Date: 19981130
Docket: T-192-98
BETWEEN:
RADIL BROS. FISHING CO. LTD.,
Plaintiff
AND:
HER MAJESTY THE QUEEN, as represented by the
DIRECTOR GENERAL OF THE DEPARTMENT OF
FISHERIES AND OCEANS, PACIFIC REGION, and
BRITISH COLUMBIA PACKERS LIMITED and
TITAN FISHING LTD.,
Defendants
REASONS FOR ORDER
ROULEAU, J.
[1] This is an application for an order pursuant to Rule 214(2) of the Federal Court Rules granting summary judgment dismissing that part of the plaintiff's Statement of Claim set out in paragraphs (a) and (b) of the prayer for relief as against Her Majesty the Queen and paragraphs (a), (b) and (c) of the prayer for relief as against the defendant Titan Fishing Ltd.
[2] The plaintiff, Radil Bros. Fishing Co. Ltd., is the owner of the fishing vessel SEACREST, an eighty-six foot fishing vessel used to fish for groundfish in the British Columbia Trawl Fishery. The plaintiff purchased the SEACREST, together with groundfish T licence 0008, ("T8") in 1986. Groundfish "T" licences are issued for a commercial fishing vessel and permit the holder to engage in fishing for groundfish by means of trawl gear. The licences are issued annually and an application must be made by the owner of the vessel or the representative of the reported vessel owner.
[3] On January 13, 1993, the defendant British Columbia Packers Limited ("B.C. Packers"), which was authorized to apply for commercial fishing licences on behalf of Radil Bros., applied for licence T8. The licence was issued by the Department of Fisheries and Oceans on January 22, 1993.
[4] Accordingly, on August 3, 1993, B.C. Packers made application to the Department of Fisheries and Oceans to transfer groundfish licence T8 from the SEACREST to the PACIFIC EAGLE and the salmon and groundfish licence T92 from the PACIFIC EAGLE to the SEACREST. On the same date, the plaintiff was advised by B.C. Packers that the "A" licence previously held by the PACIFIC EAGLE had been transferred and issued to the SEACREST.
[5] In 1995, the defendant Titan Fishing Ltd. purchased the PACIFIC EAGLE. As part of the sale transaction, licence T8, formerly the licence of the SEACREST, was transferred to Titan. At the time that Titan purchased the PACIFIC EAGLE, it was common knowledge within the industry that an individual vessel quota ("IVQ") system was likely to be introduced by the Department of Fisheries and Oceans and that such a system would rely on either length of a vessel or the landings history of a vessel or a combination of the two. The landings history of the SEACREST, attributable to licence T8, was substantially greater than the landings history of the PACIFIC EAGLE, attributable to licence T92.
[6] On March 18, 1997, the Department mailed a notice to groundfish trawl licence holders advising that the Minister of Fisheries and Oceans had approved the implementation of a new Groundfish Trawl Management Plan that introduced IVQs into the groundfish trawl fishery. Included with the letter, was the 1997/1998 Groundfish Trawl Fishery Management Plan which provided that the IVQ allocation formula for groundfish trawl was to be based 70% on average catch of groundfish during the five year period between 1988 to 1982 and 30% on vessel length. The information used to calculate the IVQ allocation for the SEACREST was enclosed with the letter of March 18, 1997.
[7] Prior to 1997 and the introduction of IVQs, there was no difference between licence T8 and licence T92 as far as eligibility to fish groundfish. However, after the implementation of the IVQ allocation formula, the transfer of licence T8 from the SEACREST and the replacement of that licence with licence T92, resulted in the vessel being assigned a significantly lower quota than it would otherwise have been entitled to.
[8] After receiving the March 18th letter, the plaintiff made enquiries of the Department with respect to when and how licence T8 had been transferred from the SEACREST. Radil Bros. maintained that when it purchased the Class A license in 1993, it was not aware that there had been a transfer of the T licences as well and that it had continued to operate on the assumption that it still held licence T8. On October 6, 1997, the Department advised the plaintiff that "Commercial Licence Unit records indicate that on August 3rd, 1993 groundfish trawl (T) licence 0008 was transferred from CFV 20308 MV "SEACREST" to the CFV 23297 MV "PACIFIC EAGLE" and groundfish trawl (T) licence 0092 was transferred from the MV "PACIFIC EAGLE" to the MV "SEACREST".
[9] The plaintiff's solicitors wrote to the Minister of Fisheries and Oceans on October 10, 1997, requesting confirmation that licence T8 would be issued to Radil Bros. in 1998. On December 12, 1997, the Minister replied advising that regional officials were investigating into the matter and would be in contact. The plaintiff's solicitors wrote to the Director-General, Pacific Region on December 29, 1997, requesting a response. By February 4, 1998, at the time of filing its Originating Notice of Motion, no response had been received from either the Minister or the Director-General, Pacific Region with respect to the issuance of licence T8.
[10] In its application for judicial review, the plaintiff sought an order of mandamus requiring the Minister and the Director-General of the Department of Fisheries and Oceans, Pacific Region, to make a decision with regard to the issuance of licence T8 to the plaintiff for the 1998-99 fishery; a declaration that the transfer of licence T8 on August 3, 1993, was unauthorized, illegal, invalid or otherwise ineffective and that the plaintiff is the rightful holder of the licence; and, a declaration that the plaintiff is entitled to be issued licence T8 for the 1988-99 fishery and is entitled to the individual vessel quota issued to licence T8 in 1997.
[11] On February 23, 1998, the defendant Titan Fishing Ltd., brought an Originating Notice of Motion seeking an order striking out the plaintiff's application as an abuse of process or, in the alternative, to have the application treated and proceeded with as an action. Campbell, J. dismissed the defendant's application to strike but directed that the matter was to proceed as an action. In his Reasons for Order, Campbell J. stated as follows:
| The most striking factor in this case is that the heart of the case is really the 1993 commercial transaction regarding the licences, and it is really a feature which follows from that that the Department of Fisheries proceeded with the licensing in relation to this transaction. Therefore, I find that the application for relief as requested here by Radil Bros. against the Director General, Department of Fisheries, is really inextricably tied to the transaction itself. |
| Regarding the kind of relief sought, I am satisfied that the relief cannot be properly determined without a complete investigation of the 1993 transaction, which cannot be done, in my opinion, on a judicial review. |
| I think it is necessary to discover the necessary facts of the 1993 transaction. It is also important that at the trial of this case that the witnesses testify, their demeanour be observed and their credibility be tested. Obviously, in this respect, a judicial review on affidavits will not suffice. |
| Also in terms of the custom between Radil Bros. and B.C. Packers, which is, I think, a live issue in this case, it is necessary that there be discovery and viva voce evidence at trial. That is, regarding the custom, there is a need for all the issues to be considered, in particular the question of consent and the question of agency between Radil Bros., and B.C. Packers, which I am satisfied an also only be resolved on the discovery and viva voce evidence. |
. . .
| Therefore, in the interests of justice and to be fair, particularly to Titan, this case should be converted to an action. |
| For these reasons, I decline the application to strike the originating notice but grant the application to convert this to an action under Section 18.4(2) of the Federal Court Act. |
[12] Thereafter, on March 24, 1998, the plaintiff filed a Statement of Claim seeking a declaration against the Crown and the defendant Titan Fishing Ltd. that the transfer of licence T8 was invalid and that the plaintiff is entitled to be issued the licence. However, unlike the Originating Notice of Motion, the Statement of Claim also seeks damages from the Crown and the defendant B.C. Packers Limited.
[13] The defendant Titan Fishing Ltd. now brings a summary judgment application seeking an order striking out the relief sought against it in the Statement of Claim and striking out the claims against the Crown which seek a declaration that the transfer of licence T8 was invalid and that the plaintiff is entitled to be issued the licence. Titan maintains that the relief claimed is time barred as it is being sought outside the time limits prescribed in subsection 18.1(2) of the Federal Court Act.
[14] The purpose of the summary judgment provisions in the Federal Court Rules is to allow the Court to summarily dispense with those cases which it considers ought not to proceed to trial because there is no genuine factual dispute between the parties. It is a determination to be made on the particular circumstances of each case and on the law and the facts submitted in support of the claim or defence.
[15] A motion for summary judgment is not intended, and should not be treated, as a substitute for a trial. In determining whether a trial is unnecessary and would serve no purpose, a motions judge has a restricted function and must guard against assuming the role of a trial judge and deciding the issues between the parties. Provided a genuine issue exists with respect to the material facts, it matters not how weak or strong the impugned claim or defence may be. The case should proceed to trial in order that the issue may be resolved by the trial judge. Accordingly, summary judgment should only be granted in the clearest of cases.
[16] In my view, granting summary judgment would not be appropriate in the present case. First, I do not agree with the defendant's contention that the judicial review relief being sought is time barred. After it was notified that the IVQ attributed to the SEACREST was with respect to licence T92 rather than licence T8, the plaintiff made inquiries of both B.C. Packers and the Department of Fisheries for an explanation as to why licence T8 was no longer in the name of Radil Bros. Fishing Co. Ltd.. At the time, fishing licences for 1997 had already been issued and were to expire on December 31, 1997. New licences were to be issued after January 1, 1998.
[17] Once the plaintiff received the information indicating how the transfer of the licences had taken place, it made submissions to both the Minister of Fisheries and Oceans and the Department with respect to the issuance of the T8 license for the 1998 fishing year.
[18] In 1997, an Appeal Board was established to hear appeals regarding the groundfish IVQ programme. Its mandate included the determination of whether extenuating circumstances or relevant information existed which warranted deviation from the existing allocation assigned to a licence. The plaintiff made submissions to the Pacific Region Licence Appeal Board but on January 16, 1998, the Board advised the plaintiff that it would not hear the appeal and would not make a recommendation to the Minister. The plaintiff then commenced its judicial review action in this Court on February 3, 1998.
[19] Given these facts, I am satisfied that the plaintiff acted with due diligence once it ascertained it no longer held licence T8. Nor should it be penalized for attempting to exhaust all remedies available to it prior to commencing its judicial review application in this Court. In this regard, it was quite proper for the plaintiff to seek a determination or recommendation from the Appeal Board prior to filing its Originating Notice of Motion.
[20] Furthermore, I agree with Campbell, J. that the dispute between the parties here cannot be properly determined without a complete investigation of the 1993 transaction which resulted in licence T8 being transferred from the plaintiff. There is a genuine issue with respect to the nature of the relationship and the custom between the plaintiff and the defendant B.C. Packers. These are matters which are properly determined by way of discovery and viva voce evidence. In short, the evidence raises a number of valid issues of fact and law, but does not, in its present state, allow for a determination of any one of them. There still remain many unanswered questions.
[21] For these reasons, the application for summary judgment is dismissed.
[22] However, the conversion of a judicial review application into an action does not entitle the plaintiff to subsequently file a Statement of Claim wherein different relief is sought than that set out in the Originating Notice of Motion. The purpose of Rule 18.2(4) is to permit a judicial review application to be proceeded with as if it were an action; that is, with discoveries, and the presentation of witnesses and their viva voce evidence. It does not create a new cause of action nor does it permit a party to seek new or additional relief than that originally sought.
[23] Accordingly, I am striking out the prayer for relief in the plaintiff's Statement of Claim and allowing it thirty days to file an amended Claim which seeks the same relief as set out in its Originating Notice of Motion.
[24] In all other respects, the defendant's application is dismissed.
JUDGE
OTTAWA, Ontario
November 30, 1998