Docket: T-252-24
Citation: 2024 FC 1951
Ottawa, Ontario, December 3, 2024
PRESENT: The Honourable Mr. Justice Pamel
BETWEEN: |
CANADIAN COMMITTEE FOR A SUSTAINABLE EEL FISHERY INC., NOVAEEL INC., SOUTH SHORE TRADING CO. LTD., and MITCHELL FEIGENBAUM |
Applicants |
and |
THE MINISTER OF FISHERIES, OCEANS AND THE CANADIAN COAST GUARD and THE ATTORNEY GENERAL OF CANADA |
Respondents |
ORDER AND REASONS
I. Overview
[1] In the underlying application for judicial review, the applicants seek to set aside the Total Allowable Catch [TAC]—the catch limit for the harvesting of elver, being young eels measuring less than 10 cm in length—set by the Minister of Fisheries, Oceans and the Canadian Coast Guard [Minister] for the 2024 elver fishery season [the 2024 TAC decision]; maintained again at the same limit as in each year since 2005. I set out the facts of this matter in my decision of May 3, 2024 (2024 FC 683), in which I dismissed the applicants’ motion for a series of measures for interim relief—mostly in the nature of a mandamus and a Management Order—which they requested remain in place until the Court can adjudicate their underlying application for judicial review. My decision also granted in part the motion of the respondents, represented by the Attorney General of Canada [Attorney General], seeking to strike the underlying application on account of mootness and, alternatively, to strike certain measures of relief sought by the applicants therein.
[2] Shortly after I rendered that decision, on May 9, 2024, the applicant Mitchell Feigenbaum filed notice under Rule 124 of the Federal Courts Rules, SOR/98-106 [Rule or Rules] of his intention to represent himself. This seems to have been a strategic move given that Mr. Feigenbaum is linked to the other applicants: he is the controlling shareholder and President of South Shore Trading Co. Ltd. [SSTC], one of eight elver fishery license holders under the Fisheries Act, RSC 1985, c F-14, to whom individual quotas [IQs] are allocated annually. These IQs represent the license holder’s individual catch limit associated with the licence conditions pursuant to paragraph 22(1)(a) of the Fishery (General) Regulations, SOR/93-53. In turn, SSTC is a shareholder of NovaEel Inc.—a research-based organization dedicated to the promotion and development of the eel aquaculture in Canada—and a member of Canadian Committee for a Sustainable Eel Fishery Inc. [CCSEF]—a non-profit Canadian corporation working with the Department of Fisheries and Oceans [DFO] in relation to the elver fishery.
[3] In any event, the parties now bring a series of preliminary motions leading up to the hearing on the merits of the underlying application, as follows:
(i)The respondents’ motion seeking to remove Mr. Feigenbaum as a named applicant on the grounds that he lacks standing;
(ii)The respondents’ motion seeking to strike portions of the applicants’ affidavits, including two affidavits of Mr. Feigenbaum;
(iii)Mr. Feigenbaum’s motion to compel further production by the Minister of material to supplement the Certified Tribunal Record [CTR] already produced in these proceedings by DFO pursuant to Rule 318. The motion also seeks leave, pursuant to Rule 41(4)(c), for the issuance of subpoenas allowing Mr. Feigenbaum to call a number of witnesses to give evidence in these proceedings.
[4] For the reasons that follow, I am granting the Attorney General’s motion to remove Mr. Feigenbaum as an applicant and granting in part the Attorney General’s motion to strike portions of the applicants’ affidavits. As such, I need not address Mr. Feigenbaum’s motion to compel further production under Rule 318 and for leave for the issuance of subpoenas.
II. The removal of Mr. Feigenbaum as a named applicant
[5] The history of Mr. Feigenbaum’s legal challenge to the DFO’s management of the elver fishery, as seen from the number of applications for judicial review filed with this Court over the last few years, reflects a man on a mission; his dispute with DFO—which he sets out in his 495‑paragraph original affidavit dated March 6, 2024 with 118 exhibits prepared in support of the underlying application [the Supporting Affidavit], his 80‑paragraph supplemental affidavit dated June 5, 2024 with 126 exhibits also prepared in support of the underlying application [the Supplemental Supporting Affidavit], and his 54‑paragraph supplemental affidavit dated September 5, 2024 prepared in response to the present motion by the Minister—focuses in large part on the 2012 report prepared by the Committee on the Status of Endangered Wildlife in Canada [the COSEWIC report], which classified the American eel as a threatened species. Mr. Feigenbaum disputes such a finding and asserts that the purportedly flawed COSEWIC report, along with DFO’s seemingly misguided reliance upon it, has led to a distorted and faulty management of the elver fishery, including the setting of the annual TAC.
[6] Mr. Feigenbaum also complains of “DFO’s intentional stalling on making a SARA [Species at Risk Act, SC 2002, c 29] recommendation”
with respect to the American eel, which has supposedly resulted in the continued refusal by DFO to increase the annual TAC until such a determination is made; as stated, the 2024 TAC decision maintained the TAC at the level first set in 2005.
[7] The manner in which the 2024 TAC decision affects Mr. Feigenbaum personally is summarized within a few paragraphs of the Supporting Affidavit where he states:
138. I contend that a variety of actors in the Department of Fisheries and Oceans (“DFO”) including those responsible for the 2024 TAC Decision, have engaged in a course of conduct since the early 2010’s, which cumulatively, has violated the rights and interests of, and caused harm to, commercial quota holders and other parties, including SST.
139. This course of conduct has also harmed my personal interests substantially, directly and indirectly. These harms have included substantial business losses, the resentment of my industry peers, harm to my reputation in the eyes of First Nation leaders, my loss of credibility in private and public affairs, disruption of my family relationships and the ability to plan the most basic aspects of my life such as where to live, how to plan for my retirement, how to plan my estate, and more.
140. While it is sometimes difficult for me to discern whether this course of conduct has been neglectful or intentional, I am aware that several important decision makers, including the prior Fishery Minister, have expressed attitudes, publicly and privately, that reflect bias, prejudice and hostility to SST and other quota holders, and their principals, including myself.
141. One source of hostility within the Department is quota holders’ longstanding claim that the COSEWIC 2012 decision was tainted by bias, conflict of interest and lack of objectivity by its authors.
142. That claim by myself, SST and others includes criticism of several DFO officials who contributed to and supported the COSEWIC 2012 decision.
143. The hostility of these officials was apparent in the spring of 2018, when Minister Dominic LeBlanc, announced DFO’s participation in a $1 million dollar funding arrangement for NovaEel, Inc. (NovaEel), a company founded by SST, Feigenbaum and other quota holders to develop global-class, domestic aquaculture capacity in North America, discussed further herein.
144. The senior DFO officials who support COSEWIC 2012 fiercely resisted this funding. They expressed the view that financial support to NovaEel would be premature before a SARA recommendation was finalized, and would unfairly signal to range-state colleagues that Canada did not intend to put American eel on the SARA list.
[Emphasis added.]
[8] As stated, Mr. Feigenbaum is neither an elver licence holder nor an IQ holder, a fact he does not deny; rather, it is his company, SSTC, which has historically received a licence and been allocated an IQ each year. In fact, SSTC is the only license and IQ holder of all the applicants in this matter. As such, and putting aside the query of what interests the remaining applicants have in this matter, the Minister brings a motion for an Order removing Mr. Feigenbaum as a named applicant for lack of standing, arguing that he is not directly affected by the 2024 TAC decision and that the other applicants have addressed the issues to be dealt with in relation to the underlying application.
[9] Subsection 18.1(1) of the Federal Courts Act, RSC 1985, c F-7) [FCA] states:
18.1 (1) An application for judicial review may be made by the Attorney General of Canada or by anyone directly affected by the matter in respect of which relief is sought.
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18.1 (1) Une demande de contrôle judiciaire peut être présentée par le procureur général du Canada ou par quiconque est directement touché par l’objet de la demande.
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[10] To have direct standing, Mr. Feigenbaum must be “directly affected” by the 2024 TAC decision in that the decision must affect his legal rights, impose legal obligations on him, or prejudice him in some way (League for Human Rights of B’nai Brith Canada v Canada, 2010 FCA 307 at para 58); from what I can tell, none of these situations apply to Mr. Feigenbaum.
[11] No argument is made that the 2024 TAC decision affects Mr. Feigenbaum’s legal rights or that it imposes a legal obligation on him. As to whether Mr. Feigenbaum is prejudiced by the 2024 TAC decision, I accept that, as a shareholder of SSTC, he has a commercial interest in the issues raised by the underlying application; however, a commercial interest in and of itself is insufficient to ground a claim of direct standing (Oceanex Inc. v Canada (Transport), 2018 FC 250 at para 259 (affirmed on appeal in Oceanex Inc. v Canada (Transport), 2019 FCA 250). In any event, Mr. Feigenbaum’s interest cannot be indirect (Forest Ethics Advocacy Association v Canada (National Energy Board), 2013 FCA 236 at paras 26–27); here it is given his commercial interest flows from his shareholding in SSTC.
[12] However, Mr. Feigenbaum claims to be affected by the 2024 TAC decision, not only financially but also personally. As the controlling shareholder of SSTC, Mr. Feigenbaum asserts that he has devoted himself to the interests of SSTC for nearly 25 years; he also claims to be the controlling shareholder—I take it via SSTC—and Chief Executive of NovaEel Inc., in which he actively participates. As such, argues Mr. Feigenbaum, in his view, decisions regarding the TAC dictate his work efforts, the allocation of his time among many personal and professional priorities, his public and private messaging to influential third parties, his strategic advice to shareholders, business allies and potential investors, and his interaction with government officials, and affect his influence, reputation and credibility.
[13] I have little doubt that Mr. Feigenbaum has immersed himself in the elver fishery, is responsible for SSTC’s “major operational and strategic decisions”
, is the “company’s public face in the media”
, is an “advocate”
for the industry and the leading voice of SSTC, NovaEel Inc. and CCSEF in this area, and has spent “over a thousand hours devoted solely to the topic of the [elver] conservation status.”
Having read his affidavits, I also have little doubt that Mr. Feigenbaum sees himself as—and may well be—the face of the elver fishery for Atlantic Canada and the person best suited to speak to the interests of the industry. However, I do not agree that his devotion, perspective, perseverance, knowledge and, most importantly, his own personal investment in the industry give him direct standing to appear in this matter. It may be that Mr. Feigenbaum’s personal life and interests are impacted by the decision under review, but such an impact would be, as stated, indirect, through his shareholding in SSTC and his participation in the other applicants. I see nothing different in how Mr. Feigenbaum has devoted himself to the elver fishery from how many other individuals, stakeholders, and shareholders devote themselves to causes or industries in which they have a financial interest; involvement and personal interest do not equate to direct standing in this case.
[14] Nor does Mr. Feigenbaum meet the test for public interest standing. The threefold test for public interest standing was set out in the Supreme Court of Canada’s decision in Canadian Council of Churches v Canada (Minister of Employment and Immigration), 1992 CanLII 116 (SCC), [1992] 1 S.C.R. 236, namely, that:
(a)a serious justiciable issue has been raised;
(b)the party seeking public interest standing has a genuine or direct interest in the outcome of the litigation; and,
(c)there is no other reasonable and effective way to bring the issue before the Court.
Mr. Feigenbaum must persuade me that these factors, applied purposively and generously, militate in favour of me exercising my discretion to grant him public interest standing (Canada (Attorney General) v Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45 [Downtown Eastside] at para 37).
[15] I accept that there is a serious issue raised in the underlying application and that Mr. Feigenbaum’s interest may be genuine. However, the problem for Mr. Feigenbaum is that there is no distinction between the arguments he will make and the arguments raised by the other applicants; for all intents and purposes, he is indistinguishable from the other applicants which he is directing in relation to the underlying application. As to Mr. Feigenbaum’s argument that his background and distinct personal goals will somehow provide a broader perspective and allow for a unique contribution to the presentation of the applicants’ case, again, I have no doubt that Mr. Feigenbaum feels he, possibly even more so than counsel he appointed initially to represent all applicants, is best placed to make oral submissions and present the Court with the views of the applicants. That, however, does not persuade me that he should be granted public interest standing in this matter.
[16] As stated by the Supreme Court in Downtown Eastside, the third factor of the test for public interest standing “should be applied in light of the need to ensure full and complete adversarial presentation and to conserve judicial resources”
(at para 49). From what I can tell, here, there indeed exists another reasonable and effective way for the issues raised by the underlying application to be determined by this Court, and Mr. Feigenbaum, through his direction of the other applicants, has created it by having the applicants jointly file the underlying application, supported by his two affidavits.
[17] Taking a purposive approach to the issue, I cannot see how Mr. Feigenbaum’s involvement as a stand-alone applicant is an economical use of judicial resources. Here, Mr. Feigenbaum’s company SSTC, as the only elver license and IQ holder of the applicants, to say nothing of the other applicants, is certainly able to handle the task through duly appointed counsel. As such, there is no risk that the issues raised in this case are not “presented in a context suitable for judicial determination in an adversarial setting”
, nor that the underlying application will not “serve the purpose of upholding the principle of legality”
(Downtown Eastside at para 50). Here, there is a reasonable and effective way to bring the issue before this Court without Mr. Feigenbaum being a party; in fact, the other applicants rely principally on Mr. Feigenbaum’s affidavits in support of their claim. Granting Mr. Feigenbaum public interest standing simply to add his voice to that of counsel for the other applicants would be superfluous; it is through his evidence that Mr. Feigenbaum can give voice to his assertions, to the extent relevant and permitted in the context of this application, that DFO dismissed his claims “without explanation”
, thereby “conveying the impression that they are not even worthy of consideration”
, leading Mr. Feigenbaum’s voice being “stifled, his concerns ignored, his reputation diminished.”
In short, the fight that Mr. Feigenbaum is undertaking is already being channelled, for the purposes of the underlying application, through the other applicants which he controls and advises, and who have addressed the issues to be dealt with through their counsel. Consequently, weighing the factors, as I must, I see no reason to grant Mr. Feigenbaum public interest standing in this matter.
[18] Mr. Feigenbaum also points to his past and ongoing personal involvement as a party in this application—I take it since the filing of his notice under Rule 124 that he is to represent himself—in support of his continued status. I do not see how that assists Mr. Feigenbaum. Unless there is evidence of severe prejudice—of which I see none here—giving any weight to a party’s past participation in the proceedings prior to his or her standing being challenged is tantamount to a self-fulfilling prophecy: I am a party therefore I have standing. I cannot accept such an argument, and nor is the fact that Mr. Feigenbaum’s participation as a co-applicant in another pending application before this Court (T-1008-23) seeking to set aside the Minister’s decision to close the elver fishery in 2023 of any relevance to the issue before me now.
[19] Finally, I accept that the Court has some flexibility and that I am to interpret section 18.1 of the FCA generously, in the exercise of my discretion, so as to recognize standing where warranted under the circumstances (Downtown Eastside at paras 45–48). As stated by the Federal Court of Appeal in Laurentian Pilotage Authority v Corporation des Pilotes de Saint-Laurent Central Inc., 2019 FCA 83 at paragraph 32: “the requirement for standing is to be interpreted taking into consideration the objects of the FCA, notably justice, fairness, practicality, order, efficiency and the minimization of cost, delay and waste, not with a view to laying traps.”
(See also Teva Canada Limited v Canada (Health), 2012 FCA 106 at para 55.) Here, however, I see nothing in Mr. Feigenbaum’s assertions and arguments that would have me believe that the objectives of the FCA cannot be achieved without him being given direct or public interest standing in this matter; in fact, from my assessment, quite the contrary.
[20] As a final note on this issue, in response to the respondents’ motion to remove Mr. Feigenbaum as an applicant in this matter, the other applicants filed limited submissions, in essence, supporting Mr. Feigenbaum’s claim for standing and, alternatively, requesting that the motion be postponed and considered at the hearing on the merits of this matter. Put simply, I see no reason to delay the issue of standing until the hearing on the merits. Accordingly, I will grant the respondents’ motion to remove Mr. Feigenbaum as an applicant in this matter.
III. The striking of certain parts of the applicants’ evidence
[21] The CTR is relatively small, comprised of a memorandum prepared by DFO for the Regional Director General, Maritimes Region [RDG]—the individual who took the 2024 TAC decision—along with two attachments: the first being a summary of elver landings over the years, with corresponding market values, and the second being the 2023 Science Advisory Report on the status of American eel and elver fishing in the Maritimes Region, along with a summary of that report.
[22] The applicants have served the following affidavits upon the respondents:
(i)the Supporting Affidavit: 495 paragraphs with 118 exhibits;
(ii)the affidavit of Paul Smith dated March 8, 2024: 43 paragraphs with 12 exhibits;
(iii)the affidavit of Genna Carey dated March 11, 2024: 49 paragraphs with 12 exhibits; and
(iv)the Supplemental Supporting Affidavit: 80 paragraphs with 126 exhibits.
[23] The Attorney General seeks to strike out large portions of the applicants’ affidavits and accompanying exhibits by pointing out two fatal flaws in their evidence:
(i)portions of the affidavits do not comply with Rule 81(1) as they are not confined to the facts within the affiants' personal knowledge, but instead include hearsay, opinions, legal argumentation, and irrelevant information; and,
(ii)while the balance of the contents of the affidavits evidence may be confined to facts within the affiants' personal knowledge, most of these are not admissible under any of the exceptions to the general rule against this Court receiving evidence in an application for judicial review that was not part of the record before the decision-maker at the time (Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 [Access Copyright] at para 20).
[24] I should mention that, in their response to the Attorney General’s motion, the applicants argue that I should not make an advance ruling on the evidence, but rather allow the matter to be determined by the judge hearing the underlying application on the merits; the applicants assert that the Attorney General is looking to assess the individual paragraphs out of context, thus allowing the Court to consider the motion to strike with the benefit of the full record would be more appropriate under the circumstances. In any event, argue the applicants, the judge hearing the matter on the merits will be in a position to assess the weight to be given to any portion of the evidence.
[25] The determination of whether the Court should make an advance ruling on the admissibility of the evidence is a matter of discretion, to be exercised only where clearly warranted, and taking into consideration “whether an advance ruling would allow the hearing to proceed in a timelier and more orderly fashion,…whether the issue of admissibility turns on discretionary matters over which reasonable minds may differ, rather than a clear question of law”
or whether “the issue is relatively clear cut or obvious”
(Access Copyright at paras 11–12).
[26] In this case, I am of the view that an advanced ruling is necessary. From my review of the affidavit evidence, it seems to me that the applicants are looking to debate the manner in which the elver fishery in Canada has been managed, and will continue to be managed in the future. Not only is that issue beyond the scope of this application, but, as I mentioned in my decision of May 3, 2024, at paragraph 38, the Court should not get involved in the management and policing of the fisheries in this country, and should certainly avoid managing the manner in which the Minister is carrying out her statutory powers. Here, the only issue is the reasonableness of the 2024 TAC decision.
[27] The general nature of the affidavit evidence of the applicants, and thus the debate that the applicants are looking to have before this Court, is reflected in a few of the early paragraphs of Mr. Feigenbaum’s Supporting Affidavit:
[7] A purpose of this affidavit is to support the Application by describing violence against persons, damage to property, willful disrespect for conservation principles by Canadian and foreign citizens, the loss of public confidence in law enforcement agencies due to rampant poaching by well-organized criminal networks inside of Canada (aided and abetted by foreign actors), all directly attributable to DFO’s failure and/or unwillingness to regulate and enforce the elver fishery in a proper manner.
[8] Current problems in the elver fishery are directly attributable to: DFO’s stubborn refusal to consider increasing the elver fishery TAC in 2024 even modestly, in addition to the Department’s unwillingness to apply its conversion policy, its bad-faith application of its willing buyer/willing seller approach, its persistent refusal and failure to implement a proper traceability system, its failure to protect the East River survey, its efforts to undermine NovaEel’s value-add goals, its February 8, 2024 decision to eliminate a 25-year requirement for dockside monitoring in the elver fishery; and its February 13 Notice of Intent Not to Open the Fishery in 2024.
[9] A purpose of this Affidavit is to detail for the Court the historical context of the elements of DFO’s course of conduct set forth in the prior paragraph. This background is necessary to the Court’s assessment of Applicant’s substantive claims and the relief necessary to prevent the Minister and Department from repeating their past failures and opening the upcoming 2024 elver fishing season rather than cede it to organized criminals and the Crown’s domestic and foreign adversaries.
…
[11] I address the merits of the Application by describing in full detail the breadth of concerns I and others have shared with DFO about the COSEWIC 2012 report and other factors that lie at the heart of the 2024 TAC decision and elver fishery management.
[Emphasis added.]
[28] The overriding requirements in respect of the contents of an affidavit are set out in Rule 81(1); the contents are generally to be limited to relevant information of assistance to the Court, without gloss or explanation, and which are neither abusive or clearly irrelevant, nor in the nature of opinions, arguments or legal conclusions (Attorney General v Quadrini, 2010 FCA 47 at para 18; Canada (Board of Internal Economy) v Canada (Attorney General), 2017 FCA 43 at para 46), bearing in mind that sometimes the line between fact and opinion is rather fine (Graat v The Queen, 1982 CanLII 33 (SCC), [1982] 2 S.C.R. 819 at 835; Seklani v Canada (Public Safety and Emergency Preparedness), 2020 FC 778 at para 20), and that some amount of argumentation in an affidavit has been permitted where it is isolated and insignificant, and where the Court is able to ignore any portion which is improper (Coldwater First Nation v Canada (Attorney General), 2019 FCA 292 at para 22). I will keep this in mind; however, I must say that a significant portion of the applicants’ affidavit evidence, which falls under the category of opinion and argumentation, is far from isolated and insignificant.
[29] As regards the second flaw identified by the Attorney General, there is little doubt that applications for judicial review are to be determined based on the record that was before the decision-maker at the time the decision under review was made; exceptions to this rule are narrow and generally involve either: (1) non-opinionated and non-argumentative general background evidence meant to assist the Court in understanding the history and nature of the case, but without the evidence being relevant to the merits of the matte; (2) where absence of evidence is claimed, evidence which would go to show that the decision made purportedly rests upon a key finding of fact which cannot be found in the record; or (3) evidence that is relevant to show a breach of natural justice, procedural fairness or improper purpose by the decision-maker that is not evident in the record before them at the time (Access Copyright at para 20; Delios v Canada (Attorney General), 2015 FCA 117 [Delios] at paras 44–36; Love v Canada (Privacy Commissioner), 2015 FCA 198 at para 17; Bernard v Canada (Revenue Agency), 2015 FCA 263 at paras 20–25).
[30] Here, Mr. Feigenbaum (supported by the other applicants) argues that the 2024 TAC decision was unreasonable because: (1) it was arbitrary and went against the DFO Maritime Region’s own objective standards or reference points; (2) relied upon a flawed COSEWIC report; and (3) was contrary to the DFO’s previous longstanding policy which tied elver fishery expansion on a reduction of eel harvests (adult eel conversions). (See paragraph 6 of his written representations).
[31] First, I agree with the respondents that the underlying application is not about COSEWIC’s deliberative processes or any failings in the COSESWIC report, and I am not about to allow in this context a debate on whether the COSEWIC report was or was not flawed; that is not the role of the Court on judicial review. As stated by Justice Pelletier (as he then was) in Inverhuron & District Ratepayers’ Assn. v Canada (Minister of The Environment), 191 FTR 20, 2000 CanLII 15291 (FC) at paragraph 71:
[71] It is worth noting again that the function of the Court in judicial review is not to act as an “academy of science”or a “legislative upper chamber”. In dealing with any of the statutory criteria, the range of factual possibilities is practically unlimited. No matter how many scenarios are considered, it is possible to conceive of one which has not been. The nature of science is such that reasonable people can disagree about relevance and significance. In disposing of these issues, the Court’s function is not to assure comprehensiveness but to assess, in a formal rather than substantive sense, whether there has been some consideration of those factors which the Act requires the comprehensive study to address. If there has been some consideration, it is irrelevant that there could have been further and better consideration.
[Emphasis added.]
(See also Greenpeace Canada v Canada (Attorney General), 2016 FCA 114 at para 61; Morton v Canada (Fisheries and Oceans), 2019 FC 143 at para 273.)
Although it would be open to the applicants to argue that the COSEWIC report had not been taken into consideration by the RDG—which is not the argument they are making by the way—, it would not be open to them to argue that it was taken into consideration, however unreasonably, because the report was flawed. I intend therefore to strike portions of affidavits and exhibits, which address the contents and findings in the COSEWIC report.
[32] As to the other issues raised by Mr. Feigenbaum—that the 2024 TAC decision was arbitrary, went against existing standards, and was contrary to one of DFO’s previous longstanding policy—these are issues which may well go to the reasonableness of the 2024 TAC decision, and any evidence of such standards and policies which could arguable support such assertions would, I think, be admissible whether under the general background exception or the improper purpose exception. However, as cited by Justice Stratas with reference to the general background exception, “[c]are must be taken to ensure that the affidavit does not go further and provide evidence relevant to the merits of the matter decided by the administrative decision-maker, invading the role of the latter as fact-finder and merits-decider. Access Copyright, above at paragraph 20(a)”
(Delios at para 46). I also appreciate that the Attorney General would like to keep the debate as narrow as possible, given what he calls the limited nature of the decision under review. However, in fairness, I think there is a need for some background evidence in order to provide colour the factual matrix of the debate. It would be challenging for any judge to fully understand and assess the reasonableness of the 2024 TAC decision without understanding the state of the elver fishery as it stands today, as well as the general concerns the applicants may have, rightly or wrongly, regarding the causes thereof.
[33] In addition, and although I generally agree with the respondents that the underlying application is not about the pending decision on a SARA listing, First Nation reconciliation, or the management of the elver fishery—all issues being covered at length in the applicants’ affidavit evidence, which potentially may take the Court down several rabbit holes that will only result in a waste of time and resources for all—to the extent that permissible evidence relating to these issues may have bearings on whether the 2024 TAC decision was arbitrary, went against existing standards, or was contrary to one of DFO’s previous longstanding policy without sufficient explanation as to why, the applicants should be permitted to introduce it.
[34] Finally, accusatory statements are not helpful, nor is recounted what someone may or may not have said at any one point in the past; such evidence, again, threatens to take the Court down further rabbit holes, and a path where there will be need for further responses, further accusations and debates as to context and meaning of statements made or not made, thus well beyond the scope of the underlying application.
[35] All things considered, and looking at the matter as a whole, I would strike the following portions of the applicants’ affidavit evidence:
(i)the Supporting Affidavit: paragraphs 10, 18, 19‑24.1, 25, 26‑137.1, 139‑142, 144‑145, 150‑162, 165‑167, 188‑200, 207‑218, 223‑224, 226‑229, 256‑275, 277‑281, 283‑292, 294‑297, 309.1‑340, 347, 354, 357‑362, 363.3‑363.7, 365‑366, 369, 372‑406, 408‑420, 425‑432, 434‑437, 439‑444, 448‑454, 457‑458, 460‑465, 468‑475, 478‑487.3. In addition, all the exhibits are to be struck except Exhibits 1 and 1.1;
(ii)the affidavit of Mr. Paul Smith dated March 8, 2024: paragraphs 11‑42, and all exhibits except Exhibits 1 and 2;
(iii)the affidavit of Ms. Genna Carey dated March 11, 2024: paragraphs 9‑13, 17, 20‑25; 30‑43, 45, and all exhibits except Exhibit K;
(iv)the Supplemental Supporting Affidavit: paragraphs 4‑5, 8‑9, 11‑24, 26‑53, 55‑61, 64‑66, 64(bis)‑65(bis), 69‑77, and all the exhibits.
IV. Mr. Feigenbaum’s motion to compel further production and for leave to issue subpoenas
[36] Given my decision regarding the removal of Mr. Feigenbaum as an applicant, I will dismiss his motion for production of further material and for the calling of witnesses at the hearing of this matter.
[37] The other applicants make a request, tied to Mr. Feigenbaum’s motion to compel further production and for leave to call witnesses which I dismissed, that I consider and preserve their rights to have the June 1, 2024 electronic correspondence between Dr. Bradford, a former DFO Scientist, and Mr. Feigenbaum included in the record on the underlying application, or alternatively, that I allow them to file a limited new supplementary affidavit or, that I grant them leave to issue a subpoena to Dr. Bradford in order that he appears at the hearing on the merits in this matter.
[38] Dr. Bradford was one of the individuals whom Mr. Feigenbaum wished to subpoena to attend and give evidence at the hearing on the merits of this matter. The applicants suggest that Dr. Bradford is most familiar with the COSEWIC report and process by which it was arrived, and will purportedly confirm the applicants’ substantive and procedural concerns regarding the report.
[39] I cannot agree to allow the applicants to include the evidence of Dr. Bradford in the record; from the review of applicants’ affidavit evidence, the evidence of Dr. Bradford, even if it confirms the applicants’ position, would only be relevant in the event I allowed the issues of COSEWIC’s deliberative processes or any failings in the COSESWIC report to enter the debate on the underlying application. As I have not, there seems little need for Dr. Bradford’s testimony. I will therefore refuse the request of the other applicants.
V. Conclusion
[40] As regards costs, having considered the matter, I award costs in a lump sum amount of $2500 to the respondents with respect to all three motions.
[41] Finally, with the issuance of my decision in this matter, the timelines set out in my direction of August 28, 2024, for the filing and service of the parties’ record in respect of the underlying application now apply.
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