Decision Date:  July 18, 2012

Panel:  Alan Andison

Keywords: Wildlife Act – ss. 52(1), 101.1(6); Angling and Scientific Collection Regulation – ss. 11(.1), 11(1.2), Schedule A; angling guide; angler day quota; stay application

Walter Faetz and four other angling guides (the “Guides”) appealed five separate decisions issued by the Regional Manager, Recreational Fisheries and Wildlife Program, Skeena Region, Ministry of Forests, Lands and Natural Resource Operations. In the appealed decisions, the Regional Manager denied the Guides’ respective bids for angler day quotas on the Zymoetz River downstream of Limonite Creek (“Zymoetz II”) for the 2012/13 season. The Zymoetz II is a classified water under the Angling and Scientific Collection Regulation, B.C. Reg. 125/90 (the “Regulation”). Classified waters are designated in Schedule A of the Regulation. Schedule A also limits the number of guides on the particular water and the number of guided angler days available on that water during the specified – or “classified” – period. All of the Guides have taken clients to fish on the Zymoetz II in past years.

On April 1, 2012, amendments were made to Schedule A of the Regulation in relation to the classified period and the number of angling days available on the Zymoetz II. Previously, Schedule A only regulated the period from September 1 to October 31. Under the amendments, Schedule A was changed to regulate the “shoulder periods” (July – August and November – May), and reduce the previous guided angler days during the September to October period. Following those changes, the Regional Manager required the Guides to submit bids for the guided angler days available on the Zymoetz II during the new classified period. The Regional Manager rejected all of the bids, and the Guides appealed to the Board on a number of grounds.

In addition, the Guides applied for a stay of the Regional Manager’s decisions, pending the Board’s decisions on the merits of the appeals. The Guides believed that a stay would allow them to guide on the Zymoetz II as they had in previous years.

The Regional Manager opposed the stay applications. In addition, the Regional Manager submitted that, as a result of the amendments to the Regulation, the Guides’ previously approved operating plans for the Zymoetz II may violate the amended Regulation.

In determining whether the stay applications ought to be granted, the Board applied the three-part test set out in RJR-MacDonald Inc. v. Canada (Attorney General). With respect to the first stage of the test, the Board found that the Guides’ appeals raised serious issues to be decided, which were not frivolous, vexatious or pure questions of law.

Regarding the second part of the test, the Board found that denying a stay would result in irreparable harm to the Guides, particularly in relation to their business reputations, because clients had booked fishing trips with the Guides on the Zymoetz II several months before the Guides were notified of the changes to the Regulation and the requirement to submit bids.

Turning to the third part of the test, the Board found that there was no evidence that granting a stay, and delaying the operation of the decisions, would cause any harm, including in relation to fisheries conservation. Weighing the potential harm to the Guides’ interests if a stay was denied, against the absence of any identified harm if a stay was granted, the Board concluded that the balance of convenience favoured granting a stay of the decisions. However, the Board noted that granting the stay applications did not mean that the Guides were exempt from the Regulation. The Board cautioned that the Guides must comply with the law.

Accordingly, the stay applications were granted.