Question Period Note: Robinson Judicial Review

• Fisheries and Oceans Canada (DFO) is committed to preserving the independence of owner-operator fish harvesters on Canada’s East coast.
• If a licence holder is unable to fish due to medical reasons, the Department can authorize a substitute operator for a maximum of five years during their career.
• On September 30, 2020, the Federal Court ruled that the Medical Substitute Operator provision of the 96’ Commercial Fishing Licensing Policy for Eastern Canada and Quebec, including the five year maximum, is constitutional. Nonetheless, based on the particular facts of the case, the court has directed that DFO re-decide the matter.
• The Department is currently appealing the Court’s order to re-decide the matter and will wait until that matter is resolved prior to providing additional comments.

Martell
• On April 2, 2019, Lester Martell filed an application for Judicial Review (JR) against the Attorney General of Canada (AGC) in the Federal Court.
• The Applicant challenged a decision made by the Deputy Minister of Fisheries and Oceans Canada (DM) on March 6, 2019, pursuant to s. 23(2) of the Fishery (General) Regulations (FGR) and s. 11 of the Commercial Fisheries Licencing Policy for Eastern Canada, 1996 (the Policy), which denied the Applicant his request for use of a medical substitute operator authorization (MSO). The Applicant’s case was previously heard by the Atlantic Fisheries Licensing Appeal Board (AFLAB), which made a recommendation to the DM to deny his request for the MSO.
• The Applicant passed away in April 2020. He had been replaced by a MSO since 2009. Although Mr. Martell’s physical condition would not allow him to resume fishing activities as required under the owner-operator policy, he wished to retain the licence as a mean to generate income akin to a retirement benefit.
• The Applicant’s Estate attempted to continue with the JR proceedings.
• The Court dismissed the JR Application because it found that Mr. Martell’s Estate did not have legal standing to continue the proceedings.
Robinson
• On April 2, 2019, Dana Robinson filed an application for JR against the AGC in Federal Court. The Applicant is challenging a decision made by the DM, pursuant to s. 23(2) of the FGR and s. 11 of the Policy, denying the Applicant his request for use of a MSO.
• After obtaining the licence in 2007, the Applicant has been replaced by a MSO since 2009, which extends beyond the five-year limit established by departmental policy. The Applicant’s case was heard by the AFLAB, which made a recommendation to the DM to deny his request for MSO. The DM accepted the recommendation.
On September 10, 2020, the Court granted Mr. Robinson’s JR Application, quashed the decision, and returned the matter to the Department for reconsideration in light of the Court’s guidance. The Court did however refuse to invalidate the MSO provisions of the 1996 Policy.
• In the Court’s view, Mr. Robinson’s equality rights guaranteed by section 15 of the Charter were engaged, and the decision failed to proportionally balance the relevant government policy objectives of the 1996 Policy against the severity of the interference on Mr. Robinson’s protected Charter rights. The Court provided guidance on proportionate balancing to inform how the Department may reconsider this matter.

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