Maritime Fishermen’s Union, Local 4 Appellant v. Minister of Fisheries v. Aquaculture, of the Province of Nova Scotia, 2016 NSSC 197

SUPREME COURT OF Nova Scotia Citation: Maritime Fishermen’s Union, Local 4 v. Nova Scotia (Fisheries and Aquaculture) , 2016 NSSC 197 Date: 20160727 Docket: Hfx No. 438061 Registry: Halifax Between: Maritime Fishermen’s Union, Local 4 Appellant v. Minister of Fisheries and Aquaculture, of the Province of Nova Scotia Respondent Decision Judge: The Honourable Justice Gerald R.P.

Moir Heard: June 30, 2015, in Halifax, Nova Scotia Counsel: Raymond Larkin, Q.C., for the Appellant Alison Campbell, for the Respondent Introduction [ 1 ] The Maritime Fishermen’s Union has represented fishermen and fisherwomen of Nova Scotia and New Brunswick since the 1970s. Members of Local 4 hold licenses to fish inshore from the New Brunswick border to the border between Inverness and Victoria counties. [ 2 ] In 2002, Local 4 became accredited under the former Fisheries Organizations Support Act and Regulations to represent its members in region one.

Nearly ten years later, new legislation and regulations came into effect. The new regulations included a grandfather provision for organizations accredited under the old legislation. [ 3 ] In 2015, the Minister of Fisheries and Aquaculture revoked the union’s accreditation because its membership was less than a minimum established under the new legislation. The union appealed. The issue is whether the Minister’s

interpretation of the grandfather provision and membership criteria provisions, applying the minimum membership criteria to an organization accredited under the old statute, is within the range of reasonable

interpretations of the statute and regulations. [ 4 ] This decision was reserved on June 30, 2015. Unfortunately, my systems for keeping track failed. I have apologized to the parties. Standard of Review

[5] The parties submit that the decision to revoke deserves deference. It is to be reviewed for reasonableness, not correctness. Iagree. [6] The issue comes here by appeal as of right: Fish Harvester Organizations Support Act, s. 10(2). However, the decision turnsentirely on the Minister’s

interpretation of his home statute, and the issue is not truly jurisdictional. “[R]easonableness is normally thegoverning standard where the question… relates to the

interpretation of the tribunal’s enabling (or ‘home’) statute…”: Smith v. AlliancePipeline Ltd. 2011 SCC 7 at para. 26. [7] Counsel have reminded me of the meaning of the reasonableness standard as discussed in Agraira v. Canada (Public Safetyand Emergency Preparedness) 2013 SCC 36 and Egg Films Inc. v. Nova Scotia (Labour Board) 2014 NSCA 33. Principles of

Interpretation [8] The Minister determined that the membership criteria in the new regulations applied to grandfathered accreditations. Thiscourt must not interfere if that

interpretation of the new statute and regulations is within the range of reasonable outcomes, within therange of reasonable

interpretations. The principles of statutory

interpretations, and their application to this statute and these regulations,delineate the range of reasonable outcomes in the circumstance of this appeal. [9] The Minister refers to Cape Breton (Regional Municipality) v. Nova Scotia (Attorney General) 2009 NSCA 44 in support ofthe view that Professor Sullivan’s analytical framework should be applied. The Minister suggests independent analyses of, “(

a) thestatute’s textual meaning; (

b) the legislative intent; and (

c) the consequences of a proposed

interpretation.” [10] I do not think that Cape Breton v. Nova Scotia requires Professor Sullivan’s framework in all cases. See for example, paras. 18and 49 of Slauenwhite v.

Kiezer 2012 NSCA 20, where the majority and the minority followed Professor Driedger’s principle althoughthe trial judge had used Professor Sullivan’s analytical framework. [11] In my respectful opinion, courts must guard against two dangers if they embark on independent inquiries into text, legislativeintent, and consequences to interpret a statute. [12] First, in adopting Professor Driedger’s principle in Rizzo & Rizzo Shoes Ltd., (SCC), [1998] S.C.J. No. 2, theSupreme Court rejected an approach that favoured purpose over text. The purposive approach had a constitutional problem.

It isimpermissible for the judiciary to tell the legislature, “We know what your purpose was, you just got the words wrong.” The same can betrue on an independent inquiry into consequences. The consequences are for the legislature. [13] Secondly, the Driedger principle, like similar approaches adopted in fields outside law, such as literary criticism, insists oncontext. A judge who follows Professor Sullivan’s three step approach must guard against undermining the

interpretation of legislativetext in context. [14] Canada (Canadian Human Rights Commission) v. Canada (Attorney General) 2011 SCC 53 also concerned a review ofstatutory

interpretation at the reasonableness standard. Writing for the Court, Justices LeBel and Cromwell said at para. 33: The question is one of statutory

interpretation and the object is to seek the intent of Parliament by reading the words of the provision intheir entire context and according to their grammatical and ordinary sense, harmoniously with the scheme and object of the Act and the intention of Parliament (E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87, quoted in Rizzo & Rizzo Shoes Inc. Ltd. (Re), (SCC), [1998] 1 S.C.R. 27, at para. 21). In approaching this task in relation to human rights legislation, one must bemindful that it expresses fundamental values and pursues fundamental goals.

It must therefore be interpreted liberally and purposively so that the rights enunciated are given their full recognition and effect: see, e.g., R. Sullivan, Sullivan on the Construction of Statutes (5th ed. 2008), at pp. 497-500. However, what is required is nonetheless an

interpretation of the text of the statute which respects the wordschosen by Parliament. Text and Internal Context [15] Subsection 19(1) of the Fish Harvester Organizations Support Act gives the Minister powers to make these kinds ofregulations, among others: (

b) prescribing the process and requirement for establishing and maintaining an accredited organization as well as becoming amember of an accredited organization; (

c) prescribing the eligibility criteria for license holders in a region to vote on the establishment of an accredited organization; (

d) prescribing the required threshold of eligible voters for the establishment of an accredited organization; The statute does not expressly deal with organizations already accredited under the former Fisheries Organizations Support Act, whichwas repealed by s. 21 of the new statute. [16] Subsection 3(

a) of the new statute defines “accredited organization” to mean “an organization designated by the Minister thatmeets the accreditation requirement set out by the regulations”. Sections 7, 8, and 9 deal with the process of becoming accredited underthe new statute. Mostly this is left to regulations, but the statute does require a request by fishing license holders in s. 7(2), voting under s.8(1), dues along the lines of the Rand formula in s. 8(2), and consequences of a successful vote in s. 8(3). [17] Subsection 8(3) of the statute does not provide for automatic accreditation following a successful vote.

Rather, after asuccessful vote, “… the Minister… shall… invite organizations who meet the criteria prescribed by regulation to apply to the Minister

for accreditation…”. [ 18 ] Subsection 9(1) is tied to the provisions for new accreditations under s. 8(3): Every fish harvester organization that applies for accreditation pursuant to subsection 8(3) and that meets the criteria, prescribed by the regulations, shall be accredited by the Minister to represent license holders in the region. So, we see that the statute provides for a vote in favour of an organization, followed by an assessment of conformity with criteria, followed by accreditation.

Accreditation is mandatory if the two thresholds about vote and criteria are met. [ 19 ] The regulations provide several processes for establishing an accredited organization: a successful vote plus criteria that include minimum membership, a successful vote plus criteria that do not include minimum membership, and recognition of the vote and accreditation under the former statute and regulations. Regulations 5, 6, and 7 concern voting.

Regulation 8(2) concerns the required invitation following a successful vote. [ 20 ] Regulations 12 and 13 concern accreditation criteria, “[f]or the purposes of subsection 9(1) of the Act”. Regulation 12 provides criteria on primary purposes of the organization, annual dues, executive officers, directors, reporting to members, and compliance with corporate legislation.

Then it provides in s. 12(f): unless designated on a special sector basis…, the organization has, in each region represented by the organization, a membership of at least 100 license holders or 15% of the license holders in the region, whichever is the lesser number. [ 21 ] Organizations accredited on a special sector basis are the subject of Regulation 13. Subsection 13(1) reaffirms that the minimum membership criterion does not apply and s. 13(2) prescribes several criteria, only one of which need be established.

These denote narrower sectors than most organizations of license holders, such as “members… are geographically isolated”, “members… fish for specific species or use a specific type of fishing gear”, and “the membership is unique and separate”. [ 22 ] While s. 12 and s. 13 of the regulations are tied to s. 9(1) of the statute, s. 15 of the regulations expressly relates to maintaining accreditation: To maintain its designation as an accredited organization, an organization must submit all of the following to the Minister in writing on or before December 1 in each year: (

a) a current list of its members; (

b) a list of its current executive and board members; (

c) proof demonstrating active communication and opportunity for input as required by clause 12(d); (

d) proof that the organization has made all required filings and registrations with the Registry of Joint Stock Companies and is in good standing with the Registry of Joint Stock Companies. [ 23 ] Organizations such as Local 4 of the Maritime Fishermen’s Union did not have to undergo a new vote. Regulation 17 is titled “Transition”. Subsection 17(2) provides: An affirmative vote conducted in a region under the former Act is recognized as a vote in favour of having the region represented by an accredited organization under the Act and these Regulations.

Nor did the grandfathered organizations have to seek a new accreditation. Subsection 17(3) provides: An organization that on the coming into force of these regulations is an accredited organization under the former regulations continues as an accredited organization under the Act and these regulations. [ 24 ] The power of the Minister to revoke an accreditation is in s. 10(1) of the statute:

Where an accredited organization does not comply with the accreditation criteria established by the regulations, the Minister may, at any time, suspend, cancel or revoke the accreditation of the organization or, for a period, designate another accredited organization to represent the interests of the license holders in the region. The Decision and its Adequacy [ 25 ] The written record of the decision is a letter dated March 12, 2015. The body reads: The Fish Harvester Organization Support Registry shows that the Maritime Fishermen’s Union Local 4 does not have the minimum number of members to maintain accreditation in Region

Section 12 (

f) of the NS Fish Harvester Organization Support Regulations states: “… unless designated on a special sector basis as set out in subsection (13), the organization has, in each region represented by the organization, a membership of at least 100 license holders or 15% of the license holders in the region, whichever is the lesser number.” There are 617 core or independent core license holders in Region 1. In order to maintain accreditation, an organization must have a minimum of 93 members in region 1. Your organization has 42 members in Region 1.

The Minister has therefore revoked your accreditation as a multispecies organization in Region 1. Certifications for accredited organizations in Regions 1 and 2 will be sent out within five business days of this letter.

You have the right to appeal this decision, per the NS Fish Harvester Organization Support Appeal Regulations , and bring the issue before the Supreme Court of Nova Scotia no later than 30 days after the date of this decision. [ 26 ] “A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes.”: Dunsmuir v. New Brunswick 2008 SCC 9 at para. 47 .

Inadequacy of the articulation is not a stand-alone basis for interference, “… the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within the range of possible outcomes.”: Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board) 2011 SCC 62 at para. 14 .

The articulated reasons assist us “to understand why the tribunal made its decision” in order “to determine whether the conclusion is within the range of acceptable outcomes”: para. 16. [ 27 ] The decision under review is to be “viewed as a whole in the context of the record”: Construction Labour Relations v. Driver Iron Inc. 2012 SCC 65 at para. 3 . When, as in the present case, the decision offers no express

interpretation of legislative text upon which it was based, we must look to the decision, and the underlying record, to see whether the decision necessarily implies an

interpretation: Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association 2011 SCC 61 and Agraira v. Canada (Public Safety and Emergency Preparedness) 2013 SCC 36 . [ 28 ] The record shows that the Minister received a recommendation to change the regulations so the Maritime Fishermen’s Union could qualify on a special sector basis. No reasons were expressed for not following that course. Otherwise, the record makes it clear that the Minister was advised that s. 12(

f) of the regulations applied to the grandfathered union. [ 29 ] That same

interpretation of the regulations is necessarily implied in the written record of the Minister’s reasons. The Minister exercises his power to revoke, which can only be an exercise of his discretion under s. 10(1) of the statute. The discretion arises when “an accredited organization does not comply [in the sense of conform] with the accreditation criteria established by the regulations”. The only accreditation mentioned in the letter is s. 12(

f) of the regulations. So, the Minister implicitly decided that the criteria in s. 12 apply to grandfathered organizations, such as Local 4 of the Maritime Fishermen’s Union. Was the Minister’s

Interpretation Reasonable? [ 30 ] Local 4 argues that “In the grammatical and ordinary sense, Regulation 12(

f) does not apply to Subsection 10(1).” and “A liberal and purposive

interpretation of Regulation 17 is consistent with the objectives of the legislation.” For those objectives, the Local refers to the purpose prescribed by s. 2 of the statute. Giving effect to the grandfathering provisions in the regulations helps “[s]trengthen… fish harvester organizations in the Province”, as provided in s. 2(

a) of the statute and “[e]ncourage the development of a strong accredited organization structure that will evolve and assume responsibility for the license-holder collectively” in s. 2(d). [ 31 ] The Minister argues that the text does not support limiting Regulation 12 to new organizations or new accreditations. He makes these points: (1) “the only ‘accreditation criteria’ that could apply to the Appellant are the criteria listed in Regulation 12”;

(2) “For the purposes of section 9(1) of the Act” in Regulation 12 does not mean the regulation only applies to new accreditations or it would say “For the purposes only of section 9(1) of the Act”;

(3) Regulation 12(

f) says “the organization has… a membership of at least”, and the use of the present tense “suggests the requirement is an ongoing one”. [ 32 ] These criticisms of the

interpretation proposed by the Local are answered as follows. Firstly, Regulations 12 and 13 do not offer the only accreditation criteria. There is a third way to accreditation. An organization is accredited if it falls under the grandfather regulation, s. 17(3). [ 33 ] Secondly, the

interpretation of “For the purposes of section 9(1) of the Act” offered by the Minister deprives that phrase of meaning. When read in light of the legislative scheme described above and the apparent general purpose of permitting and funding collective representation, the phrase can only mean that s. 12 and s. 13 are limited to new accreditations. In any case, we must give meaning to all words in legislation. We cannot ignore the phrase. [ 34 ] Thirdly, legislative drafting strives for the present tense except when departure to other tenses is necessary. Restrictions based on tense are contrary to s. 9(1) of the

Interpretation Act . [ 35 ] In my estimation, the

interpretation offered by Local 4 is reasonable. Is it the only reasonable

interpretation? [ 36 ] Subsection 10(1) of the statute contemplated regulations that would establish accreditation criteria to which an accredited organization would have to conform. It gives the Minister discretion to “suspend, cancel or revoke the accreditation”. However, the regulations provide criteria for the purposes of s. 9(1) of the statute, applications for accreditation, and different requirements for maintaining accreditation. [ 37 ] As discussed, the maintenance provision is s. 15 of the regulations.

All accredited organizations must file “a current list of its members”, among other documents and proofs. “The Minister submits that one of the reasons why Regulation 15 requires a current list of members to be submitted each year is to ensure that the organization continues to meet the minimum membership requirement.” [ 38 ] The Minister submits “The intent behind the minimum membership requirement in Regulation 12(

f) is evident.” He says: The goal behind the Act is to strengthen the structure of accredited organizations in the Province. Regulation 12(

f) ensures the goal is met by preventing the creation of many tiny organizations. That is not apparent from the statute and regulations. They leave us somewhat in the dark about the purpose of the minimum membership requirement, especially as applied to grandfathered accreditations. [ 39 ] An organization needs the votes of fifty-one percent of the license holders to be able to apply for accreditation. That would be an indication of size and strength.

The required membership of one hundred is not tied to the number of license holders represented by the Union. [ 40 ] If there was a requirement of minimum membership for grandfathered organizations then there could well be a conflict between, on the one hand, a s. 17 accreditation with s. 15 supplying the only criteria for maintaining accreditation, and, on the other hand, s. 12 and 13 accreditation criteria being expressly tied to new accreditations. In such a circumstance, techniques for resolving statutory ambiguity would have to be employed and they might point to a reasonable

interpretation along the lines of the one implicitly adopted by the Minister. However, there is no explicit minimum membership requirement for grandfathered organizations. [ 41 ] There is no conflict between Regulations 12 and 17. One applies only to new accreditations, the other to grandfathered ones. Thus, there is no reasonable

interpretation except one that gives effect to the words “For the purposes of subsection 9(1) of the Act” in Regulation 12. Therefore, the accreditation of Local 4 is covered by Regulation 17, not Regulation 12, and the only maintenance provisions that apply to the Local are in Regulation 15. [ 42 ] To paraphrase Justices LeBel and Cromwell in the Canadian Human Rights Commission case, the foregoing is the only

interpretation of the text of the regulations that respects the words chosen by the subordinate legislator. Conclusion [ 43 ] I will grant an order setting aside the decision of the Minister, as recorded in the letter dated March 12, 2015. Moir, J.