and President. He oversees all aspects of the business. [ 2 ] Inspection Officers with the Federal Department of Fisheries and Oceans (“DFO”) found, in Fisher Direct’s plant, lobsters that had been caught in traps tagged for Indigenous food, social, and ceremonial purposes (“FSC lobsters”). The Officers were able to identify them because they had been microchipped. Mr.

Nickerson and Fisher Direct, among others, were charged under s. 78 of the Federal Fisheries Act based on having bought, sold, traded, or bartered lobster, or having offered to do so, contrary to s. 35(2) of the Fishery (General) Regulations . The FSC lobsters were amongst lobsters owned by a third-party corporation being held at Fisher Direct’s plant for it. [ 3 ] Ultimately, Mr. Nickerson entered a guilty plea and was sentenced. The charge against Fisher Direct was withdrawn. [ 4 ] A few months after Mr.

Nickerson’s sentencing, the Registrar of Fisheries Licencing (the “Registrar”) sent Fisher Direct a notice that the Nova Scotia Department of Fisheries and Aquaculture intended to amend its fish buyer’s licences and its fish processor’s licence to include a condition that it must not permit Mr. Nickerson to be involved in its fish buying, selling, possessing, processing or marketing of fish products for two years. [ 5 ] A hearing was held in which Fisher Direct was given an opportunity to show cause why the proposed amendments should not be made.

Following that hearing, the Show Cause Panel unanimously recommended, to the Minister of Fisheries and Aquaculture (the “Minister”), that it supported his decision regarding the proposed amendments, and that an amendment was warranted, but also highlighted some points for the Minister to consider. [ 6 ] The Minister upheld the Registrar’s decision except that he changed the start date to be three days after his decision, as the start date indicated by the Registrar had already passed. [ 7 ] That new start date was the first day of the lobster fishing season for the area in which Fisher Direct’s plant is located. [ 8 ] Fisher Direct appealed the Minister’s decision and moved to stay its enforcement. [ 9 ] A stay was granted pending the outcome of the appeal.

ISSUES [ 10 ] The following issues have been raised in this appeal: 1. Whether the Minister exceeded his constitutional jurisdiction rendering his decision ultra vires .

2. Whether the process leading to the decision was procedurally unfair. 3. Whether the Minister provided sufficient reasons. 4. Whether the Minister committed a reviewable error in deciding to amend Fisher Direct’s licences? [11] I will deal with the alleged failure to engage with Fisher Direct’s evidence and submissions as part of the sufficiency of reasonsanalysis. LAW AND ANALYSIS STANDARDS OF REVIEW [12] As agreed by the parties, since the legislature has not prescribed a particular standard or standards of review, the appellatestandards of review apply.

They are: correctness for questions of law; and, palpable and overriding error for questions of fact andquestions of mixed fact and law “where the legal principle is not readily extricable: Canada (Minister of Citizenship and Immigration)v.

Vavilov, 2019 SCC 65, para 37. [13] The parties agree the standards of review which apply to each issue are as follows: - Whether the Minister exceeded his constitutional jurisdiction is to be reviewed on a standard of correctness. - Whether the Minister provided sufficient reasons is to be reviewed on a standard of palpable and overriding error, including whetherthe decision is supported by the evidence or information presented. - Whether the Minister committed a reviewable error in deciding to amend Fisher Direct’s licences is reviewable on a standard ofpalpable and overriding error.

The parties also agree that, if a decision is unreasonable, in that it is not within the range of acceptableoutcomes, it constitutes a palpable and overriding error. [14] Fisher Direct submits that whether the process leading to the decision was procedurally unfair is to be determined using thecorrectness standard or by applying the Baker factors. The Minister submits that there is no standard of review as it is being consideredfor the first time by this Court and the analysis is to be conducted using the Baker factors. [15] Labourers International Union of North America, Local 615 v.

CanMar Contracting Ltd., 2016 NSCA 40, stated, atparagraph 47: The reason there is no “standard of review” for a matter of procedural fairness is that no tribunal decision is under review. The court isexamining how the tribunal acted, not the end product. If, on the other hand, the applicant asks the court to overturn atribunal’s decision – including one that discusses procedure – a standard of review analysis is needed.

The reviewing court must decidewhether to apply correctness or reasonableness to the tribunal’s decision. [16] In the case at hand, Fisher Direct raised procedural objections with the Show Cause Panel Chair. To the extent that the Panelrefused to accede to Fisher Direct’s requests, its procedural decision is to be reviewed. [17] However, there is some divergence in the case law regarding what the standard should be. The general standard applied by theSupreme Court of Canada is one of correctness (for example, in Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339).

Sometimes it mixes some deference with the correctness standard (for example, in Mission Institution v.Khela, 2014 SCC 24, at paras 79 and 89). Sometimes it simply states that there is no standard of review and the Court is simply to applythe Baker factors (for example, in Moreau-Bérubé v. New Brunswick (Judicial Council), 2002 SCC 11 , [2002] 1 S.C.R. 249,at para 74). [18] Baker v. Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817, and the factorsoutlined in it, provide for a level of deference in determining the requisite standard of procedural fairness.

Since the reviewing courtdetermines that standard based on what it sees as correct. It is effectively a correctness standard of review based on the Baker factors,which allows for some deference depending on the context. [19] I will apply the Baker factors in determining whether the process in this case was procedurally unfair, applying some deferenceif the context requires it.

ISSUE 1: WHETHER THE MINISTER EXCEEDED HIS CONSTITUTIONAL JURISDICTION RENDERING HISDECISION ULTRA VIRES. [20] Fisher Direct submits the Minister exceeded his constitutional jurisdiction for the following reasons: - The licence amendments purport to restrict extra-provincial trade and commerce which has been interpreted as being an exclusiveFederal power pursuant to s. 91(2) of the Constitution Act, 1867. - Pursuant to s. 91(12) of the Constitution Act, 1867, the Federal Government has exclusive jurisdiction over “Seacoast and InlandFisheries”. - The amendments were a colourable piling on of an additional sanction under the guise of the ostensible Provincial legislative goal of“assisting in the orderly development of the fisheries industry”.

That is an area over which the Minister does have general supervisionand control pursuant to s. 72 of the Fisheries and Coastal Resources Act, S.N.S. 1996, c. 25 (the “FCRA”). However, the amendments

fail to meet a rational connection and proportionality test, similar to the Oakes

Section 1 justification test, which should be applied to determine colourability. - The amendments were to provide additional deterrence of illegal fishing, an exclusively Federal domain. - The discretion conferred by s. 72 is too vague to be attributed to an area of provincial jurisdiction. [ 21 ] The Minister submits that he did not exceed his constitutional jurisdiction for the following reasons: - Provincial jurisdiction over activities carried out in relation to fish, once it is landed, was established by the Privy Council in 1929 in the case of In the Matter of a Reference as to the Constitutional Validity of Certain Sections of The Fisheries Act, 1914 , 1929 CarswellNat 1 .

The same case noted that legislation dealing with matters that are necessarily incidental to effective legislation by that level of government will be intra vires even if they affect matters generally within the jurisdiction of the other level of government. - In Ward v.

Canada (Attorney General) , 2002 SCC 17 , the Court concluded that a federal law banning sale, trade or barter of young seals was intra vires because it was “in pith and substance concerned with curtailing commercial hunting of young seals to preserve the fisheries as an economic resource, vitally connected to protecting the economic viability of the Canadian fishery as a whole”: paras 47 to 49. - His decision does not expressly state that the amendments apply only to activities within Nova Scotia.

However, it upheld the September 9, 2022 decision of the Registrar, which expressly refers to buying and possessing fish products “in Nova Scotia”. In addition, s. 72 of the FCRA only gives him the power to supervise and control the specified activities “within the Province”. Therefore, by implication, his decision communicates that the amendments only apply to activities within Nova Scotia. - A buyer’s licence is not required to purchase lobster from other buyers. In addition, grading, labelling and packaging of live lobsters is not considered “processing”.

Therefore, the amendments could not be seen as preventing Mr. Nickerson from being involved in purchase of lobster from other buyers, handling them and selling them outside of Nova Scotia. - What constitutes “orderly development of the fisheries industry” for the purposes of

section 72 is not vague. Addressing the illegal market for lobster is clearly part of the orderly development of the industry. - The framework for such decisions by the Minister is clearly laid out in s. 72 in conjunction with other provisions in the FCRA and the Fish Buyers’ Licensing and Enforcement Regulations , N.S. Reg. 99/2000 , as amended to N.S.

Reg . 130/2017 (the “Licensing Regulations” ) including the following: o Under FCRA s. 73, unless exempt, a person can only buy, sell, possess, or market fish products in Nova Scotia in accordance with the terms of a licence from the Minister. o S. 76(2) of the FCRA authorizes the minister to amend a license at any time “as may be reasonably necessary to carry out the purpose of”

Part VII of the FCRA , dealing with licensing and inspection of fish products. S. 72 falls within

Part VII. o S. 73(3)(ba) authorizes the minister to terminate a licence if “the holder of the licence fails to meet any requirement placed on the licence holder by the regulations”. o S. 16 of the Licensing Regulations states, among other things: “For the purposes of clause 76(3)(ba) of the Act, every licence holder is required to (

a) comply with Federal and Provincial legislation and regulations; (

b) comply with the terms and conditions of their licence; … .” o The conditions of Fisher Direct’s licences also include compliance with the FCRA . - Fisher Direct initially entered a guilty plea to having illegal lobster in contravention of the Federal Fisheries Act . After the Registrar gave notice to terminate Fisher Direct’s buyer’s licences, that guilty plea was withdrawn and, instead, a guilty plea was entered by Mr. Nickerson in relation to the same offence.

Regulating Extra-Provincial Trade and Commerce [ 22 ] There is no dispute that regulation of activities, in Nova Scotia, relating to fish after landing is within the jurisdiction of the Nova Scotia government. [ 23 ] The Minister did not expressly state, in his decision, that Mr. Nickerson could continue to be involved with Fisher Direct in relation to lobster exported inter-provincially or internationally.

He did so in his decision suspending the Fish Buyer’s Licence of Atlantic Chican Seafoods , which is dated only about two and one-half months before the decision being appealed herein. [ 24 ] However, that express statement in Chican was presented as part of the rationale for the decision.

It was accompanied by an express statement that Chican could also continue grading, packaging and labelling live lobster, as a Buyer’s Licence was not required for those activities either. [ 25 ] The Minister leaving those express statements out of the letter communicating his decision in relation to Fisher Direct does not communicate that the amendments excluding Mr. Nickerson’s involvement for two years was meant to extend to those activities. [ 26 ] The Chican decision makes it clear that the Minister knew Fisher Direct did not need the licences for those activities.

Therefore, he could not have been communicating that the conditions regarding Mr. Nickerson not being involved would encompass those activities.

[ 27 ] In addition, I agree with the Minister that, since he was upholding the decision of the Registrar, which expressly referred to buying and processing fish products “in Nova Scotia”, by reference, his decision also addressed activities within Nova Scotia. [ 28 ] I further agree with the Minister that, even without such incorporation by reference, it was implied that his decision only related to activities within Nova Scotia because s. 72 of the FCRA limits his supervision and control authority to activities within Nova Scotia.

For his decision to be read as extending to regulation of extra-provincial trade and commerce it would have to contain some wording from which that intention could be interpreted. No such wording exists in the Minister’s decision. Colourability [ 29 ] Fisher Direct proposes that the question, of whether the Minister’s decision was a colourable attempt to provide an additional penalty for a federal offence, be determined using a rational connection and proportionality test, similar to the Oakes test for justification of a Charter infringement under

Section 1. [ 30 ] However, the colourability principle applies to legislation, not administrative action. All cases referred to by Fisher Direct and in

Section 15.5(

g) of Peter Hogg, Constitutional Law of Canada (5 th Edition) , Volume 1, p. 15-19, on the issue of colourability, involved challenges to legislation, not administrative action. [ 31 ] Fisher Direct is not challenging the constitutionality of the legislation pursuant to which the Minister decided to impose the amendments. [ 32 ] If the legislation itself is constitutionally valid, and the impugned decision is in compliance with and authorized by the legislation, then the Minister’s decision is not outside his constitutional jurisdiction. [ 33 ] The proposed rational connection and proportionality test does not lend itself to determining whether administrative action has escaped its jurisdictional boundaries.

The Dor é framework looks at whether there has been a proportionate balancing of Charter protections in assessing the reasonableness of an administrative decision. However, the case at hand does not involve a Charter issue. [ 34 ] The Minister’s decision collaterally provides deterrence and could affect a federal area of jurisdiction. For instance, the amendments could be used as unanticipated collateral consequences to form the basis of an application to withdraw Mr. Nickerson’s guilty plea. However, that does not, by itself, bring the decision outside provincial jurisdiction.

Take for example Quebec (Attorney General) v. Canada (Attorney General) , 2015 SCC 14 . In that case, the federal government enacted legislation which repealed the long- gun registry and required the destruction of all long-gun data. The data destruction portion had been added to the bill after Québec requested that the federal government hand over the data that had been collected from Québec so that it could use it in its own long-gun registry. The Supreme Court of Canada accepted that the destruction provision may have been added to prevent Québec from establishing its own long-gun registry.

However, it concluded that was not a colourable purpose, the federal government had the power to repeal a criminal law provision, and that power “must logically be wide enough to give Parliament the power to destroy the data collected for the purpose of a criminal law provision”: para 43. [ 35 ] In addition, the Minister’s desire to deter illegal fishing is as part of deterring illegal market activities, which are reasonably seen as hindering the orderly development of the fisheries industry.

That point is made clear by the following parts of the Record: - Pages 284 to 288 contain three notices sent to Nova Scotia Licensed Lobster Buyers generally and one sent to Fisher Direct. The general notices were sent in September 2018, 2019 and 2020. The notice sent specifically to Fisher Direct was sent in June 2019.

All these notices highlight that the Regulations prohibit the purchase of FSC fish and of any fish caught by anyone who does not hold a valid commercial fishing licence, and that anyone doing so could have their buyer’s licence amended, suspended, or terminated. - Pages 289 to 292 contain correspondence dated August 19, 2022, which was sent to the Minister on behalf of 10 Nova Scotia Fishermen’s Associations, as well as on behalf of one association from New Brunswick. It refers to the conviction of Mr.

Nickerson and another individual for purchase of FSC lobster and urges the Minister to revoke any buyer’s licence tied to them. It urges that this must be done to avoid convictions being seen as merely the “cost of doing business”, given the slim chance of the illegal activities being discovered, and states, among other things: “The purchase and sale of any FSC product is prohibited yet, such activities have nurtured and guided the seafood ‘black market’ that is prevalent today, particularly for lobster.

This illicit activity drives unreported cash sales, causing increased concern for conservation, sustainability and has led to amplified tensions throughout many coastal communities in our province.” [ 36 ] I disagree with Fisher Direct’s suggestion that the purpose of deterring illegal market activities was “invented” by Counsel for the Minister. [ 37 ] Deterring such illegal market activities in the Province is a legitimate provincial objective.

It assists in the “orderly development of the fisheries industry” by, among other things, promoting transparency in the source and quantity of lobsters purchased, as well as when and where they were harvested. The conservation concerns addressed by such transparency relate to ensuring a continued supply of lobster. The location and timing of the catches relate to traceability and the quality of the product that will be on the market. As an aside, “maintaining product quality” is another purpose expressly prescribed in s. 72 of the FCRA .

However, it has not been advanced as a justifying purpose in the Record or in submissions. [ 38 ] S. 72 of the FCRA gives the Minister power to control buying and possession of fish within Nova Scotia to “assist in the orderly development of the fisheries industry”. Vagueness [ 39 ] I agree with the Minister that the FCRA (including ss. 72 , 73 and 76 ) and the Licensing Regulations (including s. 16) lay out the framework for the Minister’s decisions to vary, amend or terminate fish buyers’ licences, in a manner that is sufficiently clear to show

that the legislation is, “in pith and substance”, concerned with regulating activities carried out within Nova Scotia in relation to fish that has been landed, more particularly for the “orderly development of” the Nova Scotia fisheries industry. [ 40 ] Therefore, the legislation is not too vague to be attributed to a Provincial head of power, notably power over property and civil rights in the Province. Conclusion on Whether the Minister’s Decision is Ultra Vires [ 41 ] For these reasons, I find that the Minister’s decision is not ultra vires .

ISSUE 2: WHETHER THE PROCESS LEADING TO THE DECISION WAS PROCEDURALLY UNFAIR. [ 42 ] Baker , supra , at paragraph 77 , stated: Where a particular administrative decision-making context gives rise to a duty of procedural fairness, the specific procedural requirements that the duty imposes are determined with reference to all of the circumstances: Baker , at para. 21 . In Baker , this Court set out a non-exhaustive list of factors that inform the content of the duty of procedural fairness in a particular case, one aspect of which is whether written reasons are required.

Those factors include: (1) the nature of the decision being made and the process followed in making it; (2) the nature of the statutory scheme; (3) the importance of the decision to the individual or individuals affected; (4) the legitimate expectations of the person challenging the decision; and (5) the choices of procedure made by the administrative decision maker itself: … . [ 43 ] The Court in Baker , supra , at paragraphs 21 to 48 , discussed the variable and flexible nature of procedural fairness in the administrative law context and the principles and factors affecting the content of the duty of procedural fairness.

It went on to apply those principles and factors to determine the scope and content of procedural fairness in the aspects of the procedures used that were alleged to have been deficient. It then examined the procedure used and determined whether it met the requisite standard of procedural fairness. [ 44 ] I will take the same approach, bearing in mind the values upon which procedural fairness requirements are based.

As stated at paragraph 28 of Baker : The values underlying the duty of procedural fairness relate to the principle that the individual or individuals affected should have the opportunity to present their case fully and fairly , and have decisions affecting their rights, interests, or privileges made using a fair, impartial, and open process, appropriate to the statutory, institutional, and social context of the decision. Nature of the Decision and Process [ 45 ] Fisher Direct submits that the decision and process in the case at hand resembles that of a judicial proceeding.

In support, it points to the panel having conducted an oral hearing with court-like procedures, such as the presentation of evidence, cross-examination, and argument. In addition, the Minister was exercising an adjudicative function, not an investigative or inquisitorial function.

Consequently, this factor supports a higher degree of procedural fairness. [ 46 ] The Minister agrees that the “decision is adjudicative, affecting a single entity, and thus suggests a higher degree of procedural protections”. [ 47 ] However, he highlights that the process differs from a judicial proceeding in that the Panel does not make the ultimate decision.

It only makes a recommendation to the Minister. [ 48 ] He also cites the following from Sara Blake, “Administrative Law in Canada, Seventh Edition” (LexisNexis Canada Inc. 2022 – Toronto), at pages 18 and 19: [I]f an adverse decision may result from the investigator’s recommendation with no opportunity to make representations to the decision- maker, a higher level of disclosure by the investigator and an opportunity to make submissions to the investigator may be required and the investigator’s report should fairly and accurately set out the facts and the representations of the parties to facilitate an informed decision.

Provided procedural fairness was accorded prior to the recommendation, the decision-maker need not provide any further opportunity before accepting the recommendation. [ 49 ] The Minister submits that this factor militates in favour of a moderate degree of procedural fairness. [ 50 ] The fact that the Panel only makes a recommendation is not a distinguishing feature pointing towards a lower level of procedural fairness where, as in the case at hand, there was no chance to review the recommendations and make further submissions prior to the Minister’s decision.

In such circumstances, the process afforded to the licence holder during the Show Cause Hearing is the only opportunity the licence holder has to convince the Minister to decide in its favour. In addition, the reasons of the Panel become those of the Minister, to the extent that he accepts its recommendation and has not provided alternate or supplementary reasons. [ 51 ] I agree with Fisher Direct on the following two points.

The process used in the Show Cause Hearing, and that described in the Show Cause Procedures Manual, including the swearing, examination, cross-examination of witnesses, as well as the licence holder being given the opportunity to present closing argument first, then rebut that of the Department, presents as a judicial process. The decision itself, which includes the recommendations and the Minister’s letter, also presents as a quasi-judicial decision in the way that it balances various considerations. [ 52 ] Therefore, I agree that this factor militates in favour of a higher degree of procedural fairness.

Nature of the Statutory Scheme [ 53 ] Fisher Direct acknowledges that the FCRA gives the minister considerable discretion. Yet, it submits that this is a neutral factor. [ 54 ] The Minister highlights his broad discretion to amend, suspend or terminate a licence under the FCRA . He points to section 76(2) which allows him to vary or amend a licence, “at any time as may be reasonably necessary to carry out the purpose” in s. 72 , which includes “assisting in the orderly development of the fisheries industry”.

He also points to s. 76(3)(ba) which gives him discretion to terminate the licence “at any time if the holder of the licence fails to meet any requirement placed on the licence holder by the regulations”. [ 55 ] In relation to the process to be used in arriving at the decision he points to

section 15 of the Licensing Regulations , which states:

(1) Where the Minister has reason to believe that termination, amendment or suspension of a buyers licence is justified under subsection 76(2) or (3) of the Act, the Minister shall notify the licence holder of the pending action, and the licence holder may apply for a show cause hearing in accordance with the procedure determined under subsection (2) to show cause why their licence should not be terminated, amended or suspended.

(2) The Minister shall determine the practice and procedure to be followed when a licence holder applies for a show cause hearing under subsection (1). [ 56 ] He submits this factor militates in favour of a lower degree of procedural fairness. [ 57 ] The expressly legislated discretion to “determine the practice and procedure to be followed when the licence holder applies for show cause hearing”, as occurred in the case at hand, clearly communicates a legislative intent that the Minister’s choice of practice and procedure be accorded deference.

I will return to this point later when I discuss the choice of procedure factor. [ 58 ] However, in the meantime, because of this express conferral of discretion as to process, I disagree that the scheme of the legislation is a neutral factor. I find that it supports a broader range of acceptable procedural fairness. More specifically, it militates in favour of allowing the range of procedural fairness to extend further towards the lower degree range.

In that way, I agree with the Minister that it supports a lower degree of procedural fairness than would apply in the absence of such express discretion to determine practice and procedure. Importance of the Decision [ 59 ] As agreed by the parties, the decision is extremely important to Fisher Direct as it will likely to be significantly impacted if Mr. Nickerson is unable to participate in the licensed activities for two years, because Mr.

Nickerson is the sole director and the key person in charge of all operations and negotiations. [ 60 ] Though the licence holder is Fisher Direct, the decision also impacts Mr. Nickerson’s ability to continue his employment in a full capacity. As indicated in Baker , at paragraph 25 , where one’s “employment is at stake”, “a high standard of justice is required”. [ 61 ] Therefore, this factor militates in favour of a higher degree of procedural protections.

Legitimate Expectations [ 62 ] Fisher Direct submits that legitimate expectations arose from the document entitled “Show Cause Hearing Information for Licence Holder” (the “Show Cause Information”) and from the proceeding being quasi-judicial.

More specifically, it suggests that it had a legitimate expectation that the process would not be as rushed as it was. [ 63 ] I agree with the Minister that one of the things the doctrine of legitimate expectations refers to is expectations arising from a specific process having been used in the past and the party in question relying on that practice continuing to be followed. [ 64 ] A more complete

summary of the doctrine is contained in paragraph 26 of Baker , where the Court stated: This doctrine, as applied in Canada, is based on the principle that the “circumstances” affecting procedural fairness take into account the promises or regular practices of administrative decision-makers, and that it will generally be unfair for them to act in contravention of representations as to procedure, or to backtrack on substantive promises without according significant procedural rights. [ 65 ] Representations as to procedure are contained in the Show Cause Information document and in the Show Cause Procedures Manual.

There are no representations in the correspondence exchanged in advance of the hearing which are inconsistent with those documents. [ 66 ] The Minister points to the timelines laid out in the Show Cause Procedures Manual and Appendix 1 to it. They state the following: - “Show Cause Hearings will be carried out as expediently as possible.

The [suggested] timelines in Appendix 1 represent a general guideline.” - “Within 21 calendar days from the receipt of the Letter of Intent [regarding a pending amendment], the Licence Holder must submit a completed application form … for a Show Cause Hearing … .” - “Show Cause Hearing set 30 calendar days from date application received from Licence Holder.”

- “Any documents that the Licence Holder intends to present should be received by the Registrar at least five days before the Show Cause Hearing.” The Show Cause Information is even more definite.

It states: “if the licence holder intends to present documents at the show cause hearing, a copy of the documents must be provided to the Registrar Fisheries Licensing at least five days before the hearing”. [ 67 ] The portion of the Manual dealing with the Responsibilities of the Registrar, Part F, provides, among other things that: - the notification of the Show Cause Hearing is to include, among other information, “the documents that the Department plans to present if not already sent to the Licence Holder”; and, - the Registrar need only have already sent the Licence Holder those documents “if they request an opportunity to examine the evidence that the Department plans to present at the Show Cause Hearing. [ 68 ] The timeline suggested in Appendix A for the Registrar to contact the people involved, determine a date for the Hearing and communicate it to the Licence Holder, Panel and “others involved” appears to be within 7 “business” days of submission of the Application. [ 69 ] There is no evidence of any other source of legitimate expectations as to timelines. [ 70 ] There is an alleged deficiency related to the timing of the hearing being such that Mr.

Nickerson did not physically appear in- person. I agree that the Show Cause Information states that “the licence holder may choose to present its case by written submissions in place of appearing at an oral hearing”. I add that Procedure Paragraph E-6 of the Manual states: “The applications should specify whether the Licence Holder wishes to have an in-person hearing or present its case by written submission.

In the written case, the Show Cause Hearing would then proceed without the presence of the Licence Holder or its representative if they so agree.” [ 71 ] These provisions create a legitimate expectation that the representative of the licence holder can appear at the hearing if they choose to do so. [ 72 ] The Manual, at Procedure Paragraph E-14, also outlines the Order of Proceedings to be followed.

However, there is no alleged deficiency in relation to that aspect of the process. [ 73 ] There is an alleged deficiency in relation to Fisher Direct not being provided an opportunity to review and respond to the Show Cause Panel’s written recommendations to the Minister in advance of the Minister making his decision. I will address that alleged deficiency later.

In the meantime, I simple note that the Manual does not indicate that the licence holder is to be given such an opportunity to review and respond to the recommendations. [ 74 ] There are no legitimate expectations which would militate in favour of a higher level of procedural protections than those contained in the Show Cause Information and the Manual. They outline high to moderate levels of procedural protections. Fisher Directly aptly described them as trial-like.

Choice of Procedure [ 75 ] The parties agree that the Minister has extensive authority over his own procedures, which makes it such that he is entitled to some deference in his choice of procedures. [ 76 ] As already noted, s. 15(2) of the Licensing Regulations leaves it to the Minister to “determine the practice and procedure to be followed when the licence holder applies for a show cause hearing”. [ 77 ] I agree with Fisher Direct that, as stated at paragraph 17 of Higgins v.

Nova Scotia (Attorney General) , 2013 NSCA 106 , the procedure chosen by the Minister must still “treat those who are affected by his decision fairly”. [ 78 ] However, I disagree with its characterization of the process followed in this case as being a “rush to a hearing - evidently calculated to achieve an outcome prior to the opening of the most important lobster fishing season” and, thus, not being worthy of deference. [ 79 ] As submitted by the Minister, the Manual referred to in discussing the legitimate expectations factor expressly contemplates an expedited hearing process, with the show cause hearing taking place within 30 calendar days of the receipt of the application. [ 80 ] That is a procedure that has been chosen by the Minister and is reflected in his department’s policy manual.

It was obviously chosen to apply to such show cause hearings generally. There is no evidence or indication that it was chosen to effect the result suggested by Fisher Direct. It is dated September 2015, well before Fisher Direct and Mr. Nickerson were even charged with the fisheries offence in question. [ 81 ] The timelines in Appendix 1 to the Policy Manual are noted as being a general guideline.

However, since they create a legitimate expectation in show cause applicants, straying too far from those timelines would arguably be unfair to such applicants generally. [ 82 ] I note as well that the timelines related to show cause hearings to determine issues of judicial interim release in criminal matters, though they may be extended by consent of the accused, are much tighter, despite the interests at play (the right to reasonable bail and protection of the public) being more serious than commercial interests.

Scope and Content of Procedural Fairness Owed in Aspects Alleged to Have Been Deficient [ 83 ] Considering these factors, and my comments related to them, I conclude that Fisher Direct was owed a moderate to high degree

of procedural fairness. [ 84 ] In relation to the procedural aspects alleged to have been deficient, the content of the procedural fairness owed is outlined in the paragraphs which follow.

Timelines [ 85 ] Fisher Direct submits the timelines imposed, and disclosure made, by the Panel provided inadequate preparation time. [ 86 ] The Show Cause Hearing process is properly meant to be an expeditious one, which balances the need for relatively prompt imposition, modification, or reversal of proposed amendments, while preserving the ability of Licence Holders to fully and fairly present their case. [ 87 ] Absent exceptional circumstances, such as where the Licence Holder or its representative is incapacitated, or where there are voluminous documents to be submitted by the Department which are not reasonably anticipated by the licence holder, the timelines for a Show Cause Hearing are to be as close as reasonably practicable to those set out in the Show Cause Hearing Information and the Manual. [ 88 ] Those timelines include the following: - The Hearing is to be held 30 calendar days after the Application is submitted by the Licence Holder (which is to be within 21 calendars days of receipt of the letter of intent to amend). - Unless requested earlier, the documents to be presented by the Department at the Show Cause hearing need only be provided with the notice of the show cause hearing.

That notice should be sent within 7 business days of submission of the Application for a Show Cause Hearing. - Documents to be presented by the Licence Holder should be provided to the Registrar at least 5 days prior to the Hearing. Manner of Appearance [ 89 ] Fisher Direct submits its representative, Mr. Nickerson, was denied the opportunity to appear in person. [ 90 ] Fisher Direct’s Application indicates that Mr. Nickerson wished to appear in person for an oral hearing as opposed to proceeding with a written submission and no oral hearing. [ 91 ] He was entitled to an in-person oral hearing.

Reviewing Recommendations and Making Additional Submissions [ 92 ] Fisher Direct submits that it ought to have been provided a copy of the Panel’s recommendations and an opportunity to make further submission to the Minister. [ 93 ] I agree with the Minister that the law on this question is correctly stated in the following passage from Blake, Administrative Law in Canada , supra , at page 89: If the hearing panel’s role is restricted to making a recommendation, the opportunity to make submissions to the hearing panel is adequate, unless the decision maker intends to impose a more severe sanction. [ 94 ] In the case at hand, the Minister imposed the same sanction that was contained in the Registrar’s “INTENT TO AMEND” letter regarding Fisher Direct’s licences.

The only change was in relation to the start date because it had already elapsed before the Show Cause Hearing. [ 95 ] Fisher Direct submits that the Panel did not make a recommendation as to the length of the prohibition against Mr. Nickerson being involved in various Fisher Direct activities.

That submission finds some support in the “Recommendation” portion of the Panel’s “ADVICE TO MINISTER” which states, among other things, “the Panel has reached a unanimous recommendation that an amendment for the conviction of Tyler Nickerson is warranted”, without stating the duration of the amendment. [ 96 ] However, the first sentence of the ADVICE TO MINISTER states: “This letter provides the report and recommendations of the Show Cause Hearing Panel to support your decision regarding the notice of amendment”.

That statement makes it clear that the Panel is supporting a duration of the amendments up to the two years specified in the INTENT TO AMEND letter. [ 97 ] Therefore, the Minister did not impose a more severe sanction. [ 98 ] Consequently, provided Fisher Direct was afforded procedural fairness by the Panel, it is not entitled to review its recommendations and make further submissions to the Minister. As submitted by the Minister, that would be providing Fisher Direct an additional chance to influence the Minister’s decision, to which it is not entitled.

Whether the Procedure Used Met the Requisite Standard Timelines

[ 99 ] Fisher Direct’s complaint of inadequate preparation time includes that it did not receive “the Registrar’s documents until it was enclosed with Ms. O’Brien-Latham’s email dated November 10, 2022”. That email was the notification of the Show Cause Hearing, and there is no evidence that there had been any prior request “to examine the evidence that the Department [planned] to present at the Show Cause Hearing”.

Therefore, there was no obligation to provide those materials before the notification of the Show Cause Hearing. [ 100 ] The suggested timeline for that notification is 7 calendar days after the submission of the Application. However, that notification cannot occur until the Registrar (or their delegate) has contacted all involved to determine a suitable time for the Hearing. [ 101 ] In the case at hand, the Notice of Intention to impose the Amendments had been sent to Fisher Direct September 9, 2022. It expressly included the 21-day deadline to apply for a Show Cause Hearing.

On September 20, 2022 Fisher Direct informed the Registrar it intended to apply for a Show cause Hearing. In response, the Registrar informed Fisher Direct, in an email dated September 23, 2022, that the Application had to be received by October 11, 2022. However, the Registrar received the Application dated October 7, 2022 on October 12, 2022. [ 102 ] At some point between October 12 and October 28, 2022 there was contact between the Panel Chair and the lawyer for Fisher Direct, Mr. Fraser. On October 28, Mr. Fraser sent the Chair an email with only the subject “Hello” and no message.

That was, more likely than not, meant only to provide his email address. The Chair responded the same day with a message which referred to looking forward to Mr. Fraser’s response to “the proposed date of November 14 1:00 pm for the in-person show cause hearing”. So, more likely than not, there was a previous discussion regarding that date. Seven clear business days from October 12 falls on October 24. It is unclear whether the Registrar or the Chair contacted or attempted to contact Fisher Direct or Mr. Fraser before October 28.

However, even if there was a delay of four days in doing so, that delay was more than absorbed by the fact that the actual hearing date was ultimately scheduled 11 calendar days after the 30-day suggested deadline. [ 103 ] It was not until November 10, 2022 that the Chair emailed the notification of Show Cause Hearing. However, that was after multiple exchanges of communications with Mr. Fraser regarding selecting a date. The last one had been an email exchange on November 8. Mr. Fraser had asked that the hearing be held after Mr. Nickerson planned to return to Nova Scotia.

The Chair said they would confer with the Department and get back to him. They did that in the November 10 notification of the hearing, which provided a date prior to Mr. Nickerson’s expected return. So, the delay in providing the notification of the Show Cause Hearing was mostly caused by the unsuccessful efforts to agree upon a hearing date. [ 104 ] Further, the Department materials were comprised of prior email correspondence with Fisher Direct’s lawyer, the Application for Show Cause Hearing, and the letter of intention to impose the impugned amendments, with accompanying affidavit of service on Mr.

Nickerson, Fisher Direct. Those are all materials that were already in the possession of Fisher Direct, its lawyer, or both. [ 105 ] Therefore, the delay in the notification of Show Cause Hearing enclosing them had little or no impact upon Fisher Direct’s ability to prepare for the Hearing. As such, it did not amount to a denial of the procedural fairness owed to Fisher Direct. [ 106 ] Fisher Direct wanted to push the matter to January 2023 because Mr.

Nickerson wanted to vacation in Florida before the start of the impending lobster season, which would be busy until at least January. [ 107 ] Fisher Direct had participated in an earlier show cause hearing process following it entering a guilty plea to the charge in question, which guilty plea was withdrawn prior to that show cause hearing. It knew of the expeditious nature of the show cause hearing process and of the 30-day timeline for the hearing. It knew the October 11 deadline for submitting the Application.

November 1, 2022, its lawyer was asked whether Fisher Direct could be available for the Show Cause Hearing on November 14, 2022. He responded he would check with his client. November 2, he advised the Registrar that Mr. Nickerson would be out of the Country from November 3, 2022 to November 25, 2022, the Friday before the lobster season was scheduled to start on Monday the 28th. [ 108 ] The Chair was informed of that on November 1 and responded on November 4 that the Show Cause Hearing needed to be completed by November 18.

Fisher Direct was given the option of an in-person hearing with written submissions and supporting documents to be filed by November 10, or a hearing by written submissions only to be provided by September 16. November 7, Mr. Fraser emailed the Chair stating he was not ready to set hearing dates because Mr. Nickerson had gone on a pre-planned vacation to Florida and wanted to attend the Show Cause Hearing in person. [ 109 ] The Chair sent the November 10 email notification of Show Cause hearing maintaining the same options. [ 110 ] Sunday, November 13, Mr.

Fraser proposed, as a compromise, that the hearing take place November 22 or 23, with Mr. Nickerson appearing virtually through TEAMS, and with materials to be submitted by November 16. On November 14, the Chair informed Mr. Faser that the Panel had accepted his proposal. [ 111 ] The Show Cause Hearing took place on November 22 in accordance with those compromise terms. [ 112 ] I agree with the Minister that adjournment to January would not have been reasonable. It would have been way beyond a reasonable deviation from the established fair procedural timelines I have outlined.

It would not have struck an appropriate balance between a reasonably prompt determination and the ability of the Licence Holder to properly present its case. It would have unreasonably delayed the matter merely to accommodate preferences of Fisher Direct which were unconnected to its ability to present its case fully and fairly. [ 113 ] I highlight that Fisher Direct has not pointed to anything that it would have presented or withheld if it had more time to prepare. [ 114 ] The date ultimately chosen was very close to the start of the lobster season.

A date closer to, or in, the lobster season would have required Mr. Nickerson to divert some of his attention from Fisher Direct’s business. [ 115 ] Further, more likely than not, the request to adjourn to January was to ensure that Mr. Nickerson could continue being involved in all of Fisher Direct’s operations throughout the lucrative fall lobster season, not to allow more time to prepare for the Show Cause

Hearing. [ 116 ] For these reasons, I find that the date selected for the Show Cause Hearing fulfilled the duty of procedural fairness. Manner of Appearance [ 117 ] The Chair offered an in-person oral hearing as an option. It is the option that Fisher Direct selected. [ 118 ] The Hearing proceeded orally with Fisher Direct’s lawyer physically present, and Mr. Nickerson present virtually via TEAMS. There is no indication that Mr.

Nickerson was not able to fully participate in the Hearing through that means. [ 119 ] As noted by the Minister, such virtual appearances are quite common, even in judicial proceedings involving liberty interests such as habeus corpus applications. They are also sometimes used for bail hearings and even for criminal trials. [ 120 ] The proceeding in the case at hand was an administrative one which did not involve liberty interests.

It involved commercial interests. [ 121 ] In the circumstances, the virtual appearance satisfied the request for an in-person appearance. [ 122 ] Even if I am wrong in that conclusion, it is Mr. Nickerson who made the choice to appear virtually. He could have travelled back from Florida a few days early to be physically present. Therefore, any procedural defect arising from the manner of appearance was created by Mr. Nickerson, not the Panel Chair or the Registrar. [ 123 ] Therefore, I find that there was no breach of procedural fairness arising from the manner of appearance.

Reviewing Recommendations and Making Additional Submissions [ 124 ] As I have concluded that Fisher Direct was not entitled to review the Panel’s Recommendations and make additional submissions, the absence of that opportunity is not a breach of procedural fairness requirements. Conclusion on the Procedural Fairness Issue [ 125 ] For these reasons, I find that the process leading to the Panel’s recommendation and the Minister’s decision was procedurally fair.

ISSUE 3: WHETHER THE MINISTER PROVIDED SUFFCIENT REASONS. [ 126 ] Fisher Direct submits that that the Minister’s reasons are insufficient “even when read in conjunction with the Record”. Fisher Direct includes, as potentially part of the Minister’s reasons, the content of the letter of Intent to Amend.

However, it does not include the content of the Panel’s Advice to Minister. [ 127 ] The Panel’s comments are to be considered as part of the Minister’s reasons, as was done with the notes of the reviewing officer in Baker , supra (see paragraph 44 ). [ 128 ] The Panel’s comments address many of the purported gaps advanced by Fisher Direct, including the following: - The general justification for the decision is found in the Panel’s “Analysis”.

It includes discussion of: whether there was a contravention of Fisher Direct’s licence conditions; whether the Department had authority to make the licence amendments in question; and, the information presented by Fisher Direct regarding financial impact, newly implemented due diligence measures, continued dealings with the buyer who delivered the FSC lobsters underlying the conviction, and the systemic lack of a traceability in the industry. - The question of Fisher Direct’s continued viability, given that Mr.

Nickerson is the key person in its direction and operations, was considered by the Panel which recommended that the Minister have regard to it. [ 129 ] Therefore, I disagree that there is a reasoning gap, or a failure to engage with Fisher Direct’s evidence, in relation to those points. [ 130 ] However, I agree with Fisher Direct that it is not “apparent” in the reasons, including the Panel’s comments, read in conjunction with Record, why the Minister chose not to follow the Chican Case precedent more closely.

I agree with Fisher Direct that an administrative decision-maker who chooses to depart from its own established precedent bears the burden of justifying that departure: Vavilov , para 131 . [ 131 ] Nevertheless, I agree with the Minister that such a gap is not necessarily fatal, given the following comments of the Supreme Court of Canada in Newfoundland and Labrador Nurses’ Union v.

Newfoundland & Labrador (Treasury Board) , 2011 SCC 62 , at paragraphs 14 to 16 : [14] Read as a whole, I do not see Dunsmuir as standing for the proposition that the “adequacy” of reasons is a stand-alone basis for quashing a decision, or as advocating that a reviewing court undertake two discrete analyses — one for the reasons and a separate one for the result (Donald J. M. Brown and John M. Evans, Judicial Review of Administrative Action in Canada (loose-leaf), at §§12:5330 and 12:5510).

It is a more organic exercise — the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes.

This, it seems to me, is what the Court was saying in Dunsmuir when it told reviewing courts to look at “the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes” (para. 47). [15] In assessing whether the decision is reasonable in light of the outcome and the reasons, courts must show “respect for the decision-making process of adjudicative bodies with regard to both the facts and the law” ( Dunsmuir , at para. 48).

This means that courts should not substitute their own reasons, but they may, if they find it necessary, look to the record for the purpose of assessing the

reasonableness of the outcome. [16] Reasons may not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would havepreferred, but that does not impugn the validity of either the reasons or the result under a reasonableness analysis. A decision-maker isnot required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion (ServiceEmployees’ International Union, Local No. 333 v. Nipawin District Staff Nurses Assn., (SCC), [1975] 1 S.C.R. 382, atp. 391).

In other words, if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it todetermine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met. [132] This same approach was confirmed by the majority in Vavilov, which stated, at paragraphs 91 and 94: [91] A reviewing court must bear in mind that the written reasons given by an administrative body must not be assessed against astandard of perfection.

That the reasons given for a decision do “not include all the arguments, statutory provisions, jurisprudence orother details the reviewing judge would have preferred” is not on its own a basis to set the decision aside: Newfoundland Nurses, at para.16. The review of an administrative decision can be divorced neither from the institutional context in which the decision was made norfrom the history of the proceedings. …. [94] The reviewing court must also read the decision maker’s reasons in light of the history and context of the proceedings in whichthey were rendered.

For example, the reviewing court might consider the evidence before the decision maker, the submissions of theparties, publicly available policies or guidelines that informed the decision maker’s work, and past decisions of the relevantadministrative body.

This may explain an aspect of the decision maker’s reasoning process that is not apparent from the reasonsthemselves, or may reveal that an apparent shortcoming in the reasons is not, in fact, a failure of justification, intelligibility ortransparency. … [133] Therefore, whether this gap in the reasons regarding justification for departing so far from the Chican precedent proves fatal to theMinister’s decision will depend on whether there is anything in the Record which explains or reveals the Minister’s reasoning processreasonably justifying the departure. [134] That will be considered is assessing whether the Minister committed a reviewable error in deciding to impose the impugnedamendments to Fisher Direct’s licences.

ISSUE 4: WHETHER THE MINISTER COMMITTED A REVIEWABLE ERROR IN DECIDING TO AMEND FISHERDIRECT’S LICENCES. [135] Fisher Direct submits that the Minister’s decision was unreasonable because it was arbitrary, disproportionate and did notmeaningfully account for the issues raised. [136] It also discussed an analysis based on penal sentencing principles. However, I agree with the Minister that I am not reviewing asentencing decision. Some sentencing principles inform the reasonableness assessment, such as proportionality and, to the extent ofjustifying departure from precedent, parity.

However, I am not to assess whether the Minister committed a palpable and overriding errorusing the sentence appeal framework. [137] Rather, I am to assess whether the Minister’s decision was within the range of reasonable means to address Mr. Nickerson’sconviction in a way that would help protect the “orderly development of the fisheries industry”.

To use the phraseology in Dunsmuir v.New Brunswick, 2008 SCC 9, at paragraph 47, cited with approval in Vavilov, at paragraph 86, I am to determine “whether the decisionfalls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”. [138] The Minister acknowledges that the sanction he imposed is severe but submits that severe sanctions are sometimes required todeter non-compliance with a regulatory regime. In support, he cites Guindon v. Canada, 2015 SCC 41. [139] Guindon, at paragraphs 77 to 85, made comments to that effect.

It did so in the process of determining whether monetary penaltiestotalling $546,747 for non-compliance with the Income Tax Act were penal consequences or merely administrative monetary penalties,noting that monetary penalties could potentially fit in either category. The case at hand does not involve a direct monetary penalty,though the amendments would likely have a significant financial impact on Fisher Direct.

However, I agree with the Minister that I am toconsider whether the severe sanction imposed in the case at hand was reasonably required to ensure compliance with the regulatoryscheme under the FCRA, by ensuring that discovered breaches of licence conditions do not become “the cost of doing [non-compliant]business”. [140] Fisher Direct submits that the sanction imposed in the case at hand could only be reasonable if it was more in-keeping with thatimposed in the Chican case. [141] The Minister submits that the Chican case is distinguishable on the following bases: - Chican “was convicted under the Safe Food for Canadians Act and the Customs Act regarding the mislabelling of American lobster asCanadian in origin”.

These convictions “concern labelling and export of fish which has a more federal aspect”. - A two-week licence suspension was imposed on Chican. Fisher Direct can still operate under its licences without Mr. Nickerson’sparticipation. [142] However, I highlight the following points which minimize the distinguishing effects of these bases advanced by the Minister. [143] Mr. Nickerson was convicted under the Federal Fisheries Act, which is also clearly a federal domain.

[ 144 ] Chican did not need the licence in question to export lobster, its primary business, nor to buy from other lobster buyers. It only needed it to buy lobster directly from fishers and to sell lobster within Nova Scotia. The two-week licence suspension imposed on Chican started March 1, 2023. That is during the slowest part of the lobster fishing season in Nova Scotia, when the landed catches are generally at their lowest. As such the financial impact on Chican would be minimal. [ 145 ] In contrast, the two-year prohibition of Mr.

Nickerson’s participation would encompass two very lucrative fall seasons (during which up to 80% of the harvest is landed) and two late-spring seasons which are still quite lucrative compared to the first two weeks in March. The evidence is clear that Mr. Nickerson is a key player in Fisher Direct’s operations, and there is no one who can reasonably replace him. Its business would likely plummet without his involvement, potentially driving Fisher Direct into bankruptcy. In fact, Mr. Nickerson testified that it would drive Fisher Direct into bankruptcy.

He is the only one that deals with the approximately 20 boats Fisher Direct buys from and has developed a solid rapport and trusting relationship with them. His inability to do so for two years would risk losing some, or all, of that supply of lobster. [ 146 ] Mr. Nickerson also highlighted his experience, efforts, and successes in relation to export and development of foreign markets, as well as the fact that he manages the grading and handling of product. The amendments do not prevent him from continuing those portions of Fisher Direct’s business as the licences in question are not required for those tasks.

However, loss of a fleet of fishers to supply lobsters for the export markets would detrimentally affect the markets Mr. Nickerson has worked to develop. [ 147 ] Nothing in the reasons or record indicates that the Minister did not accept that the detrimental effects to Fisher Direct, and thus its 55 employees, advanced by Mr. Nickerson, were likely to occur. [ 148 ] There is one distinguishing feature that might justify some departure from the type of sanction imposed in Chican .

That feature is that there is no indication in the Record that the mislabelling of U.S. lobsters as Canadian lobsters was an ongoing or pervasive problem in the industry, requiring significant general deterrence of the activity. In the case at hand, the Notices to lobster buyers and the letter from the fishers’ associations, which I will discuss further later, highlight that dealings in FSC lobster have been an ongoing and prevalent problem that has created tensions in many fishing communities.

Therefore, there was more reason for the Minister’s decision in the case at hand to send a deterrence message to the industry at large, and more political pressure to do so. [ 149 ] However, the sanction chosen to send that message must still be within a range of reasonable and acceptable measures. It cannot be akin to using a sledgehammer to drive a finish nail. Otherwise, it will do more harm than good. [ 150 ] In addition, other contrasts between the Chican case and the case at hand militate in favour of a more lenient penalty, or at least a more comparable penalty, in the case at hand.

They include the following: - Chican was convicted of two offences. Mr. Nickerson was only convicted of one. - Chican exported 63,000 pounds of lobster from the United States which was falsely labelled as product of Canada. Mr. Nickerson pled guilty to possessing 47 FSC lobsters. They were part of a 3000-pound lot of lobsters they were floating (ie. holding in their tanks) for Golden Claw Lobster Corporation, a lobster buyer, with the potential of negotiating purchase of the lot. Floating for others, at a fee, is a big part of Fisher Direct’s business.

It has two facilities which, in combination, can hold 800,000 pounds of lobster. They handle 3 to 4 million pounds per year. So, this floating was a normal part of a high-volume business and the 47 FSC lobsters were a miniscule amount. - Chican’s offending behaviour was intentional and deliberate and it continued from May to October 2019. The possession of FSC lobster by Mr. Nickerson arose from lack of due diligence and only lasted from September 10-11 of 2018, effectively one day. - The total monetary penalties imposed by the Provincial Court were $50,000 for Chican, and $20,000 for Mr. Nickerson.

The parties agree that these monetary penalties are, at least to some extent, reflective of the respective severity of the offences. - Chican’s actions also constituted contraventions of the Licensing Regulations and the Fish Inspection Regulations , which are regulatory offences created under the authority of the FCRA . Mr. Nickerson’s actions did not involve a provincial regulatory offence. Therefore, Mr.

Nickerson’s infraction is not as closely connected to the applicable regulatory scheme as was that of Chican. [ 151 ] It is noteworthy that a person does not need a buyer’s licence to procure lobster from a licenced buyer. Therefore, the activity which formed the basis of Mr. Nickerson’s Fisheries conviction was not even an activity governed by the FCRA or the Regulations made pursuant to it. [ 152 ] It is also important to note what constituted lack of due diligence. There was no evidence that Mr. Nickerson knew Golden Claw was involved in the purchase of FSC lobster.

There were no markings or other indicia on the FSC lobsters which would distinguish them from lobsters caught under a commercial fishing licence. One could not tell they were FSC lobsters by looking at them. They were only identifiable as FSC lobsters because DFO Officers had removed them from FSC tagged traps, microchipped them and returned them to the traps.

The Officers were able to detect the microchipped lobsters using equipment designed for that purpose. [ 153 ] This lack of traceability makes it such that lobster buyers can easily find themselves with FSC lobster in their possession, without knowing they have them.

For example, even if they saw the lobster unloaded from a commercial fisher’s boat, they would not know whether that commercial fisher purchased FSC lobster “on the water” to add to their catch. [ 154 ] Watching to ensure that lobsters came from a commercially licenced fisher would arguably satisfy the due diligence required of buyers, at least if there was no reason to be suspicious of that commercial fisher. However, that requirement would render many transactions amongst buyers dangerous or not reasonably practicable.

The only deals that could be struck between buyers in a safe and reasonably practicable way would be those struck at the wharf where each buyer can watch where the lobsters are unloaded from and where they are delivered. Since all lobsters generally look the same, as soon as the buyer relinquishes control and sight of the lobsters, absent some sort of sealing process, they can no longer safely ensure their origin.

[ 155 ] Mr. Nickerson acknowledged he was not duly diligent enough regarding the 47 FSC lobsters in the case at hand as he did not take the screening of the lobster coming into his plant seriously enough. He explained he never dreamt something like that could happen, and now realizes how easily it can happen. In addition, he did not conduct the same inspection of the lobsters that he would when purchasing lobster because, at that point, he was only floating the lobsters for Golden Claw.

So, the quality of the lobster was not important to Fisher Direct. [ 156 ] Chican’s offences were clearly of a higher level of gravity than that of Mr. Nickerson. Plus, they were deliberately committed, importing a higher degree of responsibility than was the case with Mr. Nickerson, who did not know there were FSC lobsters in the lot he was floating and was only guilty of not being diligent enough in checking on the source of the lobsters. [ 157 ] It is clear and obvious that Mr.

Nickerson’s offending behaviour was far less serious than that of Chican. [ 158 ] In addition, he was fully cooperative with the DFO Officers who searched his plant. Plus, he asked them to get the FSC lobsters out of his plant and release them in the ocean. [ 159 ] Further, neither he nor Fisher Direct have any prior or subsequent infractions on their record. [ 160 ] In Chican , the individuals responsible for the deliberate mislabelling had been dismissed, diminishing the risk of reoffence. [ 161 ] However, in the case at hand, changes which reduce the risk of reoffence were also made. Mr.

Nickerson had first put in place a monitoring system which included sending employees to the wharf to confirm the source of lobsters which Fisher Direct intended to acquire from Golden Claw. Then, ultimately Fisher Direct stopped acquiring lobster from Golden Claw as its monitoring system was proving to be too onerous to make the transactions worthwhile.

He also put in place the following measures: - hiring an outside consultant; - vetting suppliers; - asking vendors to confirm they are not selling you FSC lobsters; - revising bills of lading to increase transparency in relation to delivery drivers; - refusing shipments with suspicious paperwork; - implementing an internal tagging system to trace the fishers and wharves from which Fisher Direct’s lobsters were purchased; and, generally keeping an eye out for anything out of the ordinary, that does not look right or does not feel right. [ 162 ] This applies to all lobsters coming into Fisher Direct’s plants, including lobster they will only be floating for others and not purchasing. [ 163 ] The Minister submits that the non-compliance in the case at hand has a significant impact on the orderly development of the fishing industry.

To the extent that it may help facilitate an illegal market for FSC lobster it does negatively impact the orderly development of that industry. However, the sanction imposed by the Minister also detrimentally impacts it. [ 164 ] Outside of the peak season buyers with well established markets, like Fisher Direct, often need to source lobster from other buyers (throughout Atlantic Canada) because they cannot obtain enough, from the fishers they buy directly from, to satisfy the demands of their customers.

If, by engaging in such dealings with other buyers, they risk facing a draconian sanction, such as that imposed by the Minister in the case at hand, they will shy away from doing so. The obvious result that would likely flow from that is an inability to supply their customers, and an ultimate loss of those customers. For a buyer like Fisher Direct, which purchases about 80% of its lobster second or third hand, it could easily decimate the market Mr.

Nickerson has spent years developing. [ 165 ] Similarly, being strictly diligent about the documentation and assurances required of vendors, and refusing to accept shipments, has resulted in vendors being irate with Fisher Direct. That sours relationships and jeopardizes further supply sources. [ 166 ] Such results would be detrimental to the orderly development of the fishing industry at large.

They are examples of how using a sledgehammer approach could do more harm than good to the industry. [ 167 ] The Minister points to the letter dated August 19, 2022, sent to him on behalf of 10 fishers’ associations in Nova Scotia and one in New Brunswick. That letter urges the Minister to revoke the buyer’s licence associated with Mr. Nickerson because of his fisheries conviction. It submits that a mere suspension would be seen as the cost of commercial dealings in FSC lobster.

The Minister suggests this letter highlights the importance to the industry of deterring purchase and sale of FSC product. [ 168 ] In addition, the Minister points to the notices sent to licenced buyers from 2018 to 2020 highlighting that dealing in FSC lobster “could result in the amendment, suspension or termination of the buyer’s licence in question”.

They submit these notices also highlight the importance to the industry of deterring commercial dealings in FSC lobster. [ 169 ] Leaving aside the moderate livelihood issue, which is currently before the courts in Nova Scotia, and yet to be determined, for reasons already canvassed in discussing whether the Minister exceeded his jurisdiction, and in discussing features distinguishing Chican , deterring purchase and sale of FSC lobster is a valid objective to assist in the orderly development of the fishing industry.

However, that does not mean that proportionality can reasonably be sacrificed on the alter of deterrence, with any level FSC-related infraction leading to a sanction having severe financial repercussions which threaten the viability of the buyer’s business. [ 170 ] Deliberately falsely marketing 69,000 pounds of United States lobster as Canadian lobster, over multiple months, has a greater negative impact on the orderly development of the fishing industry than unknowingly holding 49 FSC lobsters for a third-party, for

effectively one day, as part a 3000-pound lot, in facilities that can hold 800,000 pounds. [ 171 ] In addition, the first Notice to Licence Holders is dated September 10, 2018. That is the day that the FSC lobsters in question made there way into Fisher Direct’s plant. They were seized by DFO Inspection Officers the next day. It is unclear whether Fisher Direct received the Notice on September 10, 2018 or on some later date.

However, even if it was received on September 10, Fisher Direct did not have time to implement any measures to minimize the risk of inadvertently coming into possession of FSC lobsters. [ 172 ] There is no indication in the reasons or Record that the Minister considered whether Fisher Direct had time to implement better due diligence measures before the search and seizure. [ 173 ] There is nothing in the reasons for the Minister’s decision, nor in the Record as a whole, which reveals any intelligible or transparent justification for straying so far from the type of sanction imposed in Chican , and imposing a sanction that is many times more severe, despite the circumstances and degree of non-compliance being less severe, even considering that FSC lobster dealings were a more pervasive problem. [ 174 ] Vavilov , at paragraph 79 , stated: “Reasons shield against arbitrariness as well as the perception of arbitrariness in the exercise of public power”. [ 175 ] The grossly disproportionate severity of the sanction imposed in the case at hand, and the lack of any discernable reasonable justification for it, make it such that the Minister’s decision was arbitrary. [ 176 ] The Nova Scotia Motor Vehicle Act clearly delineates the driver’s licence suspensions that are to be imposed in response to various Criminal Code convictions related to drinking and driving and to driving while prohibited due to a drinking and driving offence.

The FCRA contains no such clear guidelines for imposition of new licence conditions in response to Fisheries Act convictions. That creates a risk of arbitrary imposition of licence conditions.

However, it does not justify it. [ 177 ] The Minister’s choice of sanction must still be justifiable as an outcome within an acceptable range of reasonable outcomes. [ 178 ] Vavilov , at paragraph 131 , stated: Whether a particular decision is consistent with the administrative body’s past decisions is also a constraint that the reviewing court should consider when determining whether an administrative decision is reasonable. Where a decision maker does depart from longstanding practices or established internal authority, it bears the justificatory burden of explaining that departure in its reasons.

If the decision maker does not satisfy this burden, the decision will be unreasonable. [ 179 ] In the case at hand, the Minister has failed to justify the disproportionately severe sanction imposed, which completely departs from the sanction imposed in the Chican case to an extent that cannot be justified by the prevalence of the FSC lobster dealing issue. [ 180 ] I am mindful of the comments of Stratas, J.A., cited with approval by the Supreme Court of Canada in Benhaim v. St.

Germain , 2016 SCC 48 , at paragraph 38 , that to satisfy the palpable and overriding error test “it is not enough to pull at leaves and branches and leave the tree standing, the entire tree must fall”. [ 181 ] In the circumstances, the sanction imposed is far more than reasonably necessary to send the message that sanctions arising from convictions for possession of FSC lobster will be greater than the cost of doing business.

It would send the message that possession of a relatively few FSC lobsters, solely because of lack of due diligence occasioned because the lobsters are being floated for a third party, in an industry which lacks traceability, could easily result in the demise of your business, irrespective of whether you have an unblemished track record. [ 182 ] Such draconian sanctions, for the nature of the possession in the case at hand, might be “within a range of possible, acceptable outcomes which are defensible in respect of the facts and law” where the person possessing the FSC lobsters knows they are FSC lobsters, or is wilfully blind of, or reckless as to, that fact, or has a sufficient history of such possession through lack of due diligence.

Those are the industry participants who are responsible for the FSC lobster dealing “problem”. There is no indication in the record that Fisher Direct or Mr. Nickerson were amongst those. [ 183 ] A decision to impose such an extreme sanction in a situation that could easily happen to any lobster buyer who deals with other buyers, through a one-time momentary lapse in due diligence, like the situation in the case at hand, is fundamentally flawed and patently unreasonable. It does more harm than good to the orderly development of the fishing industry. Therefore, it cannot stand. The entire decision must fall.

For these reasons, I find that the Minister made a palpable and overriding error in imposing the licence amendments in question. CONCLUSION [ 184 ] Based on the foregoing, I: - allow Fisher Direct’s appeal; - order that the Minister’s November 25, 2022 decision to amend Fish Buyers Licences BL#2484 and BL#2538, and Fish Processors Licence PL#2539, is of no force and effect; and, - remit the matter back to the Minister for reconsideration. ORDER [ 185 ] I ask Counsel for Fisher Direct to prepare the Order.

COSTS [ 186 ] If the parties are unable to agree on Costs, I will receive submissions in writing on the issue. Pierre Muise, J.