Decision Date:  September 5, 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

Stanley Doll and Dustin Kovacvich (the “Applicants”) appealed two separate decisions issued by the Regional Manager, Recreational Fisheries and Wildlife Program, Skeena Region, Ministry of Forests, Lands and Natural Resource Operations. The Regional Manager denied the Applicants’ respective bids for a quota of 42 guided angler days on the Zymoetz River upstream of Limonite Creek (“Zymoetz I”) for the 2012/13 season. The Zymoetz I 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.

The Applicants are angling guides who have taken clients to fish on the Zymoetz I in past years. The Third Party, Mr. Douglas, is also an angling guide who has taken clients to fish on the Zymoetz I in past years, and he was the successful bidder for the quota of 42 guided angler days.

On April 1, 2012, amendments were made to Schedule A of the Regulation in relation to the classified period and the number of guided angler days available on the Zymoetz I. 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 – December), and reduce the quota to 100 days during the classified period. However, in the past few years, the previous quota of 250 days had not been fully allocated, as only 58 days had been allocated among the three guides. In those previous years, each guide had also acquired an additional 10 days under annual permits that were not part of the quota system. After the amendments to Schedule A, only 100 guided angler days were available to be allocated as quota, but this effectively resulted in 42 “new” days to be allocated, given that only 58 had been allocated in the past. No days were to be granted under annual permits, unlike in past years.

To allocate the new quota of 42 guided angler days, the Regional Manager required the Applicants and Mr. Douglas to submit bids. After reviewing the bids, the Regional Manager awarded the entire 42 days to Mr. Douglas, and rejected the Applicants’ bids. Although the Applicants were unsuccessful in bidding for the new quota, they retained their previous years’ quotas for the Zymoetz I, which were not part of the bidding process. The Applicants appealed the decisions regarding their bids. The decision to award the new quota to Mr. Douglas was not appealed.

After the appeals were filed, the Applicants requested for a stay of the Regional Manager’s decisions, pending the Board’s decisions on the merits of the appeals. The Applicants believed that a stay would allow them to guide on the Zymoetz I as they had in previous years.

The Regional Manager and Mr. Douglas opposed the stay applications.

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 Applicants’ appeals raised serious issues to be decided, including whether there was an approved angling management plan for the Zymoetz I, and whether the Regional Manager had failed to comply with the Regulation and failed to take into account relevant considerations. Consequently, the Board proceeded to consider the next part of the test.

Regarding the second part of the test, the Board found that denying a stay would not result in irreparable harm to the Applicants. Specifically, the Board found that, if a stay was denied, the Applicants would still be able to operate on the Zymoetz I within the limits of their previous quotas, which were not part of the bidding process. In addition, the Board found that if the Applicants booked clients for the 10 days they had under permits in previous years, knowing those days were not guaranteed for 2012, the Applicants chose to take a risk in accepting those bookings before the bidding process was completed. Further, those permits were not part of the appealed decisions, and therefore, were not part of stay applications.

Turning to the third part of the test, the Board weighed the potential harm to the Applicants, if a stay was denied, against any potential harm to the Regional Manager or Mr. Douglas if a stay was granted. The Board found that granting a stay, and delaying the operation of the appealed decisions, would not result in any harm to the fishery or the environment. The main effect of the Regional Manager’s decisions was to allocate quotas, or decline to allocate quotas, to angling guides who were using a public fishery resource. Based on the test set out in RJR-Macdonald, the Board held that the Regional Manager’s decisions were presumed, for the purposes of deciding the stay application, to be in the public interest, in that he intended to allocate the quota to the guide who proposed to make the best use of the resource, taking into account fish conservation and management concerns, and providing for the best financial return to the government. The Board concluded that any potential harm to the Applicants’ interests, if a stay was denied, did not outweigh the public interest in the continued application of the Regional Manager’s decisions, and therefore, the balance of convenience favoured denying a stay.

Accordingly, the stay applications were denied.