Date: 20150506
Docket: T-789-13
Citation: 2015 FC 575

Ottawa, Ontario, May 6, 2015
PRESENT:

The Honourable Mr. Justice Rennie

BETWEEN:
ALEXANDRA MORTON
Applicant
and

MINISTER OF FISHERIES AND OCEANS and
MARINE HARVEST CANADA INC
Respondents

JUDGMENT AND REASONS

 TABLE OF CONTENTS
PARA.

I.

Overview

1

II.

The regulatory scheme governing transfers

10

The Fisheries (General) Regulations

10

A.

B. The licence and appendix

21

III.

Standard of review

26

IV.

Preliminary observations

33

A. Piscine reovirus (PRV) and heart and skeletal muscle inflammation (HSMI)

33

B. The record

36

C. The precautionary principle

40

V.

Whether the licence conditions comply with section 56 of the FGRs

49

A. Analytical framework

49

B. Section 56 of the FGRs

54

C. Licence condition 3.1(b)(i)

61

D. Licence condition 3.1(b)(ii)

62

E. Licence condition 3.1(b)(iii)

68

F. Licence condition 3.1(b)(iv)

70

VI.

Whether the delegation at issue was valid

74

A. Whether delegation occurred

74

B. Whether delegation is permissible under the FGRs

79

C. The Minister did not properly delegate to Marine Harvest

83

VII.

The precautionary principle and licence conditions 3.1(b)(ii) and (iv)

96

VIII. Conclusion and remedy

100

IX. Costs

106

 I.

Overview

[1]

Under the authority of a license issued by the Minister of Fisheries and Oceans, Marine

Harvest Canada Inc. operates a fish farm at Shelter Bay, British Columbia. In March, 2013,
Marine Harvest transferred salmon smolts (that is, salmon which have undergone a physical
change called “smolting” enabling them to live in salt water) from its Dalrymple hatchery (the
hatchery) to the Shelter Bay fish farm (the fish farm). The smolts were subsequently sampled at
the fish farm, and in June 2013 tested positive for piscine reovirus (PRV).

[2]

Alexandra Morton (the applicant) is a biologist. She lives and works in the Broughton

Archipelago, the area with the greatest density of fish farms on the British Columbia coast. Ms.
Morton has researched aquatics since the 1990s and has longstanding concerns with respect to
the effects of aquaculture on the health of the wild salmon population. She brought this
proceeding in the public interest and her standing is not contested.

[3]

Ms. Morton was troubled by the transfer of smolts that occurred in March 2013. In her

view, the positive PRV test at their destination (the fish farm) demonstrated that the smolts had
PRV at their origin (the hatchery), and therefore that Marine Harvest had transferred diseased
fish contrary to the Fishery (General) Regulations, SOR/93-53 (FGRs). Ms. Morton contacted
the Department of Fisheries and Oceans (DFO) to inquire as to the regulatory scheme governing
such a transfer. In particular, Ms. Morton inquired about whether every transfer from a private
hatchery to a fish farm required a transfer licence and, if so, whether such a licence was issued
for Marine Harvest’s transfer of the smolts which tested positive for PRV.

 Page: 2
[4]

In response to Ms. Morton’s inquiry, Ms. Stacee Martin, DFO Co-Chair of the BC

Introductions and Transfers Committee, advised that under DFO policies, the Pacific region was
divided into nine Salmonid Transfer Zones, and that the regulatory scheme governing a specific
transfer depended on whether or not the transfer was within a single Salmonid Transfer Zone or
transited multiple Salmonid Transfer Zones. More specifically, Ms. Martin explained that
transfers between Salmonid Transfer Zones require a transfer licence under the FGRs, whereas
transfers within a single Salmonid Transfer Zone were regulated by the Pacific Aquaculture
Regulations, SOR/2010-270 (Aquaculture Regulations). With respect to the transfer from the
hatchery to the fish farm by Marine Harvest, Ms. Martin explained that this transfer was
regulated by the Aquaculture Regulations because both the fish farm and the hatchery were
situated within a single Salmonid Transfer Zone.

[5]

Ms. Morton was concerned that the Salmonid Transfer Zone policy enabled the transfer

of fish to occur under the regulatory authority of the Aquaculture Regulations, which provided,
in her view, fewer safeguards against the transfer of fish than the FGRs. Ms. Morton therefore
brought this application for judicial review. The application was framed, inter alia, on the
ground that the condition in the licence granted to Marine Harvest authorizing the transfer of
smolts from the hatchery to the farm was ultra vires the Aquaculture Regulations.

[6]

As we will see, subsequent to the receipt of the applicant’s memorandum of fact and law,

the Minister resiled from the position that the license authorizing the transfer was governed by
the Aquaculture Regulations. In his memorandum and at the hearing of this application, the
Minister took the position that the authority to authorize the transfer derived from section 56 of

 Page: 3
the FGRs. In consequence, the specific argument that the licence was ultra vires the Aquaculture
Regulations became moot. Other grounds of challenge to the licence remained, however.

[7]

The licence permits the transfer of fish by Marine Harvest subject to the satisfaction of

certain conditions. The conditions governing the transfer of smolts from the hatchery to the fishfarms (essentially net-pens in the ocean) are set out in condition 3.1 of the licence. The issue is
whether licence condition 3.1 meets or is consistent with the regulatory pre-conditions and
requirements governing transfers established by section 56 of the FGRs.

[8]

Subsection 22(1) of the FGRs stipulates that a licence condition cannot conflict with the

FGRs. The applicant contends that the licence conditions conflict with the regulatory
requirements that transferred fish “do not have any disease or disease agent that may be harmful
to the protection and conservation of fish” (FGRs, section 56(b)). The applicant also says that the
licence conflicts or is inconsistent with the regulatory requirements of section 56(c) that the
release or transfer of fish “will not have an adverse effect on the stock size of fish or the genetic
characteristics of fish or fish stocks.” Further, Ms. Morton contends the licence condition allows
the licensee to make transfer decisions which by regulation are reserved to the Minister, and thus
are an impermissible delegation of the Minister’s legislative responsibilities.

[9]

For the reasons that follow, the application for judicial review is granted. I conclude that

licence conditions 3.1(b)(ii) and 3.1(b)(iv) are inconsistent with the regulatory preconditions
established by section 56 of the FGRs governing the transfer of farmed fish to the marine
environment.

 Page: 4
II.

The regulatory scheme governing transfers

A.

The Fisheries (General) Regulations

[10]

The Minister’s power to issue licences is found in section 7 of the Fisheries Act, RSC

1985, c F-14 (Fisheries Act). The section accords the Minister an “absolute discretion” to either
“issue” or “authorize to be issued” licences for fisheries or fishing:
7.
(1)
Subject
to
subsection
(2),
the
Minister may, in his
absolute
discretion,
wherever the exclusive
right of fishing does not
already exist by law,
issue or authorize to be
issued leases and licences
for fisheries or fishing,
wherever situated or
carried on.

[11]

7. (1) En l'absence
d'exclusivité du droit de
pêche conférée par la loi,
le ministre peut, à
discrétion, octroyer des
baux et permis de pêche
ainsi que des licences
d'exploitation
de
pêcheries -- ou en
permettre l'octroi --,
indépendamment du lieu
de l'exploitation ou de
l'activité de pêche.

Section 43 of the Fisheries Act reinforces the broad scope of the Minister’s regulatory

authority. This section allows the Governor in Council to make regulations for carrying out the
purposes and provisions of the Fisheries Act, including:
(a) for the proper
management and control
of the sea-coast and
inland fisheries;

(b)
respecting
conservation
protection of fish;
[…]

(a) concernant la gestion
et
la
surveillance
judicieuses des pêches
en eaux côtières et
internes;

the (b)
concernant
and conservation
et
protection
[…]

la
la

 Page: 5

(f) respecting the issue,
suspension
and
cancellation of licences
and leases;

(f)
concernant
la
délivrance, la suspension
et la révocation des
licences, permis et baux;

(g) respecting the terms (g)
concernant
les
and conditions under conditions attachées aux
which a licence and licences, permis et baux;
lease may be issued;

[12]

The FGRs establish an over-arching regulatory framework governing the management of

the fishery. They also establish subcategories of licences, each of which is related to various
aspects of the fishery. Thus, the key to understanding the scope of the Minister’s discretion
regarding a specific licence, such as the Shelter Bay licence, is to know which part of the FGRs
applies, based on the activity or species in question. As the name of the regulations suggests,
(Fishery (General) Regulations) the regulations apply generally, save where there is an
inconsistency with more specific, listed regulations.

[13]

Part VIII of the FGRs, the title of which is “Release of Live Fish into Fish Habitat and

Transfer of Live Fish to a Fish Rearing Facility” is specifically directed to the transfer of fish,
and, as noted earlier, is now conceded by the Minister to govern the transfer of smolts from the
Dalrymple hatchery to the Shelter Bay fish farm. Section 54, found in Part VIII, stipulates that a
licence is required to transfer farmed fish:

 Page: 6

54. In this Part, “licence”
means a licence to
release live fish into fish
habitat or to transfer live
fish to a fish rearing
facility.

[14]

54. Dans la présente
partie, « permis »
s’entend
du
permis
autorisant la libération
de poissons vivants dans
leur habitat ou le
transfert de poissons
vivants
dans
des
installations d’élevage.

Section 56 establishes specific constraints on the Minister’s discretion in respect of

transfer licences. The Minister may only issue a licence if certain pre-conditions are met:
56. The Minister may 56. Le ministre peut
issue a licence if
délivrer un permis dans
le cas où :
(a) the release or transfer
of the fish would be in
keeping with the proper
management and control
of fisheries;

(a) la libération ou le
transfert des poissons est
en accord avec la gestion
et
la
surveillance
judicieuses des pêches;

(b) the fish do not have
any disease or disease
agent that may be
harmful to the protection
and conservation of fish;
and

(b) les poissons sont
exempts de maladies et
d’agents pathogènes qui
pourraient nuire à la
protection et à la
conservation
des
espèces;

(c) the release or transfer
of the fish will not have
an adverse effect on the
stock size of fish or the
genetic characteristics of
fish or fish stocks.

(c) la libération ou le
transfert ne risque pas
d’avoir un effet néfaste
sur la taille du stock de
poisson ou sur les
caractéristiques
génétiques du poisson ou
des stocks de poisson.

 Page: 7
[15]

The interface between this regulatory requirement and the conditions in the licence

granted to Marine Harvest are at the heart of this application. Broadly speaking, Ms. Morton
contends that the licence conditions are inconsistent with the regulatory pre-conditions
established by section 56 of the FGRs, and therefore run afoul of the requirement of subsection
22(1) of the FGRs that licence conditions cannot be inconsistent. Further, as noted earlier, she
submits that the licence conditions constitute an unlawful delegation of ministerial discretion and
ministerial responsibility for protection and conservation of the fishery to Marine Harvest. The
respondents say that the licence conditions conform to the requirements of section 56.

[16]

I conclude on three contextual points.

[17]

The FGRs and the Aquaculture Regulations do not operate in separate silos – instead, the

regulations work together to ensure the proper management of aquaculture. In the result, the
licence granted to Marine Harvest is effectively an aggregate licence, addressing subject matter
both within the ambit of the FGRs and the Aquaculture Regulations. That is, the licence granted
to Marine Harvest provides both a transfer licence under the FGRs and an aquaculture licence
under the Aquaculture Regulations.

[18]

In 2009 as a result of Morton v British Columbia (Agriculture and Lands), 2009 BCSC

136, aff’d 2009 BCCA 481, the regulation of finfish aquaculture on Canada’s Pacific coast was
confirmed to be within the exclusive jurisdiction of Parliament. Since that time, finfish
aquaculture on Canada’s Pacific coast has been regulated under the Aquaculture Regulations and

 Page: 8
the FGRs. As the decision under review observes “the licences [now federal] were largely based
on the manner in which the industry was regulated under the previous provincial regime…”

[19]

I note, parenthetically, that there is a context to this issue. In 2012, the Honourable

Justice Cohen submitted his final report from the Commission of Inquiry into the Decline of
Sockeye Salmon in the Fraser River. The Commission of Inquiry began its work in 2009, the
year in which the Fraser River Sockeye fishery had experienced its lowest return since the 1940s.
The Government of Canada sought to identify the reasons for the decline and to determine
whether changes were needed to fisheries management polices (Canada, Commission of Inquiry
into the Decline of Sockeye Salmon in the Fraser River, The Uncertain Future of Fraser River
Sockeye (2012, vol 3 at 2). Significantly, Justice Cohen found that there is some risk posed to
wild sockeye salmon from diseases on fish farms and ensuring the health of wild stocks should
be “DFO’s number one priority in conducting fish health work” (Cohen Commission vol 2 at 113
and vol 1 at 474).

[20]

With the historical and legislative landscape set, I turn to the licence itself.

B.

The licence and appendix

[21]

As noted earlier, in correspondence with the applicant, DFO categorized the licence as

being granted under the Aquaculture Regulations. This is unsurprising, given that the licence
itself is titled “Finfish Aquaculture licence under the Pacific Aquaculture Regulations”. It is now
conceded that there is no authority to transfer fish in the Aquaculture Regulations. The
Aquaculture Regulations are silent regarding the transfer of diseased fish.

 Page: 9
[22]

Condition 3 of the licence begins with the title “Transfer of Fish”. Condition 3.1 states

“[t]he licence holder may transfer to this facility live Atlantic or Pacific salmonids from a facility
possessing a valid aquaculture licence issued pursuant to section 3 of the Pacific Aquaculture
Regulations” provided the transfer conditions are satisfied. This is precisely the type of transfer
contemplated by Part VIII of the FGRs which defines a Part VIII licence as a licence “to transfer
live fish to a fish rearing facility”. Given the importance of transfer decisions as evidenced by the
overall scheme of the FGRs, it would be unreasonable to conclude that there was a hiatus in the
regulatory scheme, such that transfers from the hatchery to the fish farm were unregulated. I
conclude that condition 3.1 of the licence authorizing the transfer of fish is derived from Part
VIII of the FGRs and that the terms of that licence must comply with section 56 of those
regulations.

[23]

Condition 3.1 of the licence provides for the transfer of fish (the subject of a transfer

licence under the FGRs). The cultivation or capture of fish (the subject of an aquaculture licence
under the Aquaculture Regulations) is addressed in other parts of the licence. Condition 3.1
reads:
3. Transfer of Fish
3.1 The licence holder may transfer to this facility live Atlantic or
Pacific salmonids from a facility possessing a valid aquaculture
licence issued pursuant to section 3 of the Pacific Aquaculture
Regulations between the Fish Health zones described in Appendix
VI, provided transfers occur within the same salmonid transfer
zone as outlined in Appendix II and provided:
(a) the species of live salmonid fish are the same as
those listed on the face of this licence;
(b) the licence holder has obtained written and
signed confirmation, executed by the source

 Page: 10
facility’s veterinarian or fish health staff, that, in
their professional judgment:
(i) mortalities, excluding eggs, in any stock
reared at the source facility have not
exceeded 1% per day due to any infectious
diseases, for any four consecutive day
period during the rearing period;
(ii) the stock to be moved from the source
facility shows no signs of clinical disease
requiring treatment; and
(iii) no stock at the source facility is known
to have had any diseases listed in Appendix
IV; or
(iv) where conditions 3.1(b)(i) and/or
3.1(b)(iii) cannot be met transfer may still
occur if the facility veterinarian has
conducted a risk assessment of facility fish
health records, review of diagnostic reports,
evaluation of stock compartmentalization,
and related biosecurity measures and
deemed the transfer to be low risk.

[24]

Both conditions 3.1(b)(iii) and 3.1(b)(iv) reference Appendix IV. Appendix IV is part of

the licence and sets out what DFO has identified as eight “diseases of regional, national or
international concern”. The list includes seven specific fish diseases and one residual category
encompassing “any other filterable agent either causing cytopathic effects in tissue culture or is
associated with identifiable clinical disease in fish”. Importantly, the preamble to Appendix IV
states that the listed diseases “can severely impact fisheries and affect regional and national
trade so they warrant urgent notification and immediate attention.”

[25]

Condition 3.1 applies to fish transfers that occur between fish health zones and within a

salmonid transfer zone. These zones are established by DFO policy, and cover different

 Page: 11
geographical areas. However, section 56 of the FGRs does not distinguish between salmonid
transfer zones or fish health zones. The scope of the regulatory requirements, being law, cannot
be limited by policy. As such, section 56 applies to all fish transfer decisions, regardless of zone,
and therefore the licence condition 3.1 governing transfer must be consistent with section 56.

III.

Standard of review

[26]

The applicant characterizes the issues in this proceeding as questions of jurisdiction, and

argues that as such the licence condition should be reviewed on a correctness standard. The
Minister and Marine Harvest disagree. They submit that the Court should adopt a highly
deferential approach to the Minister’s determination.

[27]

In determining the standard of review, the Minister places considerable emphasis on the

fact that the underlying science involved in licencing the aquaculture industry is complex.
Relying on McLean v British Columbia (Securities Commission), 2013 SCC 76 the Minister says
that his decision is presumptively reasonable, and that the onus is on the applicant to demonstrate
otherwise. The Minister relied on the presumption, and apart from the decision and licence,
produced no record.

[28]

Marine Harvest, for its part, predicates its position on the Minister’s broad discretion to

issue fishing licences and to specify licence conditions pursuant to section 7 of the Fisheries Act.
This provision empowers the Minister to issue or authorize to be issued licences for fisheries or
fishing in “[his] absolute discretion.” Section 7, according to Marine Harvest, is a complete
answer to any inquiry, of any nature or degree, into the licence conditions. Marine Harvest’s

 Page: 12
position, distilled to its essence, is that the Minister can do what the Minister wants.
Alternatively, Marine Harvest contends, based on the expert evidence, that the licence conditions
are reasonable.

[29]

There is no question that the Minister has broad authority pursuant to section 7 of the

Fisheries Act. As noted in Malcolm v Canada (Minister of Fisheries and Oceans), 2013 FC 363,
aff’d 2014 FCA 130, leave to appeal to SCC refused, [2014] SCCA No 350, the Minister has
“the widest discretion” to make fisheries policy decisions. This discretion may be exercised, for
example, when granting or refusing to grant licences pursuant to the FGRs or the Aquaculture
Regulations.

[30]

Nevertheless, ministerial discretion is framed and controlled by the FGRs, section 22 of

which prohibits licence conditions that are inconsistent with the FGRs. That is, ministerial
discretion exists except where it has been prescribed by the law. As the Court of Appeal
observed in Matthews v Canada (Attorney General), [1999] FCJ No 830 (CA) “however largely
expressed”, the Minister’s discretion in respect of licence conditions is limited and governed by
the objectives of the Fisheries Act and its provisions. The Supreme Court made the same point,
in precisely relevant terms, in Comeau's Sea Foods Ltd. v Canada (Minister of Fisheries and
Oceans), [1997] 1 SCR 12, where, at paragraph 36, Major J speaking for the Court said:
It is my opinion that the Minister’s discretion under s. 7 to
authorize the issuance of licences, like the Minister’s discretion to
issue licences, is restricted only by the requirement of natural
justice, no regulations currently being applicable. [Emphasis
added]

 Page: 13
[31]

In Tervita Corp. v Canada (Commissioner of Competition), 2015 SCC 3, the Supreme

Court discussed the indicia required to rebut the presumption of reasonableness, few of which
are present in this case. Based on the prevailing jurisprudence, the standard of review analysis
must start from the premise that reasonableness applies to the review of the Minister’s licencing
decisions: also see Alberta (Information and Privacy Commissioner) v Alberta Teachers’
Association, 2011 SCC 61; Agraira v Canada (Public Safety and Emergency Preparedness),
2013 SCC 36; Canadian National Railway Co. v Canada (Attorney General), 2014 SCC 40.

[32]

In my view, the question of whether the licence conditions are consistent with section 56

of the FGRs is to be assessed against a reasonableness standard. The Minister, through the
imposition of conditions, is seeking to implement or render operational, the obligations imposed
by sections 56(a), (b) and (c). A licence condition that is inconsistent or contrary to a regulatory
obligation would be ultra vires, but it would also be unreasonable. As I characterize the issue
before the Court, the question is whether the licence conditions are a reasonable articulation, or
expression, of the mandatory requirements of section 56.

IV.

Preliminary observations

A.

Piscine reovirus (PRV) and heart and skeletal muscle inflammation (HSMI)

[33]

HSMI is an infectious disease found in farmed salmon. It causes abnormal swimming

behaviour and anorexia in fish. HSMI does not present observable symptoms until 5-9 months
following the transfer of smolts to the ocean. There is no question that it is a threat to aquaculture
operations. Mortality can range from 0% to 20% of the population, and in one reported case in
Norway, the loss of an entire stock.

 Page: 14
[34]

First identified in Norway in 1999, HSMI is now prevalent throughout Norwegian

salmon farming operations. HSMI was discovered in Scotland in 2005, and more recently in
Chile and Canada.

[35]

The causal relationship between PRV and HSMI has not been conclusively established.

However, the weight of the expert evidence before this Court supports the view that PRV is the
viral precursor to HSMI. Lengthy and extensive research efforts in Norway designed to identify
viruses, other than PRV, which may be responsible for HSMI, have not identified any other
agent. Although HSMI has not been found in wild salmon, PRV is now found in 14% of the wild
salmon population of the Norwegian coast.

B.

The record

[36]

Judicial review is focused on the decision itself. It is based on the material before the

decision maker. As the Court of Appeal noted in Association of Universities and Colleges of
Canada v. Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22, as a
general rule, the record before the court on judicial review is restricted to the evidentiary record
before the decision maker.

[37]

There are exceptions to this rule, one of which is to provide general background or

context which might assist the court in understanding the issues. Much of the evidence tendered
in this proceeding, and the use to which it is put, goes beyond the exception. Marine Harvest
vigorously contests the causal relationship between HSMI and PRV, and seeks to establish there
is no such causality. This misconceives the role of the Court on judicial review. The Minister

 Page: 15
tendered no evidence, other than the page and one-half decision required by Rule 317 of the
Federal Courts Rules. The Minister sheltered behind Marine Harvest’s evidence. The Minister
nonetheless, made unequivocal statements of science:
HSMI has not been found in the Atlantic other than in Norway and
Scotland. HSMI has never been diagnosed in any fish in the Pacific
Ocean, including Pacific Salmon or farmed Atlantic Salmon.

[38]

Given that Norway and Scotland are the two largest centers of farmed Atlantic salmon,

the statement is more supportive of the applicant’s view of the science. But that is not the point
at this stage. The point is that assertions made in order to bolster the reasonableness of the
Minister’s exercise of discretion cannot be made without evidence.

[39]

The Minister states that the onus is on the applicant to disprove that what the Minister

says about science and the regulations is presumptively deemed reasonable. The Minister pleads
that he was “guided by expert advisers” and that the licence conditions were based on “scientific
criteria”. But it is important to note that the Minister has said nothing about the science which
might inform the reasonableness of the conditions. If the Minister wishes to establish that the
discretion exercised took into account various factors and that there were relevant limitations in
the science, the Minister, or ministerial officials, can say so. What the Minister cannot do is
make unsupported statements of science. Nor can the Minister point to expert affidavits, drafted
many months after the decision and infer that those considerations must necessarily have been
taken into account by the Minister in the exercise of his discretion.

 Page: 16
C.

The precautionary principle

[40]

The Minister contends that licence conditions 3.1(b)(i), (ii) and (iii) are reasonable and

“take into account the reality of the current limitations of scientific knowledge and reflects a
precautionary approach to fish transfers.” That is, the conditions are intended, in the face of
scientific uncertainty, to prevent transfers that may be harmful to the protection and conservation
of fish. The Minister stresses that the licence conditions are so broad and in line with the
precautionary principle that they result in healthy fish being held back from transfers. Notably,
the Minister did not argue that licence condition (iv) was consistent with the precautionary
principle; Memoranda of the Minister at paras 4, 58, 100-103.

[41]

In light of this argument it is useful to consider the exact meaning of the precautionary

principle and its application in a legal context. In 114957 Canada Ltée (Spraytech, Société
d'arrosage) v Hudson (Town), 2001 SCC 40, Justice L’Heureux-Dubé adopted the precautionary
principle and applied it as an element of statutory interpretation, noting at para 31:
The interpretation of By-law 270 contained in these reasons
respects international law's "precautionary principle", which is
defined as follows at para. 7 of the Bergen Ministerial Declaration
on Sustainable Development (1990):
In order to achieve sustainable development,
policies must be based on the precautionary
principle. Environmental measures must anticipate,
prevent and attack the causes of environmental
degradation. Where there are threats of serious or
irreversible damage, lack of full scientific certainty
should not be used as a reason for postponing
measures to prevent environmental degradation.
Canada "advocated inclusion of the precautionary principle"
during the Bergen Conference negotiations (D. VanderZwaag,
CEPA Issue Elaboration Paper No. 18, CEPA and the

 Page: 17
Precautionary Principle/Approach (1995), at p. 8). The principle is
codified in several items of domestic legislation: see for example
the Oceans Act, S.C. 1996, c. 31, Preamble (para. 6); Canadian
Environmental Protection Act, 1999, S.C. 1999, c. 33, s. 2(1)(a);
Endangered Species Act, S.N.S. 1998, c. 11, ss. 2(1)(h) and 11(1).

[42]

More recently, the Supreme Court of Canada considered the interface between the

precautionary principle and an environmental regulatory scheme in Castonguay Blasting Ltd. v
Ontario (Environment), 2013 SCC 52, at para 20. The Court referred to the principle as an
emerging principle of international law, which informed the scope and application of the
legislative provision in question.

[43]

The precautionary principal recognizes, that as a matter of sound public policy the lack of

complete scientific certainty should not be used as a basis for avoiding or postponing measures
to protect the environment, as there are inherent limits in being able to predict environmental
harm. Moving from the realm public policy to the law, the precautionary principle is at a
minimum, an established aspect of statutory interpretation, and arguably, has crystallized into a
norm of customary international law and substantive domestic law: Spraytech at paras 30-31.
However, except as discussed in Part VII, the legal contours of the principle need not be
determined here, as this decision does not rest or depend on the application of the principle.

[44]

Invoking the precautionary principle, the respondents submit that the licence conditions

are intended, in the face of scientific uncertainty, to prevent transfers that may be harmful to the
protection and conservation of fish. However, they also contend that that same scientific
uncertainty with respect to whether PRV is the agent of HSMI justifies the transfer of PRV
infected smolts. A lack of full scientific certainty is the very situation addressed by the

 Page: 18
precautionary principle. The respondents’ arguments with respect to the precautionary principle
are inconsistent, contradictory and, in any event, fail in light of the evidence.

[45]

The evidence before the Court demonstrates that there is a body of credible scientific

study, conducted by respected scientists in different countries, establishing a causal relationship
between PRV and HSMI. The evidence also indicates that there are scientists who question the
link – but concede that no other disease agent has been identified as the culprit for HSMI. As
noted previously, HSMI was first identified in Norway in 1999 and is now prevalent throughout
Norwegian salmon farming operations. It has subsequently been found in Iceland, and more
recently Chile. Extensive research in Norway designed to identify viruses, other than PRV,
which may be responsible for HSMI, have not identified any other agent. Thus, although there is
a healthy debate between respected scientists on the issue, the evidence, suggests that the disease
agent (PRV) may be harmful to the protection and conservation of fish, and therefore a “lack of
full scientific certainty should not be used a reason for postponing measures to prevent
environmental degradation”: Spraytech at para 31.

[46]

In sum, it is not, on the face of the evidence, open to the respondents to assert that the

licence conditions permitting a transfer of PRV infected smolts reflect the precautionary
principle. The Minister is not, based on the evidence, erring on the side of caution.

[47]

In making these observations about the precautionary principle, the Court is not

arbitrating on the PRV/HSMI debate. Rather, the argument having been raised, and the assertion
made that the conditions reflect a precautionary approach to aquaculture, the issue had to be

 Page: 19
considered. To conclude, based on the evidence before me, the Minister cannot, in support of the
reasonableness of the licence conditions and their nexus to the requirements of section 56,
contend that they reflect a precautionary approach. I will return briefly to the precautionary
principle as an aspect of the interpretation of subsection 56(b) of the FGRs later in these reasons.

[48]

With these three preliminary observations made (the record, the scientific context and the

precautionary principle) I turn to the question whether the licence conditions meet the threshold
regulatory requirements. Before doing so, I reiterate that the standard of review is
reasonableness, or, put otherwise, whether the conditions are a reasonable articulation of the
regulatory preconditions. The answer to this question turns, not on whether PRV is, as a matter
of scientific certainty, the viral agent of HSMI, nor whether fish that are PRV positive should be
transferred; rather, the answer turns on the application of orthodox principles governing the
interpretation of subordinate legislation.

V.

Whether the licence conditions comply with section 56 of the FGRs

A.

Analytical framework

[49]

It is self-evident that a regulation that is inconsistent with the enabling substantive

statutory provisions cannot carry out the purposes of the act (Denys C. Holland and John P.
McGowan, Delegated Legislation in Canada, (Agincourt, Ontario: The Carswell Co. Ltd., 1989)
at 182). Delegated legislation, such as the FGRs, has the same legal force as a statute and is
interpreted using the same rules and techniques (Ruth Sullivan, Statutory Interpretation, 2nd ed
(Toronto: Irwin Law, 2007) at 11). Here, the inconsistency asserted is not between the act and
the regulation, but the regulation and the licence. The same principles apply by analogy. Any

 Page: 20
condition of the licence that conflicts with the substantive regulatory provisions cannot carry out
the purposes of the regulatory scheme: Matthews.

[50]

The point is made, perhaps unnecessarily given the well-established principles noted

above, by subsection 22(1) of the FGRs, which directs that the Minister may not specify a
condition in a licence that is inconsistent with the Regulations.

[51]

The licence and its attached conditions cannot derogate from or be inconsistent with the

FGRs. To draw an analogy, as Professor Ruth Sullivan explains in Statutory Interpretation at
p 312, “the paramountcy of statutes over delegated legislation operates as a presumption” and in
cases of conflict, “the statute is presumed to prevail.” So too, the licence cannot grant that which
the FGRs exclude. This applies with particular force where, as here, the language of the
regulation requires certain pre-conditions be met before the Minister may issue a licence.

[52]

The question of whether the licence satisfies its governing regulatory provisions requires

analogy to the first principles of statutory interpretation. I rely on Driedger’s modern principle of
statutory interpretation that “the words of an Act are to be read in their entire context and in their
grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act,
and the intention of Parliament” (Elmer A. Driedger, Construction of Statutes, 2nd ed (Toronto:
Butterworths, 1983). In other words, a purposive, contextual and harmonious interpretation
should be applied to section 56 of the FGRs: Rizzo & Rizzo Shoes Ltd., Re [1998] 1 SCR 27 at
para 21.

 Page: 21
[53]

It is, however, imperative to remember that the standard of review is reasonableness, in

this case, infused with deference given that this aspect of the applicant’s argument asserts a
substantive inconsistency between what the regulations require of the Minister, and the
articulation of those requirements in the form of conditions on a licence.

B.

Section 56 of the FGRs

[54]

Section 56 under Part VIII of the FGRs provides for prerequisites to the issuance of a

licence to transfer fish. The section 56 prerequisites apply prior to and during the currency of a
licence. Importantly, the section 56 prerequisites do not govern the conduct of a licensee but
rather govern the conduct of the Minister in issuing a licence to transfer fish under section 56.
Section 56 states:
56. The Minister may issue 56. Le ministre peut
a licence if
délivrer un permis dans le
cas où :
(a) the release or transfer
of the fish would be in
keeping with the proper
management and control of
fisheries;

(a) la libération ou le
transfert des poissons est
en accord avec la gestion
et
la
surveillance
judicieuses des pêches;

(b) the fish do not have any
disease or disease agent
that may be harmful to the
protection
and
conservation of fish; and

(b) les poissons sont
exempts de maladies et
d’agents pathogènes qui
pourraient nuire à la
protection
et
à
la
conservation des espèces;

 Page: 22

(c) the release or transfer
of the fish will not have an
adverse effect on the stock
size of fish or the genetic
characteristics of fish or
fish stocks.

[55]

(c) la libération ou le
transfert ne risque pas
d’avoir un effet néfaste sur
la taille du stock de
poisson
ou
sur
les
caractéristiques génétiques
du poisson ou des stocks
de poisson.

In applying a statutory interpretation analysis, I look to the language of section 56(b).

First, the FGRs do not define “disease” or “disease agent”; however, the licence defines
“disease” as “an abnormality of form or function and can be caused by a suite of infectious, noninfectious and inherent factors.” Further, and although outside of the legislative scheme, the final
report of the Cohen Commission concluded that “a host fish is diseased if it is behaviourally or
physiologically comprised” and a “pathogen” as an “agent (such as a virus, bacteria, or sea
louse) that causes disease” (Cohen Commission vol 3 at 20).

[56]

The plain meaning of the language “any disease or disease agent” suggests that the phrase

is not limited to only those few diseases prescribed by policy as listed in Appendix IV. The
Minister’s legal duty under section 56 extends to any disease or disease agent that “may be
harmful to the protection and conservation of fish.” Interpreting section 56(b) in this manner is
consistent with a purposive and contextual approach, as it supports conservation of the resource,
the Minister’s primary obligation under the Fisheries Act: R v Marshall, [1999] 3 SCR 533 at
para 40. It is also consistent with the precautionary approach which the Minister says was taken
into account. I will address this issue further in Part VII of these reasons.

 Page: 23
[57]

Again, a purposive, contextual and plain meaning analysis of the language “that may be

harmful” suggests this phrase means any disease or disease agent that might be harmful to the
protection and conservation of fish. This interpretive approach is again consistent with the
precautionary principle, the essence of which is that where a risk of serious or irreversible harm
exists, a lack of scientific certainty should not be used as a reason for postponing or failing to
take reasonable and cost-effective conservation and management measures to address that risk
(Cohen Commission vol 3 at 20). I note, in this regard, that although HSMI was first identified in
1999, it was in Scotland in 2005 and subsequently in Chile, it would be an unreasonable
inference to draw from the evidence that it will not appear in farmed Atlantic salmon on the
Pacific Coast.

[58]

The precautionary principle has been applied in international agreements to which

Canada is a party (such as the Convention on Biological Diversity), domestic legislation (for
example the Oceans Act or the Species at Risk Act). The Supreme Court of Canada has also
relied on the precautionary principle in interpreting regulations directed to public health and the
environment: 114957 Canada Ltée (Spraytech, Société d’arrosage) v Hudson (Town), 2001 SCC
40 at paras 30-32; Castonguay Blasting Ltd. v Ontario (Environment), 2013 SCC 52 at para 20.

[59]

In the language of “… the protection and conservation of fish”, the word “protection”

does not stand for “management”; rather, the word means “preservation”: Canada (Minister of
Fisheries and Oceans) v David Suzuki Foundation, 2012 FCA at para 114. Finally, section 2 of
the Fisheries Act broadly defines “fish” to include inter alia parts of fish, and the eggs, sperm,

 Page: 24
spawn, larvae, spat and juvenile stages of fish. Importantly, “fish” pursuant to Part VIII of the
FGRs is not limited to wild fish, but includes non-native fish that are cultivated.

[60]

With that said, I turn to the question whether the licence prescribes lower standards for

when diseased fish may be transferred than required by section 56(b).

C.

Licence condition 3.1(b)(i)

[61]

Licence condition 3.1(b)(i) establishes clear, objective criteria governing transfers that

are demonstrably linked to the Minister’s regulatory obligations under section 56. Condition
3.1(b)(i) allows for transfers only where mortalities from infectious diseases do not exceed 1%
per day, for any four consecutive day period during the rearing period. This licence condition is a
reasonable articulation of the subsection 56(b) requirements.

D.

Licence condition 3.1(b)(ii)

[62]

Condition 3.1(b)(ii) provides that a licensee may transfer fish if the stock “shows no signs

of clinical disease requiring treatment.” Ms. Morton contends that, in two ways, condition
3.1(b)(ii) is narrower than section 56(b). First, condition 3.1(b)(ii) allows the licensee to transfer
fish from a diseased stock provided that disease does not “require treatment”. Ms. Morton
submits that whether treatment is needed for farmed salmon may have no nexus to the risk posed
to the “protection and conservation of fish”. Second, condition 3.1(b)(ii) allows the licensee to
transfer fish from a stock infected with a disease agent that has not yet presented as disease.

 Page: 25
[63]

Based on a purposive, contextual and plain meaning analysis of the language in both

provisions, I agree with the applicant that condition 3.1(b)(ii) maintains a lower standard than
that prescribed by section 56(b) of the FGRs. The condition contradicts the plain language of
section 56(b). Section 56(b) stipulates that no transfer may take place if they have “any disease
or disease agent” that may be harmful to the transfer of fish. The licence condition, in contrast,
allows transfers unless the fish show signs of clinical disease requiring treatment.

[64]

The PRV/HSMI relationship is a useful foil to demonstrate the discrepancy between the

regulatory requirement and the licence. Clinical signs of HSMI are not manifest until 5-9 months
following transfer of the smolts to the ocean. Section 56(b), on its face, anticipates testing for
latent disease agents. The licence relieves Marine Harvest from this obligation imposed by law.

[65]

Condition 3.1(b)(ii) requires that the stock to be moved from the source facility “shows

no signs of clinical disease”. Showing no sign of disease is certainly a lower threshold than the
regulatory scheme demands, that is, that the fish “do not have any disease or disease agent.”
That is, the condition as presently stated allows for a transfer where the fish have a disease, or
disease agent, but are not presenting or showing signs of such a disease. Condition 3.1(b)(ii) is
inconsistent with and contrary to the section 56(b) regulatory obligation. Section 22 of the FGRs
is engaged.

[66]

Second, it is clearly within the Minister’s discretion to establish licence conditions for

testing fish stock to ensure that the fish “do not have any disease or disease agent that may be
harmful to the protection and conservation of fish.” However, no criteria are provided to Marine

 Page: 26
Harvest within condition 3.1(b)(ii), as to what diseases may be harmful to the protection and
conservation of fish. Importantly, the focus of this regulatory requirement is on “fish” and not
the “stock”. The regulation is directed to the health of the resource generally, and not the health
of the farmed product or stock. According to condition 3.1(b)(ii), as presently drafted, it is
unclear as to whether and how Marine Harvest’s fish health staff must determine whether the
fish have any disease or disease agent using objective, prescribed scientific measures, or,
alternatively, whether all that is required is a quick glance in the tank to assess whether the fish
are showing signs of disease. There is no nexus or scientific linkage between the regulatory
requirement (directed to the protection of the resource) and the licence condition (directed to the
stock).

[67]

For this further reason, condition 3.1(b)(ii) maintains a lower standard than is required by

the regulatory scheme and is thus inconsistent with section 56(b) of the FGRs.

E.

Licence conditions 3.1(b)(iii)

[68]

Condition 3.1(b)(iii) provides that a licensee may transfer fish if “no stock at the source

facility is known to have had any diseases listed in Appendix IV.” As was previously noted,
Appendix IV is part of the licence and sets out eight “diseases of regional, national or
international concern” that according to the licence, “can severely impact fisheries and affect
regional and national trade so they warrant urgent notification and immediate attention.”

[69]

In my view, condition 3.1(b)(iii) is consistent with section 56(b). Condition 3.1(b)(iii)

precludes transfer where stock is known to have had any diseases listed in Appendix IV – that is,

 Page: 27
where fish are known to have had any diseases that can “severely impact fisheries.” This is a
reasonable articulation of the section 56(b) requirement that a fish transfer occur only where the
fish do not have any disease or disease agent that may be harmful to the protection and
conservation of fish.

F.

Licence condition 3.1(b)(iv)

[70]

Condition 3.1(b)(iv) allows the licensee to override conditions 3.1(b)(i) and 3.1(b)(iii) if

the facility veterinarian has conducted a risk assessment of facility fish health records, a review
of diagnostic reports, an evaluation of stock compartmentalization, and related biosecurity
measures and deems the transfer “low risk”.

[71]

This condition also allows the licensee to transfer fish from stock known to have one of

the diseases of regional, national or international concern that can “severely impact fisheries” in
Appendix IV. This licence condition undoubtedly conflicts with section 56(b) of the FGRs and
the regulatory duty imposed on the Minister to allow transfer only where the fish “do not have
any disease or disease agent that may be harmful to the protection and conservation of fish.”
Further, the licence condition allows transfer of diseased fish on the assessment of the facility
veterinarian that the transfer is of “low risk”. Effectively, the condition circumvents the
regulatory requirements under section 56 and licences Marine Harvest to transfer through less
rigorous conditions than required by law.

[72]

It seems almost too clear to state that the Minister cannot create any licence conditions

which would in fact sidestep or nullify the FGRs. However, that is the effect of the override

 Page: 28
provision in the licence. Licence condition 3.1(b)(iv) is inconsistent with section 56(b) of the
FGRs. It is also unreasonable as it is, on its face, internally inconsistent. A transfer cannot be of
low risk when it allows the transfer of fish with diseases which have the potential to “severely
impact” the fishery at an international level.

[73]

Licence condition 3.1(b)(iv) also fails for further reasons to which I now turn.

VI.

Whether the delegation at issue was valid

A.

Whether delegation occurred

[74]

I have concluded that both conditions 3.1(b)(ii) and 3.1(b)(iv) are unreasonable as they

are inconsistent with and contrary to section 56(b) of the FGRs. However, condition 3.1(b)(iv)
also fails on a second ground, that is, the Minister has not properly delegated to Marine Harvest.

[75]

The Applicant argues that the Minister is the decision-maker responsible for licensing

and transfer decisions under section 56 of the FGRs, and that this authority cannot be delegated
to the aquaculture industry. The licence, it is said, is inconsistent with section 56 because the
licensee, rather than the Minister, decides whether a transfer of fish is permissible. According to
the Applicant, ensuring that the decision-making authority under section 56 remains with the
Minister minimizes the risk that less onerous fish health standards are imposed by industry, and
ensures that the Minister’s accountability under both statute and regulation to conserve and
protect the fishery is not evaded.

 Page: 29
[76]

The Minister takes a different approach, and submits that it is common for licences to be

issued with conditions that a licensee is required to follow when engaging in the licensed activity
– without the direct supervision of the Minister. A section 56 licence, under which the licensee
decides whether or not to transfer is consistent with the mandatory conditions set down by the
Regulations. Finally, Marine Harvest argues that nothing in the Fisheries Act or either the FGRs
or Aquaculture Regulations states that the Minister cannot use and allow industry to make
section 56 decisions. There is no rule against administrative sub-delegation.

[77]

As a result of the divergent arguments made by the parties, the first question is

necessarily whether sub-delegation has occurred. In my view, it has. Section 43 of the Fisheries
Act authorizes the Governor in Council to make regulations respecting the management and
control of fisheries, the conservation of fish, and to issue licences. Section 56(b) of the FGRs
delegates to the Minister the ability to issue a licence “provided that the fish do not have any
disease or disease agents that may be harmful to the protection and conservation of fish.”

[78]

The Minister states that he has crafted licence conditions which fulfill the section 56(b)

requirements. However, it is the licensee, Marine Harvest, who in practice determines whether
those conditions have been met. That is, although the Minister issues the section 56 licence and
determines the licence conditions, the Minister has sub-delegated to the licensee the ultimate
determination as to whether a transfer is permissible.

 Page: 30
B.

Whether delegation is permissible under the FGRs

[79]

Sub-delegation is “the granting by a delegate to another…of some part of the authority

granted to the delegate by Parliament” (Robert W. Macaulay and James L.H. Sprague, Practice
and Procedure before Administrative Tribunals (loose-leaf) (Toronto: Carswell, 1988) (2012
updated) at 5-20). There is a general presumption against sub-delegation in administrative law,
referred to as the latin maxim delegatus non potest delegare: a delegate may not re-delegate
(John Willis, “Delegatus Non Potest Delegare” (1943) 21 Can Bar Rev 257).

[80]

The presumption against sub-delegation does not apply, however, when the action is

purely administrative or of such a character that no significant degree of discretion or
independent judgment is involved. It only applies to discretionary decisions, legislative or
adjudicative decisions: see Forget v Quebec (Attorney General), [1988] 2 SCR 90. In the case at
hand, the sub-delegate, Marine Harvest, has been given legislative authority in the form of a
discretion to exercise independent judgment regarding the transfer of fish pursuant to condition
3.1(b) of the licence. As Marine Harvest has the ability to exercise discretion when deciding
whether to transfer fish, the presumption against sub-delegation is engaged. However, the
presumption against sub-delegation is just that, a presumption. It is not a rule of law, and is
therefore rebuttable with either express or implied statutory authorization (Brown and Evans, at
13-17). Thus, the Minister may further delegate the authority granted to him by Parliament under
section 56 of the FGRs, through express or implied authorization. There is no express
authorization in the FGRs for the Minister to sub-delegate authority under section 56 to the
aquaculture industry. As such, the question is whether the FGRs can be interpreted to impliedly
authorize a sub-delegation of the Minister’s authority.

 Page: 31
[81]

I do not think that the scope of section 56 is so narrow as to preclude the Minister from

sub-delegating to the aquaculture industry. Section 56 can be interpreted to impliedly authorize
sub-delegation of administrative and operational responsibilities if a pragmatic and functional
approach is applied. I agree with Justice Dymond’s analysis in R v Cox, 2003 NLSCTD 56, at
para 70 that the size and complexity of DFO’s mandate requires delegation of administrative
functions, provided the criteria are objective, discernable and clear.

[82]

Therefore, I find that the FGRs impliedly authorize the Minister to delegate to Marine

Harvest. However, although sub-delegation is permissible, the question remains: did the Minister
properly delegate to Marine Harvest?

C.

The Minister did not properly delegate to Marine Harvest

[83]

For the exercise of a delegated power to be proper, the delegation must provide for

standards, rules and conditions to guide the decision-making process (Vic Restaurant v Montreal
(City), [1959] SCR 58, [1958] SCJ No 69 at 99). Subordinate legislation must contain decisional
criteria that restrain the discretion given to the exerciser of the power (Brown and Evans, at 1332 and 13-33). Applying this principle to the case at hand means that the licence must contain
objective standards or criteria governing the exercise of discretion. Unlimited discretion cannot
be conferred on a sub-delegate, and supervisory control over the delegate should be retained
(Sara Blake, Administrative Law in Canada, 5th ed (Markham, Ontario: LexisNexis Canada Inc.,
2011) at 145). Absent objective criteria, the Minister could be said to have abdicated the
responsibilities imposed under section 56.

 Page: 32
[84]

In this regard, it is instructive to juxtapose what is required of the Minister by law and

what is left in the discretion of the licensee. Recall that section 56 allows the Minister to issue a
licence if:
a)

The release or transfer of the fish would be in keeping with the proper management
and control of fisheries;

b)

The fish do not have any disease or disease agent that may be harmful to the
protection and conservation of fish; and

c)

The release or transfer of the fish will not have an adverse effect on the stock size of
fish or the genetic characteristics of fish or fish stocks.

[85]

These obligations may be delegated and given operational expression if the discretion

exercised remains that of the Minister. The Minister does this, not by making individual transfer
decisions (as counsel for the Minister suggests this would necessarily require) but rather by
establishing objective criteria governing how the ministerial discretion, in the hands of Marine
Harvest, is exercised. As we will see, the subjective and imprecise language of “low risk” in
licence condition 3.1(b)(iv) falls short of that requirement.

[86]

The transfer conditions cannot be reasonable in the absence of objective criteria. In my

view, the standard of review, in this context, seeks only to find a reasonable correspondence or
nexus between the obligations on the Minister under the FGRs and the expression or articulation
of those obligations in the licence conditions. The absence of criteria to guide how “low risk” in
condition 3.1(b)(iv) is to be interpreted is not reasonable.

 Page: 33
[87]

The delegation at hand is not proper for two reasons: first, because the licence improperly

confers unlimited discretion under condition 3.1(b)(iv) onto the sub-delegate, without any
standards or criteria for the exercise of discretion; and second, because the Minister has not
retained supervisory control over the sub-delegate.

[88]

Condition 3.1(b)(iv) of the licence confers unlimited discretion onto the sub-delegate,

Marine Harvest. This provision allows a transfer of fish to occur even where the stock at the
facility have any diseases listed in Appendix IV of the licence, or when their mortalities have
exceeded 1% per day if the facility veterinarian, an employee of Marine Harvest, deems the
transfer to be of “low risk”. However, the licence does not at any point define or provide
objective criteria with respect to “low risk”. Nor is it clear as to whom or what the term “low
risk” applies to – low risk to the farmed stock? Low risk to the wild stocks? Low risk to the
consumers of fish? Nor is any timeframe indicated in respect of which the risk assessment is to
be made. Subsection 56(b) authorizes transfer only if the fish do not have a disease or disease
agent “that may be harmful to the protection and conservation of fish.” This language,
interpreted consistent with the Minister’s over-arching mandate to preserve and protect the
fishery, requires a long-term assessment of the implications of a transfer.

[89]

Further, the delegation is also improper because the Minister has not retained supervisory

control over the sub-delegate. Under condition 3.1(b)(iv) of the licence, Marine Harvest may
transfer diseased fish without the knowledge, approval, or supervision of the Minister. This does
not align with section 56 of the FGRs, nor does it align with the primary objective of the
Fisheries Act. As the Supreme Court of Canada has held, the Minister’s primary objective under

 Page: 34
the Fisheries Act is the conservation of the resource, and “this responsibility is placed squarely
on the Minister and not on aboriginal or non-aboriginal users of the resource”: R v Marshall,
[1999] 3 SCR 533 at para 40. If the Minister is to delegate under section 56, he must retain
supervisory control over transfers of fish to ensure that the primary objective of resource
conservation is met.

[90]

The requirement of supervisory control arises from the face of the FGRs themselves.

Sections 56(a), (b) and (c) are all directed to the protection, management and conservation of the
fishery as a whole; matters which the fish health staff of a licenced facility cannot, in the absence
of clear and objective criteria, have in mind. Indeed, counsel for the respondents conceded that in
making an assessment as to whether the transfer was of “low risk”, Marine Harvest’s employees
only considered the extent of the disease in the particular tank to be transferred.

[91]

As previously stated, there is no criteria provided within the licence to guide the decision-

making process as to the definition of “low risk”. It is therefore left to the facility veterinarian, in
his or her unlimited discretion, to define what is and is not “low risk”. Condition 3.1(b)(iv)
therefore authorizes transfers in the absence of criteria which relate to the obligation cast on the
Minister under sections 56(a), (b) and (c). There is, therefore, no nexus or correspondence
between the regulatory obligation on the Minister, and condition 3.1(b)(iv).

[92]

The Minister points to the requirement that written confirmation that, in the opinion of

the Marine Harvest fish health staff or veterinarian, the transfer conditions have been met, and
that a copy must be kept on file.

 Page: 35
[93]

It is, perhaps, too obvious to state that a requirement to keep a record of a decision to

transfer under condition 3.1(b)(iv), does not, in and of itself, allow for ministerial control. It
comes too late. The stock will be in the marine environment and the associated risks engaged.
Documentation may assist in ensuring accountability for decisions, but it bears no effective
relationship to the clear legal obligation imposed by section 56 that there be no transfers if the
fish have diseases or disease agents that may be harmful to the protection and conservation of
fish. No amount of record keeping will justify the exercise of a delegated power that is not
exercised according to clear, objective criteria.

[94]

It is useful to return to first principles – what is delegated is an administrative function,

something which can be executed in an operational environment. In the context of the Fisheries
Act, this has particular resonance given that what is in issue is a statutory duty to protect and
conserve the fishery, a responsibility which the Supreme Court of Canada confirms rests
“squarely on the Minister”. Here, however, considerable discretion is left in the hands of a
private party to make risk decisions about a public resource. Documenting that decision does not,
in and of itself, satisfy the requirement imposed by law that there be “no transfers that may be
harmful to the protection and conservation of fish.”

[95]

I note, in conclusion, that the Minister led no evidence as to how either condition

3.1(b)(ii) or 3.1(b)(iv) might satisfy the regulatory requirements imposed on the Minister.

 Page: 36
VII.

The precautionary principle and licence conditions 3.1(b)(ii) and (iv)

[96]

I have concluded that licence conditions 3.1(b)(ii) and (iv) are inconsistent with

subsection 56(b) on the basis of first principles governing the interpretation of subordinate
legislation. While not necessary to the disposition of this application, I return to the relationship
between the precautionary principle and the licence conditions and what is a second basis for
their invalidity. These two licence conditions are also inconsistent with subsection 56(b) in light
of the precautionary principle.

[97]

In my view, subsection 56(b) of the FGRs, properly construed, embodies the

precautionary principle. First, subsection 56(b) prohibits the Minister from issuing a transfer
licence if disease or disease agents are present that “may be harmful to the protection and
conservation of fish.” The phrase “may be harmful” does not require scientific certainty, and
indeed does not require that harm even be the likely consequence of the transfer. Similarly, the
scope of “any disease or disease agent” in subsection 56(b) should not be interpreted as requiring
a unanimous scientific consensus that a disease agent (e.g., PRV) is the cause of the disease (e.g.,
HSMI).

[98]

The consequence of interpreting subsection 56(b) consistently with the precautionary

principle is that the licence conditions must also reflect the precautionary principle. As the
licence conditions cannot derogate from or be inconsistent with subsection 56(b), they therefore
cannot derogate from the precautionary principle. As noted earlier, the Minister did not attempt
to justify that licence condition 3.1(b)(iv) was consistent with the precautionary principle, but
confined his argument in this respect to licence conditions 3.1(b)(i), (ii) and (iii).

 Page: 37
[99]

In my view, the Minister’s argument cannot stand. For the reasons given, conditions

3.1(b)(ii) and (iv) are inconsistent with section 56(b) and thus with the precautionary principle.
The conditions dilute the requirements of subsection 56(b), a regulation designed to anticipate
and prevent harm even in the absence of scientific certainty that such harm will in fact occur.

VIII. Conclusion and remedy

[100] The disposition of this application turns on orthodox principles of public law governing
the interpretation and application of subordinate legislation. Speaking for the Court in BristolMyers Squibb Co. v Canada (Attorney General), 2005 SCC 26, at para 26, Justice Binnie
reminds us that the regulations are not to be considered in light of their own limited objects and
factual context, rather, that the intent of the statute transcends the intent of the regulations. He
continues, at paragraph 38, “This point is significant. The scope of the regulation is constrained
by its enabling legislation.” So too are the licences. Their terms are constrained by the statutory
duty cast on the Minister and the regulatory pre-conditions and requirements governing transfers.
Licences cannot be issued that do not conform to the legislation, and the Minister cannot
improperly delegate his responsibilities under the FGRs for the protection and conservation of
the fishery.

[101] The applicant does not seek to invalidate the entire licence; rather she seeks an order
declaring the offending conditions invalid and severing them from the licence. I agree that a
limited remedy is in the public interest. Licence conditions 3.1(b)(ii) and 3.1(b)(iv) do not meet
the requirements under section 56 of the FGRs. Those conditions are of no force and effect and
are severed from the licence issued to Marine Harvest.

 Page: 38
[102] It is for the Minister and not the Court to devise licence conditions that are consistent
with the standards required in section 56 of the FGRs. Therefore, I turn to the question whether
the judgment of the Court should, in the public interest, be suspended, and to that end, draw
analogy to suspensions of declarations in a constitutional law context.

[103] The Supreme Court of Canada considered the issue of suspension of declaratory relief in
Canada (Attorney General) v Bedford, 2013 SCC 72 at paras 166-169, weighing the
consequences of immediate invalidity against the consequences of a suspended declaration.
Ultimately, the Court held that although neither alternative was without difficulty, given that
immediate invalidity would leave prostitution totally unregulated, moving “abruptly from a
situation where prostitution is regulated to a situation where it is entirely unregulated” this
“would be a matter of great concern to many Canadians.” Therefore, the declaration of invalidity
was suspended for one year.

[104] In the present case, while the consequences of immediate invalidity are not of the same
order or dimension as in Bedford, the interrelationship between section 56 of the FGRs and Part
VIII licence conditions will affect other licences. The Minister contends that as many as 120
licences, due to expire at the end of 2015 could be affected. Further, as licence condition
3.1(b)(iv) is declared of no force and effect there could be implications for existing aquaculture
operations, including fish recently transferred to the marine environment. The applicant, on the
other hand, urges a short suspension of judgement, as further delay increases the risk to
conservation and the protection of fish. Ms. Morton notes that it is during the spring and fall
migrations of salmon that increases proximity between farmed and wild salmon.

 Page: 39
[105] The power to suspend judgment should be used sparingly (Bedford, para 167), and only
where there is evidence of a compelling public interest. There are also limits to the Bedford
analogy in this case. Here, there is an existing legal scheme in place governing the transfer of
fish, namely Part VII of the FGRs. This declaration does not create a legislative hiatus; only
portions of the licences are affected – all other aspects of the licence conditions remain in effect.
Balancing these considerations, I am satisfied that a limited suspension of judgment is in the
public interest. This judgment will be suspended for four (4) months from the date of its issue.

IX.

Costs

[106] The genesis of this litigation, as described above, relates to the applicant’s concern that
Marine Harvest was transferring fish under the Aquaculture Regulations rather than the FGRs – a
position maintained by DFO until it filed its memorandum of argument, no affidavit having been
filed by the Minister. Accordingly, though the Minister correctly identified condition 3.1 as
relating to a transfer licence pursuant to the FGRs, DFO initially represented to the applicant that
condition 3.1 related to an aquaculture licence. The applicant’s concerns about the licence being
regulated under the Aquaculture Regulations when condition 3.1 related to the transfer of fish
merely reflected the applicant’s understanding of the licence as she was informed by DFO. This
confusion, originating with DFO’s position regarding the regulatory scheme underlying the
licence, contributed to many red herrings in this case which distracted from the central issue:
whether the transfer conditions in section 3.1 of the licence are consistent with the requirements
under section 56 of the FGRs. These considerations reinforce the appropriateness of the usual
rule that costs are awarded to the successful party.

 Page: 40
JUDGMENT
THIS COURT’S JUDGMENT is that:
1)

The application for judicial review is granted, with costs.

2)

Licence conditions 3.1(b)(ii) and 3.1(b)(iv) of the licence issued February 28, 2013
to Marine Harvest Inc. are inconsistent with the regulatory pre-conditions imposed
on the Minister of Fisheries and Oceans by section 56 of the Fishery (General)
Regulations and are declared invalid and to have no force and effect.

3)

This judgment is suspended for four (4) months from the date of its issue.

4)

Costs are awarded to the applicant. If the parties cannot agree on costs, submissions
of no more than five (5) pages may be made on quantum of costs within ten (10)
days of the date of this decision. The order in respect of costs is not suspended.

"Donald J. Rennie"
Judge

 FEDERAL COURT
SOLICITORS OF RECORD

DOCKET:

T-789-13

STYLE OF CAUSE:

ALEXANDRA MORTON v MINISTER OF FISHERIES
AND OCEANS AND, MARINE HARVEST CANADA
INC

PLACE OF HEARING:

VANCOUVER, BRITISH COLUMBIA

DATE OF HEARING:

JUNE 9 AND 11- 13, 2014

JUDGMENT AND REASONS:

RENNIE J.

DATED:

MAY 6, 2015

APPEARANCES:
Margot Venton
Lara Tessaro

FOR THE APPLICANT

Steven Postman
Lisa Nevens

FOR THE RESPONDENT
MINISTER OF FISHERIES AND OCEANS

Christopher Watson
Christopher Harvey
Ian Knapp

FOR THE RESPONDENT
MARINE HARVEST CANADA INC

SOLICITORS OF RECORD:
Margot Venton, Lara Tessaro and
Morgan Blakley
Vancouver, British Columbia
William F. Pentney
Deputy Attorney General of Canada
Vancouver, British Columbia
MacKenzie Fujisawa LLP
Barristers & Solicitors
Vancouver, British Columbia

FOR THE APPLICANT

FOR THE RESPONDENT
MINISTER OF FISHERIES AND OCEANS
FOR THE RESPONDENT
MARINE HARVEST CANADA INC