HALIFAX: A L’Ardoise fisherman was successful in his appeal in federal court.
On May 24 Justice Sylvie Roussel ruled that Lester Martell of L’Ardoise has the right to use a medical substitute operator for the current lobster season.
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.
“Having the federal court force the Minister of Fisheries and Oceans to make a decision and issue a licence is a bit precedent-setting because the position has always been that the minister has absolute discretion over licencing and fisheries,” Samson told The Reporter. “The federal court basically in this case said, ‘there is a serious issue to be heard here about whether this violates the Charter of Rights and Freedoms,’ As a result, she issued the order forcing them to allow Mr. Martell to fish during this season.”
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.
“His medical condition is such that he can’t be on a boat every day for the duration of lobster season,” Samson noted.
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.
Samson argued that the five-year limit is arbitrary and discriminates against Canadians with disabilities.
“By putting this five-year limit on having a medical substitute operator, it in essence, is DFO saying, ‘you might have care and control over the licence, but because you can’t go on the boat due to an illness or disability, you can’t keep fishing that licence,’” Samson noted. “… That clearly violates the Charter of Rights and is therefore unconstitutional.”
Samson pointed out that licence holders who’ve had a fire on their vessel, or had their fishing boat sink or damaged, can have someone else fish their licence or they can use another vessel, with no time limit. Meanwhile, those with medical or physical issues are under this five-year period.
“The judge clearly pointed in the decision that that makes it clear that this is targeted towards people with an illness or disability…” Samson explained.
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, 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 Martell’s charter rights. He also sought an injunction ordering the DFO to authorize his use of a substitute.
“The reason we had to go get the injunction is that we knew the federal court process would not be complete before their season, and so we needed the injunction to force the DFO to give him the extension to get through this season knowing that the crew had already been set, they were ready to go. They probably wouldn’t have been able to find another boat to go on had the court not granted this so late in the season,” Samson said.
To allow Martell to start fishing at the start of the season, Justice Roussel immediately provided Martell’s legal representatives with the order, Samson noted.
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.
“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,” Justice Roussel wrote.
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.
“I note from Mr. Martell’s affidavit that he continues to make all operational decisions related to the fishing vessel, including matters such as storage and repairs to the vessel and gear,” Justice Roussel’s decision reads. “He also negotiates the wharf price of the catch, arranges bait and fuel purchase and is responsible for hiring and managing the crew and 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.