The federal court recently made a ruling which was significant in maintaining the current owner-operator policy for the inshore fishery, while recognizing that current policies discriminate against those with disabilities.
On May 24, Justice Sylvie Roussel ruled that Lester Martell of L’Ardoise has the right to use a medical substitute operator to fish his lobster licence.
Cox & Palmer lawyer, and former Cape Breton-Richmond MLA Michel Samson, appeared on Martell’s behalf during the federal court proceeding and said the decision was noteworthy in that it forced the Minister of Fisheries and Oceans to issue a licence , whereas previously, it was understood that the minister had “absolute discretion” over licencing.
Martell, who is 85, has been fishing since 1947 and has held a licence to fish in Lobster Fishing Area 30 off eastern Richmond County since 1978.
Martell fished the licence full-time until problems with his knees caused him “excruciating pain and difficulty with balance,” according to Justice Roussel’s decision. He underwent knee replacement surgery in 2009, which resulted in surgical complications. In 2012, he underwent a replacement surgery for his other knee. Martell continues to experience difficulty with balance.
In 2009, Martell was approved for a medical substitute operator and his requests were granted on a yearly basis by the Department of Fisheries and Oceans (DFO).
But in May, 2015, Martell was given notice from the DFO that his request for that season extended beyond the five-year period and further approval would be assessed on a case-by-case basis.
In a Letter to the Editor, Samson said in 2015, the DFO claimed to be addressing possible abuse of the policy by enforcing the five-year limit and leaving disabled or ill license holders with little choice but to sell their license. He said this is a clear violation of section 15 of the Charter of Rights and Freedoms, which protects against discrimination.
Samson argued that the five-year limit is also arbitrary and inconsistent. He pointed out that licence holders whose vessels sank or were damaged, can have someone else fish their licence or they can use another vessel, with no time limit.
On May 10, 2016, Martell was told his medical substitute request for that season was approved but future requests would not be considered. The Maritimes Region Licensing Appeal Committee then granted him approval to use a medical substitute operator until June 30, 2017.
In an appeal to the Atlantic Fisheries Licensing Appeal Board (AFLAB), Martell was then approved to use a medical substitute operator for the 2018 season.
But around March, 2019, the Deputy Minister of the Department of Fisheries denied Martell’s request for an extension.
On April 2, Martell applied for a judicial order setting aside the deputy minister’s decision, based on his charter rights. He also sought an injunction ordering the DFO to authorize his use of a substitute.
In her decision, Justice Roussel pointed to general fishery regulations which provide a legal exception for those unable to fish due to circumstances beyond their control. In these cases, fishery officers, or a DFO employee, can authorize another person to fish the licence.
She pointed out that the goal of the owner-operator policy is to “maintain an economically viable inshore fishery by keeping the control of licences in the hands of independent owner-operators in small coastal communities and to allow them to make decisions about the licence issued to them.”
In his letter, Samson echoed Justice Roussel’s support for the owner-operator policy. Samson explained that in the late 1980s and early 1990s, DFO introduced the medical substitute operator policy which allowed a license holder to apply to DFO and appoint a substitute operator to operate their vessel and fish their license due to the license holder having an illness or disability which prevented them from fishing themselves. In most cases, the substitute operator was a family member, deck hand or close friend. While the policy indicated that there would be a five-year limit to the use of the substitute operator, this was not enforced by DFO.
In 2008, the DFO introduced the five-year limit on cases like Martell’s, but Roussel agreed with Martell’s legal counsel that this infringes on the rights of fishermen with disabilities.
Justice Roussel added that neither the DFO, nor any of its related agencies, disputed Martell’s claims of discrimination. She also concluded that Martell is in line with current policy as he makes all operational decisions, including vessel and gear storage and repairs, he negotiates the wharf price of the catch, Martell arranges bait and fuel purchases, is responsible for hiring and managing the crew, and is responsible for the fishing operation’s financial affairs.
Without the extension, Justice Roussel agreed that Martell’s rights to earn a livelihood, to retain or re-apply for another licence, and to transfer the licence to family members, will all be infringed.
In his letter, Samson called for the Minister of Fisheries and Oceans orders DFO to stop enforcing this five-year limit and undertake an immediate review of this policy. The former provincial cabinet minister argued that DFO can apply a simple test to ensure that lobster license holders using the policy continue to maintain care and control over their license if there are any legitimate concerns of abuse. Forcing license holders to sell their license after five years because they are disabled or have a medical condition that prevents them from going on the boat is both wrong and unconstitutional, he added.
In the face of his legal precedent, the fisheries minister will have no choice but to put a halt to the five-year rule, review that policy, and hopefully change, or eliminate it altogether.
Any policy which treats one group different based on their medical condition not only violates constitutional rights, but creates an economic hardship for those unable to fish for circumstances beyond their control.
It’s unfortunate it took multiple challenges and appeals to get to this point, but now the ball is in the court of the federal government.
It’s up to them to do the right thing.