Vancouver, British Columbia, February 19, 2007
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
and
IN RIGHT OF CANADA as represented by the
MINISTER OF FISHERIES AND OCEANS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application by the Respondent for an Order striking out the Applicant’s judicial review application filed on October 27, 2006 in which the following relief is sought:
1. An order in the nature of mandamus requiring the Department of Fisheries and Oceans forthwith to provide a decision to the applicant on his request for the return of the licence known as ZN/04…to the applicant .
2. A declaration that the transfer of nomination of the said licence was improper and invalid on the grounds that the transfer was not authorized by the applicant or approved by the Court as required by Court order.
[2] When filing his judicial review application, the applicant was self-represented.
Background
[3] Until July 29, 2003, Murray Reid (the Applicant) held a rockfish licence ZN/04 (the licence). That day, the Department of Fisheries and Oceans (DFO) transferred it to West Point Fisheries Ltd. (West Point) with written notice of transfer (nomination) provided to the Applicant.
[4] At the time of the transfer, the Applicant was in the midst of a divorce proceeding with Heather Bonita Reid (Mrs. Reid). Pursuant to an ex parte application, Mrs. Reid obtained from the Supreme Court of British Columbia on March 18, 2003 (the March 18, 2003 Order) an order, inter alia, that the licence “currently listed for sale…shall be sold”.
[5] The March 18, 2003 Order further provided Mrs. Reid “shall have exclusive conduct of the sale of the assets” with clause 3 of the order stipulating “the sale of any asset shall be subject to Court approval unless the Respondent (Murray Reid) agrees with the terms of the sale”.
[6] DFO transferred the licence to the West Point at the written request (nomination) of Heather Reid dated July 18, 2003.
[7] For sake of completeness, I add that on July 8, 2003, the March 18, 2003 Order was amended by Mr. Justice Vickers stipulating the licence was part of the family assets including a term that the proceeds of the licence shall be divided equally between Murray Reid and Heather Reid. No other change to the March 18, 2003 Order was made by Justice Vickers.
[8] After the sale of the licence was completed and the proceeds presumably paid, Justice Romilly, on August 27, 2003, in the presence of counsel for Murray Reid, varied and set aside many of the terms of the March 18, 2003 Order except the ones which related to the licence. Justice Vickers’ order was also set aside “except with respect to the provision that the proceeds of the sale of the licence be divided equally.
[9] The record indicates it was only on July 19, 2005 that Murray Reid wrote to the Resource Manager Licensing at DFO’s Pacific Region (the Resource Manager) stating his licence was “transferred to another party by DFO … contrary to a court order”. He requested an investigation “into this error by DFO staff”.
[10] In this letter, Mr. Reid mentioned, when he received by mail in August 2003 the DFO “confirmation of Nominee acceptance” for the licence, his partner, Diva Vinciguerra, phoned the DFO officer involved who after that conversation realized “he had made an error” because he had acted on the advice of a boat sales representative that Heather Reid had the authority to sign the nomination and “he had not read the court order, of which he was given a copy.” See also the statement of the DFO Officer (William Leung) dated July 15, 2005 who states that under the direction of the boat sales representative, he completed the application for nomination of the licence on that individual’s advice that Heather Reid had the authority to sign.
[11] In his July 19, 2005 letter to the Resource Manager, Mr. Reid explained the delay in bringing the matter forward: messy and costly divorce proceedings, stress, difficulties in communication, hope that he could attend the matter once the divorce issues were resolved but the divorce issues “dragged on”. Mr. Reid concluded by saying he hoped that “this process of investigation will lead to the restoration of the ZN licence to its rightful owner”.
[12] On September 7, 2005 the Resource Manager at DFO answered Murray Reid’s July 19, 2005 letter. Essentially, she reviewed the terms of the three court orders discussed above which required the sale of the licence and concluded Heather Reid had the proper authority to nominate West Coast as she had the “exclusive conduct of the sale”.
[13] The Resource Manager also referred to Justice Romilly’s order of August 27, 2003 whereby he confirmed that the licence eligibility be sold and the proceeds to be evenly divided and stated “I understand that the terms of that Court order were complied with and that matters relating to the rockfish licence eligibility as between yourself and Heather Reid were satisfactorily resolved”.
[14] July 17, 2006 was the next development. Mr. Reid’s partner wrote to the Resource Manager to advise that the Applicant intends appealing “the improvident transfer of nomination” to the DFO Appeal Board.
[15] Mr. Reid’s partner stated “[a]s per your instructions, Mr. Reid understands that he is required to outline the basis of his appeal as follows …” Ms. Vinciguerra then outlined the basis for Mr. Reid’s appeal: (1) breach of DFO policy which calls for a 10-day period for the processing of transfer of nomination applications (the allegation is that Mr. Leung transferred the licence within a day of receipt); (2) it is highly “irresponsible and negligent for a DFO licensing officer to operate under the advice of a broker and not make any effort to validate that advice.”
[16] Ms. Vinciguerra concluded that the transfer was illegal because DFO procedure was contravened and neither the Court nor Murray Reid approved the transfer of the nomination. She closed the letter by stating:
Mr. Reid would be grateful if you could copy this correspondence to the Appeal Board as I understand you would do in our telephone conversation of today’s date.
[Emphasis mine]
[17] The Resource Manager replied on August 24, 2006. She stated she was unable to forward “your matter to the Licence Appeal Board for its consideration.” She gave one reason: “your situation does not fit with the terms of reference of the Pacific Region Licence Review Board” which confine it to “making recommendations to licensing decisions that were rejected by DFO.” In her view this was a case where the licence eligibility was accepted by DFO.
[18] On September 25, 2006 Mr. Reid’s partner wrote back to the Resource Manager. She reviewed the previous correspondence and referred to some telephone conversations. She stated the Resource Manager had indicated in a July 2006 telephone conversation her September 2005 letter was not a decision but Mr. Reid’s licence was not returned to him and that in her letter of August 24, 2006 the matter would not be submitted to the Appeal Board because nothing was denied.
[19] She concluded if there was no decision and nothing denied she was once again bringing to the Resource Manager the original request. She then formally demanded “the return of the licence to Mr. Reid which had wrongfully been transferred or your reasons for rejecting this request.”
[20] On October 24, 2006 the Resource Manager advised Mr. Reid DFO would not be returning the licence to him for the reasons outlined in her correspondence to him of September 7, 2005 and repeated the reasons why the Licence Appeal Board would not be seized of the matter.
Analysis
[21] An application for judicial review should not be struck unless the Court comes to the conclusion the application “is so clearly improper as to be bereft of any possibility of success”.
[22] I take into consideration the fact the Applicant was self-represented when he filed his application for judicial review. He is now represented by counsel.
[23] Counsel for the Applicant made a valiant effort to recalibrate that part of his relief which seeks a mandamus “requiring DFO to provide a decision to the Applicant on his request for the return of the licence …ZN/04”.
[24] His counsel in a letter to counsel for the Respondent stated that Mr. Reid “was not challenging at this stage, DFO’s decision to transfer the subject licence without his instructions and contrary to Court order. That is for the Licence Appeal Board should it decide to hear his appeal. At this stage, Mr. Reid is challenging the DFO’s decision refusing to forward his appeal to the Licence Appeal Board.”
[25] In my view the wording of the mandamus request in the Applicant’s judicial review application, however generously those words are interpreted acknowledging they were written by lay litigants, cannot be reasonably understood to request a review by the Licence Appeal Board.
[26] The wording of the mandamus request is derived directly from the Applicant’s partner’s letter of September 25, 2006 which specifically asked for the return of the licence.
[27] On October 24, 2006, the Resource Manager advised Mr. Reid the Department would not be returning his licence to him for the reasons stated in her September 2005 letter, namely that it had been properly transferred.
[28] The responses by the Resource Manager of September 2005 and October 2006 make moot the request for mandamus sought in the Applicant’s judicial review application.
[29] I have two problems with the declaratory relief sought. First, it is considerably out of time since the licence was transferred in July 2003 and no application for extension of time was sought despite the Applicant knowing about it. Second, the Applicant, in his affidavit, does not tell the Court what happened to the proceeds of sale, when he received those proceeds and what representations were made by his lawyer before Justice Romilly on August 27, 2003. Indeed it may be that the British Columbia Supreme Court is the appropriate body from whom to seek the declaration. I need not decide the point because it is sufficient for the purposes of this ruling to hold the proceeding cannot continue because a condition precedence to jurisdiction has not been established.
[30] This judicial review application should be struck because it was improperly launched and as it now stands cannot succeed.
[31] I would, however, grant leave to the Applicant to re-file a fresh application which accurately reflects the relief sought by that Applicant. It may well be that the Applicant had a legitimate expectation DFO would seize the Licence Appeal Board with his appeal as the evidence would support a promise to do so (see paragraph 16 of these Reasons).
[32] If the Applicant re-files, he should rethink whether the declaratory relief should remain in light of this Court’s questioning and his counsel’s response. In any event, an extension of time would be required and a full explanation given relating to the circumstances of the sale of his licence ZN/04, the receipt of funds and court representations to Justice Romilly.
JUDGMENT
This application for judicial review is struck with costs and with leave to file a fresh application within thirty (30) days of this Judgment.
"François Lemieux"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1888-06
STYLE OF CAUSE: Murray Owen Reid v. HMQ
PLACE OF HEARING: Vancouver, British Columbia
REASONS FOR JUDGMENT AND JUDGMENT Lemieux, J.
DATED: February 19, 2007
APPEARANCES:
Christopher Watson FOR THE APPLICANT
Mélanie Chartier FOR THE RESPONDENT
SOLICITORS OF RECORD:
|
MacKenzie Fujisawa LLP Barristers & Solicitors Vancouver, British Columbia
John H. Sims, Q.C. Deputy Attorney General of Canada Vancouver, British Columbia
|
FOR THE APPLICANT
|