Decision Date:  July 16, 2008

Panel:  Alan Andison

Keywords:  Wildlife Act – s. 15; licence; moot appeal; Kokanee salmon; fish stocking; Borowski v. The Attorney General of Canada, [1989] 1 S.C.R. 342

Jack Leggett appealed a decision of the Director, Fish and Wildlife, Ministry of Environment (the “Ministry”), issuing a licence to possess and transport Kokanee salmon.  The licence was issued to a Fish and wildlife Specialist with the Ministry as part of the Ministry’s decision to stock Chimney Lake, near Williams Lake, with a diversity of fish species for recreational anglers.  Mr. Leggett appealed on various grounds, including a concern that the Kokanee may successfully spawn in the lake, thus competing with the existing rainbow trout population and invading a downstream lake.  He asked the Board to reverse the decision to issue the licence.

After Mr. Leggett had filed his appeal, he advised the Board that the Kokanee salmon had been transported to and deposited into the lake.  In spite of this, Mr. Leggett advised that he would like to proceed with his appeal.

The Board sought submissions from the other parties on Mr. Leggett’s request to proceed with the appeal, given that the Kokanee were already in the lake.

The Board considered whether it should hear the appeal when all rights under the licence have been exercised.  Specifically, Board considered the test for mootness that was set out by the Supreme Court of Canada in Borowski v. The Attorney General of Canada.

The Board found that, given its statutory powers in deciding appeals, it could not grant a remedy that would have any effect on the parties’ rights; namely, it could not order that the Kokanee be removed from the lake.  The also Board found that its authority is limited to the decision under appeal, and therefore, it has no jurisdiction to make an order preventing future introductions of Kokanee into the lake.

In addition, the Board noted that holding a hearing and making a decision on this appeal would require the expenditure of significant resources, without the benefit of an effective remedy.  While there have been cases where the Board has found an appeal moot but provided some guidance to the parties for future reference, this has normally occurred when the issue of mootness was identified after the hearing had already occurred, and where in the interests of judicial economy (i.e., to avoid repetition of the case), the Board was in a position to comment.  That was not the situation in this case.

The appeal was dismissed.