DFO’s Owner-Operator Policy Successfully Challenged

In basic terms, DFO’s Owner-Operator Policy ("OOP") requires holders of that type fishing licence to fish the licence themselves. The rationale for the rule is to promote small scale fishermen and to prevent larger companies for accumulating multiple licences. 

In the case of Robinson v Attorney General of Canada, 2020 FC 942, Mr. Robinson, who suffered from a medical condition making it impossible for him to stand for more than a few hours at a time without suffering from throbbing and swelling in his legs, and therefore unable to personally fish his licence, argued that the OOP violated his equality rights under the Charter. 

The Federal Court concluded that the OOP was itself compliant with the Charter, but that in enforcing it, DFO is required to consider an individual's charter rights, concluding that: 

[90]  I have concluded that the Decision engaged Mr. Robinson’s s 15(1) Charter equality rights as a person with a physical disability. This obliges the decision-maker to conduct the proportionate balancing stage of the Charter analysis, considering the relevant government objectives and asking how the Charter value at issue can best be protected in light of those government objectives. The decision-maker must consider how to balance the severity of the interference with the Charter protection (in the present case, Mr. Robinson being required to give up his chosen livelihood) against those objectives.

[91]  Charter protections must be affected as little as reasonably possible in light of the applicable statutory objectives.  This does not mean that the administrative decision maker must choose the option that limits the Charter protection least. However, if the decision-maker rejects a reasonably available option or avenue that would reduce the impact on the protected right, while still permitting sufficient furtherance of the relevant statutory objectives, such a decision would not represent the required proportionate balancing.

The case can be found here: https://www.canlii.org/en/ca/fct/doc/2020/2020fc942/2020fc942.html?searchUrlHash=AAAAAQAOIm1hcml0aW1lIGxhdyIAAAAAAQ&resultIndex=2

An article about the case can be found here: https://www.cbc.ca/news/canada/nova-scotia/disabled-lobster-fisherman-seeking-substitute-operator-1.4561642

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