Decision Date:  April 17, 2013

Panel:  Tony Fogarassy, Ken Long, Les Gyug

Keywords: Wildlife Act – ss. 52(1); Angling and Scientific Collection Regulation – ss. 11(1.1), 11(1.2), Schedule A; angling guide; angler day quota

Stanley Doll and Dustin Kovacvich (the “Appellants”) 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 rejected the Appellants’ 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 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 Appellants 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, Schedule A of the Regulation was amended 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 requested that the Appellants and Mr. Douglas, as existing guides on the Zymoetz I, submit bids in the form of sealed tender and written proposals. After reviewing the bids, the Regional Manager awarded the entire 42 days to Mr. Douglas, and rejected the Appellants’ bids. Although the Appellants 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 Appellants appealed the decisions regarding their bids. They submitted that the Regional Manager’s decision-making process was unreasonable and unfair, and that he had no jurisdiction to award the new quota because there was no approved angling management plan in place for the Zymoetz I.

The decision to award the new quota to Mr. Douglas was not appealed.

The Regional Manager and Mr. Douglas submitted that the Board should confirm the Regional Manager’s decisions to reject the Appellants’ bids.

First, the Board considered whether there was an approved angling management plan in place for the Zymoetz I. The Board noted that both the Regulation and the Act refer to an angling “management plan”. Section 11(1.1)(a) of the Regulation enables a regional manager to allocate angler day quota only if a management plan applies to the classified water. Section 52(3) of the Act requires the publication of a plan for managing guiding for fish and angling. However, the Board found that there are no content requirements for such a plan specified in the Act or in any regulation under the Act. The Board also noted that there is no requirement for such a plan to be agreed to by a consensus of stakeholders, or for a plan to take into consideration particular factors or information. There is only a requirement for a published “plan for managing guiding for fish and angling on a stream”.

Applying that analysis to the facts in this case, the Board found that the Ministry of Environment had published a document in 2010 that constituted an angling management plan for sections of the Zymoetz River. While not specifically labeled “management plan”, the information in the 2010 document was clearly a “plan” for managing guiding and angling, and the information was published and widely available. Also, the 2010 document represented the culmination of years of information sharing, comment and review, and consultation of all stakeholders on the Zymoetz 1 and 2. Although it would have been helpful if the Regional Manager had clearly communicated to stakeholders that the essential components of an angling management plan for the Zymoetz 1 and 2 were in place as of April 23, 2010, that lack of communication did not undo the fact that a Zymoetz 1 and 2 angling management plan existed as of April 23, 2010.

Next, the Board considered whether the Regional Manager’s choice of process for allocating the new quota was reasonable. The Board concluded that the Regional Manager exercised his discretion reasonably when he decided to allocate the new quota by requiring interested parties to submit sealed tender and written proposals for the Zymoetz 1.

However, on the next and final issue, the hearing panel did not reach a consensus on either the proper framing of the issue or the findings on the issue. A majority decision was issued by two panel members, and a minority decision was issued by one panel member.

The majority considered whether the Regional Manager’s rejection of the Appellants’ bid proposals was reasonable. Before considering that issue, the majority found that although the parties had agreed to limit the evidence, and therefore the scope of the appeals, by excluding the contents of the sealed bid proposals, this evidence was nonetheless put before the Board at the hearing, and could be considered by the Board. Based on the evidence, the majority found that the Regional Manager’s decisions with respect to the Appellants’ bid proposals were unfair, because he allocated significant weight to a “background” check on each bidder, but the Ministry’s Application and the Ministry’s Disposition Policy did not indicate what “background” information would be considered. Further, the majority found that the Regional Manager failed to explain how Mr. Kovacvich’s three warnings (two in 1992, one in 2007) and two ticketed offences (both in 2007) resulted in a background score of zero, or how Mr. Doll’s licence suspension in 2004 also resulted in a score of zero. The Regional Manager was vague as to the method of scoring the background information. The majority also concluded that the Regional Manger’s scoring of zero for each of the Appellants’ background check criteria was disproportionate to the acts committed and lacked any reasonable consideration of the passage of time or the nature of the item on the record (warning versus offence).

In terms of the appropriate remedy, the majority found that there was insufficient evidence to support an order that the Appellants should be awarded angler days on the Zymoetz 1. In the circumstances, the majority found that it was appropriate to direct the Regional Manager to start the sealed tender and written proposal process again for the 42 angler days, subject to certain directions.

The minority concluded that the majority had misconceived the final issue. The minority found that parties had reached an agreement to limit the scope of the appeals and the evidence before the Board, and therefore, the issue was properly stated as: If the allocation process chosen by the Regional Manager was reasonable, was the Regional Manager’s application of the process in preparing the bid and prospectus package reasonable? On that issue, the minority held that the Regional Manager’s application of the allocation process in preparing the bid and prospectus package was reasonable, and the appeals should be dismissed.

Pursuant to the decision of the majority of the hearing panel, the appeals were allowed.