Kirby Elson v. Attorney General of Canada

(Federal) (Civil) (By Leave)


Administrative law — Judicial Review — Permits and licences — Fisheries — Constitutional law — Division of powers — Discretionary decision made by Minister of Fisheries and Oceans about whether to grant applicant fishing licence — Decision taken in accordance with policy statement making fish harvesters who enter into controlling agreements with third parties ineligible for fishing licences — Does Parliament have the jurisdiction to regulate business arrangements ancillary to fishing? — Can an administrative decision-maker empowered under a federal statute reach a decision in reliance on a policy that, in substance, concerns subject matter exclusively reserved for the provinces? — What framework is a court to use to assess when an administrative decision-maker illegally fetters their discretion? — Fisheries Act, R.S.C. 1985, c. F 14, s. 7.


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The applicant, Mr. Elson, was denied reissuance of his fishing licences for the 2016 fishing season and beyond largely on the basis of a Department of Fisheries and Oceans (“DFO”) policy making licence holders who are parties to controlling agreements ineligible for licensing. Controlling agreements are agreements between the licence holder and a person, corporation or other entity that permits a person, other than the licence holder, to control or influence the licence holder’s decision to submit a request to DFO for issuance of a “replacement” licence to another fish harvester. Mr. Elson unsuccessfully applied for judicial review of the Minister of Fisheries and Oceans’ decision refusing to exempt him from the DFO policy before the Federal Court of Canada. The Federal Court of Appeal upheld the Federal Court of Canada’s findings in most respects. Both courts found that the DFO policy fell within Parliament’s broad powers over fisheries, and saw no basis to interfere with the Minister’s exercise of discretion in licensing.

Lower Court Rulings

May 5, 2017
Federal Court

T-138-16, 2017 FC 459
Application for judicial review dismissed
February 8, 2019
Federal Court of Appeal

A-177-17, 2019 FCA 27
Appeal dismissed