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Brad Caldwell

By Brad Caldwell



( Published in Western Fish and Seafood (Eagle Harbour Holdings Ltd.) March 2003)


In the latest development of the Carpenter Fishing saga, the British Columbia Court of Appeal has recently released a decision confirming that Carpenter Fishing Ltd. (and five other litigants) does not have the legal standing to apply to the court for a declaration that the composition of the Federal Court appeal panel hearing the original Carpenter Fishing appeal in 1997, was unconstitutional.  

Background Information

 The original Carpenter Fishing case involved a challenge to the Current Owner Restriction (C.O.R.) of the individual quota system (I.V.Q.) set up for the halibut fishery in 1990.  When the I.V.Q. system was implemented, it allocated the total quota amongst the licence holders on the basis of a formula allowing a weight of 30% for the length of the vessel and 70% for catch history of the licence in the best fishing year during the qualifying period of 1986 through 1989.  The C.O.R. provided that if a licence was purchased during the qualifying period, the new owner of the licence was restricted to using landings for only the years when the new owner held the licence. If a licence was purchased after the qualifying period, only the landings of the previous owner could be used.

 The seven plaintiffs were all persons who were limited to a choice of less than the full four years in the qualifying period because they had acquired their halibut licences between the autumn of 1987 and February of 1990.  After a six day trial of the matter in 1996 before the only Federal Court judge who had been appointed from British Columbia, the court declared that the C.O.R was a nullity and no longer enforceable by D.F.O.  It then invited the parties to continue the trial at a later time to determine the damages to be paid to the plaintiffs for their loss of income between 1990 and the 1996.

 As a result of this decision, for the 1996 fishing season D.F.O. redistributed the overall quota for the fishery so as to increase the individual quotas for the 38 licence holders affected by C.O.R. and to decrease the quotas for the remaining 397 licence holders.  According to D.F.O., the average gain for the 39 licence holders was 9,148 pounds or $31,103 dollars, assuming a landed value of $3.40 per pound.  The average loss per licence for the remaining 397 licence holders was 880 pounds or $2,992 dollars.

 An appeal of the trial court’s decision was heard on December 4, 1997, with the assistance of counsel for the Pacific Coast Fishing Vessel Owners Guild, which intervened at the appeal level to support the D.F.O. position. A decision to overturn the decision of the trial court was given by Decarry, J.A. with Pratt, J.A. and Linden J.A. concurring.  Of these appeal court judges, two were appointed from Quebec and one was appointed from Ontario.

In the vast majority of cases, an adverse ruling from an appeal court effectively ends the litigation.  However, presumably because of both the large amount of money involved and the tenacity of the plaintiffs and their legal counsel, the Carpenter Fishing saga continued. The Supreme Court of Canada dismissed an application for leave to appeal the Federal Court of Appeal decision on 20 August 1998.  It also declined a subsequent motion for reconsideration of the denial of leave to appeal.  Still refusing to concede defeat, the litigants then brought an application before the original trial judge for a direction to continue the trial.  The trial judge then declined to hear the motion on the ground that the action had been conclusively dismissed and he was functus officio.  On appeal, the Federal Court of Appeal ruled that no appeal lay from that direction and an application for leave to appeal that ruling to the Supreme Court of Canada was dismissed on 14 October 1999. 


Supreme Court Proceeding

 Still refusing to take no for an answer, the litigants filed a petition in the Supreme Court of British Columbia challenging the provisions of the Federal Court Act requiring 10 of the 31 appointments to the Federal Court be from Quebec and requiring Federal Court judges to reside within 40 kilometres of Ottawa.  The motions judge summarized the argument as follows:

 The petitioners rely on this history of litigation in Federal Court to establish the factual matrix to support their argument that the composition of the Federal Court of Appeal does not ensure that Western regional considerations are taken into account, particularly when common law judges do not form the majority of an appeal panel in cases originating from a common law jurisdiction. The petitioners complain that in their litigation none of the appeal judges had practiced law in British Columbia; yet they overturned the decision of a trial judge appointed from British Columbia. The point the petitioners raise is that the decision of the Federal Court of Appeal resulted from distinctly different decision making methodology between judges trained in the civil and the common law.

 The motions judge showed very little sympathy for this argument and dismissed the motion on three different grounds:  (1) since the litigants were not Federal Court judges or persons interested in applying to be Federal Court judges, they did not have standing to bring the matter before the court; (2) since the true purpose of the challenge to the Federal Court Act was to challenge the correctness of the Federal Court decision in Carpenter Fishing v. Queen, this was an improper collateral attack on a judgement of another court; and (3) since the issue of the objection to the  composition of the Federal Court could have been raised at the original Federal Court appeal, the litigants were estopped by the res judicata (matter adjudicated) doctrine.    With respect to the substantive argument based upon the lack of judges from British Columbia appointed to the Federal Court of Appeal, although a previous motions judge (on an unsuccessful application by the Crown to strike their case) had described it as “imaginative and may well succeed”, the motions judge rejected the argument in the following words:

  There is absolutely no evidence to support the assertion that because the judges on the petitioners' appeal were from Quebec and Ontario, this had some impact on the result. This suggestion is pure speculation, is unsupported by any evidence and is an insult to the judges of the appeal court.

At the court of appeal level, the court restricted its reasons to the issue of standing.  It confirmed the motion judge’s decision that the Carpenter litigants did not have standing.  In doing so, the court said that the proper allocation of judicial resources was a factor that influenced its decision.  In this regard, it said “[t]hey are disappointed litigants with a sense of grievance that fuels this petition, and their claim to public interest standing cannot be separated from that grievance.  They are really asking for more judicial time and attention to pursue their grievance and to attempt to undermine the legitimacy of the Federal Court order that is beyond further direct challenge.”



 Back in 1997 when the Carpenter litigants first won their case at trial, I stuck my neck out and wrote a letter to the editor of the Westcoast Fisherman predicting their case would be overturned on appeal.  I did this because in my view, as someone born, bred and educated in British Columbia, there is nothing improper about the Minister of Fisheries favouring long time halibut fishermen over new entrants to the fishery.  Similarly, I am now going to stick my neck out and predict that if and when leave is sought to appeal this decision to the Supreme Court of Canada, the Carpenter litigants will be unsuccessful. Given the fact that the decision being appealed involves a matter where the motions judge was entitled to make a discretionary decision, in my view it is very unlikely that an appeal court is going to grant leave to appeal that decision.  In other words, after at least six appeals, this decision is the last nail in the coffin of Carpenter Fishing et al. v. the Queen.


Brad Caldwell is a Vancouver based lawyer and former fisherman and towboat worker whose practise is primarily devoted to fisheries, maritime and insurance matters.