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Fairness - Evidence - Ex Parte. Mowi Canada West Inc. v. Canada (Fisheries, Oceans and Coast Guard)
In Mowi Canada West Inc. v. Canada (Fisheries, Oceans and Coast Guard) (Fed CA, 2026) the Federal Court of Appeal dismissed an appeal from a JR dismissal, here brought against "a decision made by the Minister of Fisheries, Oceans and the Canadian Coast Guard (the Minister) on February 17, 2023, to refuse to re-issue aquaculture licenses to salmon farms operating in the Discovery Islands".
The court considers a procedural 'fairness' issue relating to the 'audi alteram partem rule' (hear the other side), here that the Minister relies on 'ex parte' evidence - ie. evidence that was not put before the appellant for their response:[38] More specifically, Mowi contends that the Minister failed to provide notice of the submissions that she received from non-DFO academics and environmental NGOs outside the formal consultation period, and of the non-CSAS list of studies attached as Annex #3 to the Decision Letter that was prepared three and a half weeks prior to the Decision. Not only was Mowi not apprised of this new information, but it was prejudiced by the lack of opportunity to respond to it. Mowi argues that the Federal Court erred in that respect when it stated that the non-CSAS science was not prejudicial because it did not change the case the operators had to meet, because they were aware of the existence of conflicting science. The test does not require a party to demonstrate actual prejudice, but a possibility of prejudice. Given that the basis for the Minister’s assertion of scientific uncertainty was the non-CSAS science, and the importance of this consideration to her decision, she was required to provide Mowi with notice of and an opportunity to respond to the non-CSAS science, much of which was sought out after the end of the formal consultation.
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[43] The gist of the appellant’s argument, however, is that it was not afforded the information to present its case fully and fairly because it did not know the case it had to meet. Mowi claims that the Minister relied on submissions that she received from non-DFO academics and environmental NGOs after the formal consultation period, as well as on a number of non-CSAS studies, without being given an opportunity to respond to that new information. This, in Mowi’s view, was clearly prejudicial to its interests because the Minister placed significant weight on that new information to conclude that there was scientific uncertainty as to the impact and potential harm posed by salmon farms in Discovery Islands, and decided on that basis to refuse to issue aquaculture licenses to the appellant.
[44] Both parties agree with the Federal Court that the governing case to determine whether the information at issue was prejudicial is the decision of this Court in Taseko Mines Limited v. Canada (Environment), 2019 FCA 320 [Taseko]. In that case, the Court rejected the appellant’s contention that a breach of procedural fairness occurs every time receipt of an ex parte statement is established, unless the Court is satisfied that there was no possibility of prejudice (at para. 54). It is sufficient that a "“possibility”" or "“likelihood of prejudice”" be shown for a breach of the audi alteram partem rule to apply (at para. 52). The Court also made it clear that the information at issue will not be "“new”", and therefore potentially prejudicial, merely because a party did not know the exact content that was conveyed or has not seen a specific document. For the information to be prejudicial, and therefore call for a fair opportunity by the opposing party to respond, it will have to be more than a variation of a previous submission; it will have to be substantially different from what was already known, and introduce a possibility of prejudice different from that which could reasonably have been addressed in prior submissions. As stated in Taseko at paragraph 64:[…] At the end of the day, Taseko had to first demonstrate there was significant and relevant information presented to the Minister of which it did not have prior knowledge. That involves consideration of whether such information was both “fresh” and “prejudicial” to its position, such that it could even potentially change the case it had to meet. […]
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