Date: 20190204  
Dockets: T-1710-16  
T-430-18  
T-744-18  
Citation: 2019 FC 143  
Ottawa, Ontario, February 4, 2019  
PRESENT: The Honourable Madam Justice Strickland  
BETWEEN:  
ALEXANDRA MORTON  
Applicant  
And  
MINISTER OF FISHERIES & OCEANS,  
MARINE HARVEST CANADA INC. AND  
CERMAQ CANADA LTD.  
Respondents  
Docket T-430-18  
AND BETWEEN:  
'NAMGIS FIRST NATION  
Applicant  
And  
MINISTER OF FISHERIES, OCEANS AND  
THE CANADIAN COAST GUARD, MARINE HARVEST CANADA INC. AND  
CERMAQ CANADA LTD.  
Respondents  
Page: 2  
Docket T-744-18  
AND BETWEEN:  
'NAMGIS FIRST NATION  
Applicant  
And  
MINISTER OF FISHERIES, OCEANS AND THE CANADIAN COAST GUARD,  
MARINE HARVEST INC.  
Respondents  
JUDGMENT AND REASONS  
TABLE OF CONTENTS  
Contents  
I.  
II.  
INTRODUCTION.............................................................................................................. 4  
THE PARTIES................................................................................................................... 5  
Ms. Morton....................................................................................................................... 5  
‘Namgis............................................................................................................................ 6  
Minister ............................................................................................................................ 7  
Marine Harvest Canada Inc.............................................................................................. 8  
Cermaq Canada Inc. ......................................................................................................... 8  
A.  
B.  
C.  
D.  
E.  
III. BACKGROUND ................................................................................................................ 8  
A.  
Legislation........................................................................................................................ 8  
Fisheries Act................................................................................................................. 8  
i)  
ii) Fishery (General) Regulations...................................................................................... 9  
iii) Pacific Aquaculture Regulations ................................................................................ 10  
Morton 2009................................................................................................................... 10  
Fish Farm Production Cycle........................................................................................... 11  
PRV and HSMI .............................................................................................................. 12  
Morton 2015................................................................................................................... 14  
Transfer licensing post-Morton 2015............................................................................. 18  
B.  
C.  
D.  
E.  
F.  
IV. THE PRV POLICY ......................................................................................................... 19  
A.  
Previous Decisions......................................................................................................... 20  
i)  
June July 2015 Decision.......................................................................................... 20  
ii) September 2015 Decision........................................................................................... 21  
Page: 3  
iii) June 2016 Decision..................................................................................................... 21  
iv) January 30, 2017 Decision.......................................................................................... 21  
v) March 9, 2018 Decision.............................................................................................. 22  
vi) June 28, 2018 Decision............................................................................................... 23  
Decision Under Review ................................................................................................. 24  
B.  
i)  
2015 CSAS Science Response ................................................................................... 25  
ii) January 30, 2017 RDG Memorandum........................................................................ 27  
iii) March 2018 Rapid Science Response ........................................................................ 29  
iv) June 2018 Rapid Science Response............................................................................ 36  
‘NAMGIS’ MOTION FOR AN INJUNCTION (T-430-18)......................................... 41  
V.  
VI. ISSUES.............................................................................................................................. 42  
VII. ANALYSIS ....................................................................................................................... 43  
A.  
Issue 1: Is the PRV Policy Decision Reasonable (T-1710-16 and T-430-18)?......... 43  
i)  
Preliminary Issue Rule 312 Motions (T-1710-16) .................................................. 43  
ii) Standard of Review .................................................................................................... 59  
iii) Was the Minister’s Interpretation of s 56 of the FGRs reasonable?........................... 62  
iv) Did the Minister derogate from the precautionary principle? .................................... 76  
v) Did the Minister fail to consider the health of wild salmon? ..................................... 86  
vi) Did the Minister act in bad faith (T-430-18)? .......................................................... 107  
Issue 2: Did the Minister breach the duty to consult with ‘Namgis concerning the  
B.  
PRV Policy Decision (T-430-18)? ........................................................................................ 137  
i) Summary of Parties’ Positions ................................................................................. 137  
ii) Standard of Review .................................................................................................. 139  
iii) Jurisprudence............................................................................................................ 140  
iv) Prior Consultation by DFO....................................................................................... 145  
v) Analysis........................................................................................................................ 156  
Issue 3: Was the decision to issue the Marine Harvest transfer licence reasonable  
C.  
(T-744-18)?............................................................................................................................. 169  
i) Did the Minister breach the duty to consult?............................................................ 170  
ii) Was the Swanson Island Transfer Licence issued in contravention of s 56 of the  
FGRs?................................................................................................................................ 171  
iii) Did the Minister breach the duty of procedural fairness? ........................................ 171  
iv) Minister’s Motion to Strike the Notice of Application............................................. 178  
v) Marine Harvest’s Motion to strike Drastil Affidavit #2........................................... 180  
Issue 4: Remedies ....................................................................................................... 181  
D.  
E.  
i)  
T-1710-18 ................................................................................................................. 182  
ii) T-430-18 ................................................................................................................... 183  
iii) T-744-18 ................................................................................................................... 185  
Issue 5: Costs............................................................................................................... 191  
i)  
T-1710-16 ................................................................................................................. 191  
ii) T-430-18 and T-744-18 ............................................................................................ 193  
Page: 4  
I.  
INTRODUCTION  
[1]  
The Fishery (General) Regulations, SOR/93-53 (“FGRs”), made pursuant to the  
Fisheries Act, RSC 1985, c14 (Fisheries Actor “Act”), form part of Canada’s fisheries  
management regime. The FGRs require the Minister of Fisheries (“Minister”) to issue a licence  
before live fish can be transferred into any fish habitat or fish rearing facility. The Minister may  
only issue such a licence if the conditions set out in s 56 of the FGRs are met. These three  
applications for judicial review all concern challenges to the Minister’s policy of issuing licences  
for transfers of live salmon into the marine environment without requiring screening for certain  
disease causing pathogens and diseases that affect salmon. Specifically, the Department of  
Fisheries and Oceans (“DFO”) has a policy of not testing for Piscine Orthoreovirus (“PRV”) or  
Heart and Skeletal Muscle Inflammation (“HSMI”) disease prior to issuing licences for the  
transfer of juvenile salmon from land based hatcheries into marine open-net pens as part of  
aquaculture operations, or as releases made as part of wild salmon enhancement programs (“PRV  
Policy” or “Policy”). DFO has reconsidered, but maintained, the PRV Policy on several  
occasions. The most recent reconsideration on July 28, 2018 is the decision under review in  
these matters (“PRV Policy Decision”).  
[2]  
Alexandra Morton (“Ms. Morton”), the Applicant in T-1710-16, and ‘Namgis First  
Nation (“‘Namgis”), the Applicant in T-430-18, both challenge the reasonableness of the PRV  
Policy Decision. ‘Namgis additionally claims that the Minister breached the duty to consult with  
‘Namgis concerning the Policy. ‘Namgis has also brought a second application for judicial  
review, T-744-18, in which it seeks to quash a specific transfer licence issued by DFO to a  
 
Page: 5  
salmon farm operator, Marine Harvest Canada Inc. (“Marine Harvest”), on the basis that the  
licence was issued in contravention of s 56 of the FGRs, the decision to issue it was  
unreasonable, the Minister breached the duty to consult with ‘Namgis prior to issuance of that  
licence, and that the Minister breached the duty of procedural fairness owed to ‘Namgis.  
[3]  
The three applications for judicial review were heard consecutively over five days in  
Vancouver, British Columbia (or “BC”). In addition, there were ten motions filed in the within  
applications that the Case Management Judge Prothonotary Aylen determined were to be dealt  
with by the Applications Judge.  
[4]  
Given the overlap of the facts and issues, I have addressed the three applications together  
in these reasons and have dealt with the various motions in the context of the application and  
subject matter within which each arises.  
II.  
THE PARTIES  
A. Ms. Morton  
[5]  
Ms. Morton is a biologist who, since 1984, has lived and worked in the Broughton  
Archipelago, which is located in the Queen Charlotte Strait between Vancouver Island and the  
mainland of British Columbia. This area has a high density of open-net aquaculture sites, or fish  
farms. Ms. Morton holds a long-standing concern with the potential impact of salmon farming  
on the marine ecosystem of coastal British Columbia, in particular, with the effect of aquaculture  
on the health of wild salmon. Ms. Morton is an advocate in this regard. She has previously been  
granted public interest standing in Morton v British Columbia (Agriculture and Lands), 2009  
   
Page: 6  
BCSC 136 (Morton 2009), which included a successful challenge of the provincial regulation  
of salmon farming in British Columbia. She was also granted standing, jointly with the  
Raincoast Research Society and the Pacific Wild Coast Salmon Society, in the Commission of  
Inquiry into the Decline of Sockeye Salmon in the Fraser River, the results of which are  
published in Canada, Commission of Inquiry into the Decline of Sockeye Salmon in the Fraser  
River, The Uncertain Future of Fraser River Sockeye (Ottawa: Public Works and Government  
Services Canada, 2012) (“Cohen Commission”), on the basis of a substantial and direct interest  
in the question of whether aquaculture is a cause of the decline of the Fraser River sockeye  
salmon, and the policies and procedures of DFO as they relate to aquaculture.  
[6]  
Additionally, Ms. Morton was the applicant in Morton v Canada (Fisheries and Oceans),  
2015 FC 575 (Morton 2015). While that decision is highly relevant to the current applications,  
it is sufficient to note here that Ms. Morton successfully challenged certain conditions of an  
aquaculture licence granted to Marine Harvest concerning the transfer of farmed fish. In Morton  
2015, Justice Rennie noted that Ms. Morton brought that proceeding in the public interest and  
that her standing was not contested. Similarly, Ms. Morton’s standing is not contested in her  
application for judicial review brought in T-1710-16.  
B. ‘Namgis  
[7]  
‘Namgis is a band under the Indian Act, RSC 1985, c I-5, and its members are “aboriginal  
People of Canada” within the meaning of s 35 of the Constitution Act, 1982, being Schedule B to  
the Canada Act, 1982 (UK), 1982, c 11 (Constitution Act, 1982).  
 
Page: 7  
Don Svanvik, the elected Chief Councillor of ‘Namgis (“Chief Svanvik”), provided an  
[8]  
affidavit affirmed on March 7, 2018 (“Svanvik Affidavit”), which was filed in both T-430-18  
and T-744-18. The Svanvik Affidavit describes, amongst other things, ‘Namgis’ history, culture  
and assertions of its Aboriginal rights and title.  
[9]  
‘Namgis claims that its traditional territory includes the Nimpkish and Kokish river  
watersheds on northern Vancouver Island in their entirety, as well as adjacent marine areas in  
and around Malcolm Island, Cormorant Island, Swanson Island, Hanson Island, Foster Island and  
the Plumber and Pearce Island Groups, its asserted territory. It considers the Nimpkish River on  
Vancouver Island to be situated within the core of its territory and to be of tremendous  
importance to the community.  
[10] ‘Namgis asserts Aboriginal rights and title throughout its asserted territory, including title  
to the lands, water, air, marine foreshore and seabed, as well as rights to fishing, hunting,  
gathering and stewardship. In particular, it asserts that wild Pacific salmon, including sockeye,  
chum, pink, Chinook and coho, are an integral aspect of ‘Namgis’ oral history and traditions,  
way of life, economy, culture, ceremonies, food and trade. Further, that wild Pacific salmon  
populations have significantly declined in ‘Namgis’ asserted territory.  
C. Minister  
[11] The Minister is responsible for the administration of the Fisheries Act. And, pursuant to  
that Act, the Minister has broad discretion to authorize and issue fishing licences, including  
aquaculture licences and fish transfer licences.  
 
Page: 8  
D. Marine Harvest Canada Inc.  
[12] Marine Harvest is engaged in the business of fish farming. It is one of four main salmon  
farming companies in British Columbia. As of November, 2017, it held 56 of the 119  
aquaculture licences issued by DFO authorizing the operation of an aquaculture facility in that  
province. All of Marine Harvest’s facilities are licenced to raise Atlantic salmon. Marine  
Harvest has twelve fish farms in the Broughton Archipelago area, including the site known as the  
Swanson Island facility.  
E. Cermaq Canada Inc.  
[13] Cermaq describes itself as the second largest salmon aquaculture producer in British  
Columbia, making up approximately 25% of the salmon aquaculture industry. It has 28  
fish-farming sites in British Columbia and approximately 20 operating fish farms. Each site  
holds a marine finfish aquaculture licence issued by DFO and permitting Cermaq to carry out  
aquaculture activities. Cermaq, together with Marine Harvest, make up approximately 82% of  
the British Columbia salmon aquaculture industry.  
III.  
BACKGROUND  
A. Legislation  
Fisheries Act  
[14] The Fisheries Act governs fisheries in Canada. Section 7 of the Fisheries Act gives the  
Minister broad discretion to issue fishing licences, including aquaculture licences:  
         
Page: 9  
7(1) Subject to subsection (2), the Minister may, in his absolute  
discretion, wherever the exclusive right of fishing does not already  
exist by law, issue or authorize to be issued leases and licences for  
fisheries or fishing, wherever situated or carried on.  
Fishery (General) Regulations  
[15] The FGRs establish a general operational framework for fisheries management. This  
includes the implementation of any licence conditions necessary for the proper management and  
control of fisheries, and the conservation and protection of fish, that are not inconsistent with the  
FRGs or other specified regulations, as set out in s 22(1) of the FGRs.  
[16] Part VIII of the FGRs governs the release of live fish into fish habitats or fish rearing  
facilities. Such transfers are prohibited without a licence:  
54 In this part, licence means a licence to release live fish into fish  
habitat or to transfer live fish to a fish rearing facility.  
55 (1) Subject to subsection (2), no person shall, unless authorized  
to do so under a licence,  
(a) release live fish into any fish habitat; or  
(b) transfer any live fish to any fish rearing facility.  
(2) Subsection (1) does not apply in respect of fish that is  
immediately returned to the waters in which it was caught.  
[17] Pursuant to s 56, the Minister may issue a licence if three specified conditions are met:  
56 The Minister may issue a licence if  
 
Page: 10  
(a) the release or transfer of the fish would be in keeping  
with the proper management and control of fisheries;  
(b) the fish do not have any disease or disease agent that  
may be harmful to the protection and conservation of fish;  
and  
(c) the release or transfer of the fish will not have an  
adverse effect on the stock size of fish or the genetic  
characteristics of fish or fish stocks.  
[18] Central to the applications before me is the question of whether the Minister’s  
interpretation of s 56 is reasonable.  
Pacific Aquaculture Regulations  
[19] Pursuant to s 3(1) of the Pacific Aquaculture Regulations, SOR/2010-270 (“PARs”), the  
Minister may issue an aquaculture licence authorizing a person to engage in aquaculture and  
other prescribed activities. Such activities are prohibited unless authorized by licence. And, for  
the proper management and control of fisheries and the conservation and protection of fish, the  
Minister, in addition to the conditions respecting the matters set out in s 22(1) of the FGRs, may  
specify conditions in an aquaculture licence as set out in s 4 of the PARs.  
B. Morton 2009  
[20] In Morton 2009, the British Columbia Supreme Court held that fish farming in British  
Columbia is a fishery that falls under exclusive federal jurisdiction pursuant to s 91(12) of the  
Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, Appendix II, No 5. As a  
   
Page: 11  
result of that decision, and as discussed further below, in 2010 DFO assumed regulatory control  
over the management of aquaculture.  
C. Fish Farm Production Cycle  
[21] Farmed salmon start life in hatcheries. Eggs and milt are collected from adult broodstock  
salmon. The fertilized eggs are incubated for 7 to 8 weeks in freshwater land-based hatcheries.  
Upon hatching, the fish are called alevin. Once their yolk sacs are absorbed, they are referred to  
as fry and, for the next year, they are raised in tanks within the hatchery. Once the young salmon  
are ready to enter salt water, they are referred to as smolts.  
[22] Prior to transferring smolts from a freshwater hatchery to a marine (ocean) fish-farm site,  
the holder of the relevant aquaculture licence must apply for and be granted a transfer licence  
issued in accordance with s 56 of the FGRs. The most common type of fish farms in British  
Columbia are open-net farms in which the fish are contained in a net or cage suspended in the  
ocean and through which ocean water passes freely.  
[23] The smolts remain in the marine fish farms until they are ready to be harvested,  
approximately 2 years for Atlantic salmon and 18 months for Chinook salmon.  
[24] The number of salmon grown at such a farm during a typical production cycle can range  
from 200,000 to 650,000 fish. There are currently 116 licenced marine finfish farms in British  
Columbia, of which 80 are active, meaning that at any given time there are between 16 and 52  
million farmed fish in BC waters. There are four main salmon farming companies including  
 
Page: 12  
Marine Harvest and Cermaq. Atlantic salmon is the main species of farmed salmon produced in  
BC, with a smaller number of farm-grown Chinook salmon. There are currently 28 land-based  
licenced hatcheries.  
[25] The transfer of smolts occurs not only in aquaculture, but also in the context of salmon  
enhancement. In salmon enhancement, fish are raised in land-based hatcheries until the smolt  
stage and are then released into the natural marine environment to mature, at which point they  
become part of the wild salmon population.  
[26] The Salmon Enhancement Program (“SEP”) is licensed by DFO. There are currently 132  
SEP licences to grow Pacific salmon for release, 18 are DFO operated hatcheries, 99 are  
community hatcheries and 15 are classroom facilities.  
D. PRV and HSMI  
[27] As will be discussed below, PRV and HSMI are very topical issues that are the subject of  
a growing body of rapidly evolving scientific inquiry. What is not controversial is that PRV is a  
highly infectious virus. It was first recognized in Norway in 2010 and is now known to be  
present in Norway, the United Kingdom, Ireland, Chile, the United States and Canada. It was  
first detected on the west coast of North America in farmed Atlantic salmon through audit  
samples that were conducted in 2010. While some scientists believe that PRV in British  
Columbia first diverged from the Norwegian strain of PRV (“Norweigan-PRV”) in about 2007,  
DFO’s current view is that recent testing of tissue samples archived from 1987 to 1994 indicates  
that a North Pacific variant of PRV (“BC-PRV”) has been present in salmonids on the Pacific  
 
Page: 13  
coast of North America for a much longer time. PRV is now found in both farmed and wild  
salmon in British Columbia as well as other species of fish.  
[28] HSMI is an infectious disease. According to DFO, it was described for the first time in  
farmed Atlantic salmon in 1999 in Norway, where it has emerged as a production concern for  
Norwegian salmon aquaculture. In Norway, HSMI is currently among the top four most  
common salmonid aquaculture diseases, the number of outbreaks occurring each year increasing  
from 54 to 142 between 2004 and 2012.  
[29] In Norway, HSMI is characterized by mortality that ranges from negligible up to 20%  
and morbidity as high as 100% within affected populations. In Norwegian fish farms, clinical  
signs of HSMI usually occur 59 months after sea transfer and include abnormal swimming  
behaviour, loss of appetite or anorexia, and loss of condition. HSMI has now been reported in  
farmed Atlantic salmon in Scotland, Chile and Norway. In 2017, it was also confirmed in one  
Atlantic salmon farm in British Columbia by a study of tissue samples that were collected in  
20132014.  
[30] More controversial is the link between PRV, HSMI, and other diseases. In 2017, a  
Norwegian study found PRV to be the cause of HSMI in Atlantic salmon. However, in Canada,  
a PRV challenge study conducted in 2016 concluded that the BC-PRV strain, while transmissible  
or infectious, was of low pathogenicity to Chinook, sockeye and Atlantic salmon. That is, while  
experimentally infected fish may carry large BC-PRV virus loads, the virus does not cause  
disease or mortality in those species. No other disease agent has been identified as the cause of  
Page: 14  
HSMI in British Columbia. PRV has also been associated with other diseases, including  
jaundice.  
[31] The heart of Ms. Morton’s and ‘Namgis’ applications are that the DFO’s policy of not  
testing for PRV puts wild Pacific salmon at risk.  
E. Morton 2015  
[32] Ms. Morton, in Morton 2015, raised the question of whether certain licence conditions  
contained in an aquaculture licence granted to Marine Harvest for its operations at Shelter Bay,  
British Columbia, met, or were consistent with, s 56 of the FGRs.  
[33] Condition 3.1 of the subject licence concerned the transfer of fish:  
3. Transfer of Fish  
3.1 The licence holder may transfer to this facility live Atlantic or  
Pacific salmonids from a facility possessing a valid aquaculture  
licence issued pursuant to section 3 of the Pacific Aquaculture  
Regulations between Fish Health zones described in Appendix VI,  
provided transfers occur within the same salmonid transfer zone as  
outlined in Appendix II and provided:  
(a)…  
(b) the licence holder has obtained written and signed  
confirmation, executed by the sources facility’s veterinarian or fish  
health staff, that, in their professional judgment:  
(i) mortalities, excluding eggs, in any stock reared at the  
source facility have not exceeded 1% per day due to any  
infectious diseases, for any four consecutive day period  
during the rearing period;  
(ii) the stock to be moved from the source facility shows no  
signs of clinical disease requiring treatment; and  
 
Page: 15  
(iii) no stock at the source facility is known to have had any  
diseases listed in Appendix IV; or  
(iv) where conditions 3.1(b)(i) and/or 3.1(b)(iii) cannot be  
met transfer may still occur if the facility veterinarian has  
conducted a risk assessment of facility fish health records,  
review of diagnostic reports, evaluation of stock  
compartmentalization, and related biosecurity measures and  
deemed the transfer to be low risk.  
[34] Justice Rennie, then of this Court, found that condition 3.1 of the licence authorizing the  
transfer of fish was derived from Part VIII of the FGRs and that the terms of the licence were  
required to comply with s 56 of those regulations.  
[35] Further, that the question of whether the licence satisfied its governing regulatory  
provisions could be resolved by analogy to the first principles of statutory interpretation. That is,  
just as a regulation that is inconsistent with the enabling substantive statutory provisions cannot  
carry out the purposes of the act, nor can any condition of a licence that conflicts with  
substantive regulatory provisions carry out the purposes of the regulatory scheme. In that regard,  
s 22(1) of the FGRs stipulated that a licence condition could not conflict with the FGRs or grant  
that which the FGRs excluded. Justice Rennie concluded that:  
[56] The plain meaning of the language “any disease or disease  
agent” suggests that the phrase is not limited to only those few  
diseases prescribed by policy as listed in Appendix IV. The  
Minister’s legal duty under section 56 extends to any disease or  
disease agent that “may be harmful to the protection and  
conservation of fish.” Interpreting section 56(b) in this manner is  
consistent with a purposive and contextual approach, as it supports  
conservation of the resource, the Minister’s primary obligation  
under the Fisheries Act: R v Marshall, [1999] 3 SCR 533 at para  
40. It is also consistent with the precautionary approach which the  
Minister says was taken into account. I will address this issue  
further in Part VII of these reasons.  
Page: 16  
[57] Again, a purposive, contextual and plain meaning analysis of  
the language “that may be harmful” suggests this phrase means any  
disease or disease agent that might be harmful to the protection and  
conservation of fish. This interpretive approach is again consistent  
with the precautionary principle, the essence of which is that where  
a risk of serious or irreversible harm exists, a lack of scientific  
certainty should not be used as a reason for postponing or failing to  
take reasonable and cost-effective conservation and management  
measures to address that risk (Cohen Commission vol 3 at 20). I  
note, in this regard, that although HSMI was first identified in  
1999, it was in Scotland in 2005 and subsequently in Chile, it  
would be an unreasonable inference to draw from the evidence that  
it will not appear in farmed Atlantic salmon on the Pacific Coast.  
(emphasis original)  
[36] Justice Rennie then found that conditions 3.1(b)(i) and (iii) were reasonably consistent  
with s 56(b) of the FGRs. Condition 3.1(b)(i) established clear, objective criteria governing  
transfers that were demonstrably linked to subsection 56(b) of the FGRs. Condition 3.1(b)(iii)  
precluded transfers where stock was known to have had a listed disease that could severely  
impact fisheries. That is, condition 3.1(b)(iii) was a reasonable articulation of the s 56(b)  
requirement that a fish transfer occur only where the fish do not have any disease or disease  
agent that may be harmful to the protection and conservation of fish.  
[37] However, conditions 3.1(b)(ii) and (iv) were inconsistent with s 56(b) of the FGRs.  
Condition 3.1(b)(ii), by allowing a licence holder to transfer fish if the stock “shows no signs of  
clinical disease requiring treatment”, maintained a lower standard than prescribed by, and  
contradicted the plain wording of s 56(b), which stipulates that no transfer can take place if the  
fish have “any disease or disease agent” that may be harmful. Justice Rennie held that showing  
no sign of disease was a lower threshold than the regulatory scheme demanded, being that the  
Page: 17  
fish “do not have any disease or disease agent.Further, the FGRs are directed to the health of  
the resource generally, and not the health of the farmed product or stock. As drafted, condition  
3.1(b)(iii) was unclear as to whether or how Marine Harvest’s staff were to determine if the fish  
had any disease or disease agent. Justice Rennie found that there was no nexus or scientific  
linkage between the regulatory requirement (directed to the protection of the resource) and the  
licence condition (directed to the stock).  
[38] As to condition 3.1(b)(iv), this allowed the licence holder to override conditions 3.1(b)(i)  
and 3.1(b)(iii) if the facility veterinarian conducted a risk assessment and considered the transfer  
to be “low risk.Justice Rennie found that this circumvented s 56(b) of the FGRs and the  
regulatory requirement imposed on the Minister to allow transfers only where fish “do not have  
any disease or disease agent that may be harmful to the protection and conservation of fish.”  
Effectively, the condition circumvented the s 56(b) regulatory requirements and licensed Marine  
Harvest to transfer through less rigorous conditions than required by law. Further, the Minister  
improperly sub-delegated to Marine Harvest, the licensee, the ultimate determination as to  
whether a transfer was permissible.  
[39] Additionally, conditions 3.1(b)(ii) and (iv) were inconsistent with subsection 56(b) of the  
FGRs in light of the precautionary principle. Justice Rennie found that s 56(b), properly  
construed, embodied the precautionary principle:  
[97] In my view, subsection 56(b) of the FGRs, properly  
construed, embodies the precautionary principle. First, subsection  
56(b) prohibits the Minister from issuing a transfer licence if  
disease or disease agents are present that “may be harmful to the  
protection and conservation of fish.” The phrase “may be harmful”  
does not require scientific certainty, and indeed does not require  
Page: 18  
that harm even be the likely consequence of the transfer. Similarly,  
the scope of “any disease or disease agent” in subsection 56(b)  
should not be interpreted as requiring a unanimous scientific  
consensus that a disease agent (e.g., PRV) is the cause of the  
disease (e.g., HSMI).  
[98] The consequence of interpreting subsection 56(b) consistently  
with the precautionary principle is that the licence conditions must  
also reflect the precautionary principle. As the licence conditions  
cannot derogate from or be inconsistent with subsection 56(b), they  
therefore cannot derogate from the precautionary principle. As  
noted earlier, the Minister did not attempt to justify that licence  
condition 3.1(b)(iv) was consistent with the precautionary  
principle, but confined his argument in this respect to licence  
conditions 3.1(b)(i), (ii) and (iii).  
[99] In my view, the Minister’s argument cannot stand. For the  
reasons given, conditions 3.1(b)(ii) and (iv) are inconsistent with  
section 56(b) and thus with the precautionary principle. The  
conditions dilute the requirements of subsection 56(b), a regulation  
designed to anticipate and prevent harm even in the absence of  
scientific certainty that such harm will in fact occur.  
[40] Accordingly, conditions 3.1(b)(ii) and (iv) were found to be of no force and effect and  
were severed from the aquaculture licence issued to Marine Harvest.  
[41] In June 2016, the Minister filed a Notice of Appeal of Justice Rennie’s decision  
in Morton 2015. The appeal was discontinued in January 2017.  
F. Transfer licensing post-Morton 2015  
[42] Justice Rennie suspended his judgment for four months from the date of its issuance. On  
September 8, 2015, in conjunction with the end of that period, the Minister issued amended  
aquaculture licences. These included condition 3.3:  
 
Page: 19  
3.3 From September 8, 2015 until further notice, the licence holder  
may not carry out transfers pursuant to section 3.1 herein. During  
that period the licence holder must apply to the BC Introductions  
and Transfers Committee to obtain an authorization to transfer fish.  
[43] DFO’s evidence is that condition 3.3 is still in place and that DFO intends to continue the  
requirement that marine finfish aquaculture licence holders obtain a separate authorization  
through the BC Introductions and Transfers Committee (“ITC”) to move fish into and between  
farm sites, and plans to make this requirement a standard licence condition when aquaculture  
licences are renewed in 2022 and beyond.  
[44] Currently, for every transfer between land based hatcheries and marine salmon farm sites,  
and between marine salmon farm sites, aquaculture operators are required to submit an  
Introduction and Transfer Licence Application, as well as a Fish Health Attestation Form  
executed by the source facility’s veterinarian, fish health staff or facility manager, which,  
together with other information, are assessed by the ITC. The ITC then makes a  
recommendation to the DFO Regional Manager, Aquaculture Programs, that the application be  
allowed or allowed with additional licence conditions. The DFO Regional Manager, as the  
Minister’s Delegate, then considers the recommendation and decides whether to issue a transfer  
licence on behalf of the Minister, under the authority of the FGRs.  
IV.  
THE PRV POLICY  
[45] As noted above, the Minister has effected a PRV Policy that allows transfer licences to be  
issued under s 56 of the FGRs without testing the fish to be transferred for PRV and HSMI. The  
 
Page: 20  
Policy appears to be unwritten, and it is unclear from the record when the PRV Policy first came  
into effect. However, the record does indicate that the Minister, through his Delegate, has made  
six decisions to continue the PRV Policy between June or July 2015 and the most recent decision  
made on June 28, 2018.  
A. Previous Decisions  
[46] It is useful to summarize the previous PRV Policy decisions and the materials upon  
which they are based on as contained in the certified tribunal records (“CTR”), specifically the  
Further Further Amended Rule 318 Certified Tribunal Record of the Minister of Fisheries and  
Oceans dated June 29, 2018 in T-1710-16 and the Amended Rule 318 Certified Tribunal Record  
filed in T-430-18, as they illustrate that the Delegate’s decisions to continue the Policy are, in  
effect, a series on ongoing decisions culminating in the June 28, 2018 PRV Policy Decision,  
which is under review in these applications.  
i)  
June July 2015 Decision  
There is no written record of this decision.  
The CTR contains,  
a)  
b)  
c)  
May 2014 DFO web statement regarding PRV;  
June 26, 2015 internal email regarding a statement concerning PRV;  
DFO Publication, “Regulating and Monitoring British Columbia’s Marine Finfish  
Aquaculture Facilities 2011–2014”.  
   
Page: 21  
ii)  
September 2015 Decision  
There is no written record of this decision.  
The CTR contains,  
a)  
A final draft for endorsements, with tracked changes, of “Assessment of the  
Occurrences, Distribution and Potential Impacts of Piscine Reovirus on the West  
Coast of North America”, prepared by the the Canadian Science Advisory Secretariat  
(“CSAS”).  
iii)  
June 2016 Decision  
There is no written record of this decision.  
The CTR contains,  
a)  
b)  
June 2016 DFO web statement regarding PRV;  
September 11, 2015 (approved) Canadian Science Advisory Secretariat (“CSAS”),  
Science Response 2015/037, “Assessment of the Occurrence, Distribution and  
Potential Impacts of Piscine Revirus on the West Coast of North America” (“2015  
CSAS Science Response”);  
c)  
DFO publication “Regulating and Monitoring British Columbia’s Marine Finfish  
Aquaculture Facilities 20112014.  
iv)  
January 30, 2017 Decision  
Decision - Memorandum for the Regional Director General, Management Approach to PRV  
and HSMI for Fish Transfers in British Columbia (For Decision), which was approved on  
January 30, 2017 (“RDG Memorandum”).  
The CTR contains,  
a)  
2015 CSAS Science Response (an attachment to the RDG Memorandum);  
     
Page: 22  
b)  
c)  
Science Overview of PRV and HSMI (DFO) (an attachment to the RDG  
Memorandum);  
The Minister of Fisheries and Oceans’ (Minister) Interpretation of Section 56 of the  
Fishery (General) Regulations (FGRs) (“Minister’s Interpretation”) (an attachment  
to the RDG Memorandum);  
d)  
e)  
Mortality Events Reported in BC 20112015 (an attachment to the RDG  
Memorandum);  
Draft DFO web statement “Piscine Orthoreovirus (PRV) and Heart and Skeletal  
Muscle Inflammation (HSMI)”.  
v)  
March 9, 2018 Decision  
Decision - mail dated March 9, 2018 from Allison Webb, Regional Director General (“RDG”),  
confirming that DFO will continue the PRV Policy.  
The CTR contains,  
a)  
March 5, 2018 Centre for Science Advice Pacific FPP non-CSAS Request for Rapid  
Science Response (March 2018 Rapid Science Response” or “March RSR”);  
b)  
c)  
d)  
e)  
f)  
RDG Memorandum;  
2015 CSAS Science Response;  
Science Overview of PRV and HSMI (DFO);  
Minister’s Interpretation;  
Mortality Events Reported in BC 20112015;  
g)  
February 19, 2018 Draft DFO Internet Posting “Piscine Orthorevirus (PRV) and  
Heart and Skeletal Muscle Inflammation (HSMI)”;  
 
Page: 23  
h)  
i)  
Table of 2016 BC Mortality events;  
Tables of aquaculture reporting compliance 20112017 (DFO).  
vi)  
June 28, 2018 Decision  
Decision - email dated June 28, 2018 from Allison Webb, RDG, confirming that DFO will  
continue the PRV Policy.  
The CTR contains,  
a)  
June 27, 2018 (approved) Centre for Science Advice Pacific FPP non-CSAS  
Request for Rapid Science Response (“June 2018 Rapid Science Response” or “June  
RSR”);  
b)  
c)  
d)  
e)  
f)  
March 2018 Rapid Science Response;  
RDG Memorandum;  
2015 CSAS Science Response;  
Science Overview of PRV and HSMI (DFO);  
Minister’s Interpretation;  
g)  
h)  
Mortality Events Reported in BC 2011- 2015;  
February 19, 2018 Draft DFO Internet Posting “Piscine Orthorevirus (PRV) and  
Heart and Skeletal Muscle Inflammation (HSMI)”;  
i)  
Table of 2016 BC Mortality events;  
j)  
Tables of aquaculture reporting compliance 20112017 (DFO);  
k)  
Document entitled “Regulating and Monitoring British Columbia’s Marine Finfish  
Aquaculture Facilities 2017(DFO).  
 
Page: 24  
B. Decision Under Review  
[47] The June 28, 2018 email from Allison Webb, the RDG and Minister’s Delegate, to two  
other DFO members, Melanie McNabb and Lauren Lavigne, comprises the decision under  
review. It states as follows:  
Melanie and Lauren Based on the most recent advice received  
from Science Branch (Centre for Science and Advice Pacific) on  
June 27, 2018 which I have read as well as considering the  
background documents here, DFO will continue the policy  
approach explained in the briefing note signed on January 30, 2017  
that explains that the Department will not test for PRV and HSMI  
prior to transfers of fish. This is germane to what information is  
considered before making decisions regarding s. 56 of the FGR.  
DFO will continue to actively monitor this area and as new  
information becomes available consider whether changes will be  
required in our current management approaches.  
[48] The background documents attached to this email are those contained in the Amended  
Rule 318 CTR for T-430-18, which documents are also found in the Further Further Amended  
CTR for T-1710-16.  
[49] It is necessary to devote some time to describing certain of these documents because they  
set out the science background utilized by DFO in confirming the PRV Policy, and demonstrate  
how DFO has responded to new science concerning PRV and HSMI.  
 
Page: 25  
i)  
2015 CSAS Science Response  
[50] The Canadian Science Advisory Secretariat, or CSAS, is a DFO entity that responds to  
requests for science advice or questions. This can be done by way of a full Science Peer Review  
Process, which produces a Science Response summarizing key research findings and which can  
take up to 6 months to produce, or by a Science Response Process if a faster response is needed.  
[51] The 2015 CSAS Science Response notes that concerns have been raised regarding the  
presence of PRV in farmed fish on the Pacific coast and the potential impacts to the health of  
wild salmonid populations arising from the transfer of hatchery reared fish that carry this virus to  
marine-based aquaculture facilities. As the advice sought was required within four weeks, a  
CSAS Science Response was utilized.  
[52] The report is, in essence, a technical review of data and studies from a variety of sources  
which are identified therein. There were four contributors, three from DFO and one (Dr. Gary  
Marty) from the British Columbia Ministry of Agriculture, and three reviewers, two from the US  
Geological Survey, Western Fisheries Research Centre and one from the Alaska Department of  
Fish and Game, Commercial Fisheries Division. It was approved by Carmel Lowe, Regional  
Director, Science Branch, Pacific Region, DFO, on September 11, 2015.  
[53] Based on the review, it finds, amongst other things, that,  
-
BC-PRV occurs in wild salmonids in western Canada and the US and there is  
uncertainty about the prevalence of the virus among species and life-history stages  
of wild Pacific salmon and among farmed salmon in western Canada;  
 
Page: 26  
controlled laboratory experiments in Chinook, sockeye and Atlantic salmon  
-
provide good evidence that infection with BC-PRV does not cause disease in  
those species and that the absence of associated mortality or pathology in infected  
fish exhibiting high viral loads also indicates that BC-PRV is of low pathogenicity  
although, apart from an absence of disease, the challenges resulted in similar  
infectivity and distribution in host tissues as described for Norwegian PRV  
obtained from fish with HSMI (the report notes that in Norway many challenge  
studies and diagnostic testing of samples for HSMI outbreaks have provided  
evidence towards an association between PRV and HSMI);  
-
diagnosis of HSMI is by combination of clinical signs (usually occurring 59  
months after sea transfer and including abnormal swimming behaviour, anorexia  
and up to 20% mortality) confirmed by histological examination of tissues. Based  
on the current state of knowledge, there have been no reports of HSMI in farmed  
or wild fish in British Columbia, Washington or Alaska. While idiopathic  
cardiomyopathy (heart muscle disease of an unknown cause) had previously been  
reported in British Columbia farmed salmon, including HSMI-like lesions first  
diagnosed as the probable cause of death nine years earlier (referencing the Cohen  
Commission), because skeletal muscle was not sampled as part of the DFO Audit  
Program until 2013, it has only been after that time that it has been determined  
that a few cases of idiopathic cardiomyopathy in British Columbia match the  
pattern of microscopic lesions associated with HSMI in Norway. A retrospective  
analysis of test results for PRV of Audit Program samples from 2009 found PRV  
to be common and not associated with any cause of mortality, including idiopathic  
cardiomyopathy. In summary, there is no combined clinical and histological  
evidence for the occurrence of HSMI in farmed salmonids in British Columbia.  
There is a low prevalence of idiopathic cardiomyopathies of unknown cause(s) in  
audit samples, with 0.2% of fish examined since 2014 having signs of significant  
inflammations of both heart and skeletal muscles. If it is assumed that those  
lesions are caused by an infectious agent, the low percentage of infected fish  
suggests that it is not a highly infectious disease;  
-
as to an evaluation of the adequacy of current farm-based and wild monitoring  
practices to detect HSMI or other diseases possibly associated with PRV, this  
describes fish health auditing and reporting measures for farmed fish, and states  
that diagnostic evaluations of farmed salmon conducted by aquaculture  
companies, the Province and DFO are highly likely to have found evidence of  
HSMI in BC assuming a similar presentation as seen in Norway (clinical  
symptoms). As all of the aquaculture companies in BC also farm Atlantic salmon  
in Norway where HSMI is common, it is unlikely that their veterinarians, other  
fish health staff or managers would not be aware of the clinical signs of HSMI. In  
summary, assuming a similar clinical presentation of HSMI in BC farmed salmon  
as seen in Norway, company veterinarians and or government audit programs  
would be expected to have identified HSMI if it were present;  
Page: 27  
-
-
the above information is then summarized as factors that should be considered in  
any evaluation of risk posed to wild Pacific salmon, as well as key uncertainties  
including that the role that PRV plays in the development of HSMI in Norway  
remains unclear;  
based on the information available, it concludes that the ubiquitous nature of  
PRV, its apparent long-time presence in wild Pacific salmonid stocks, and the lack  
of a clear association with disease in laboratory challenge trials suggests a low  
likelihood that the presence of the virus in any life stage of farmed Atlantic and  
Pacific salmon would have a significant impact on wild Pacific salmon  
populations.  
ii)  
January 30, 2017 RDG Memorandum  
[54] In its summary, the 2017 RDG Memorandum notes that research confirming the presence  
of HSMI in one Atlantic salmon farm in British Columbia in 2013/2014 would be published  
shortly (this reference is to the study ultimately published as Di Cicco et al (2017), Heart and  
Skeletal Muscle Inflammation (HSMI) disease diagnosed on a British Columbia Salmon farm  
through a longitudinal farm study, PLoS ONE 12(2) = e01271471.doi=10.1371 (“Di Cicco  
2017”)). The Memorandum notes that this new research would document the development of  
HSMI at one marine salmon farm, resulting in low level mortality. Further, that information  
from DFO’s audit program, industry reports, and DFO scientists does not show elevated fish  
mortalities associated with disease in BC. Given the current science knowledge and the  
mortality reporting to date, the Memorandum recommends that DFO maintain its policy of not  
testing for PRV and HSMI prior to transfers of fish as PRV and HSMI are not of serious concern  
in BC.  
[55] The Background section of the document references the 2015 CSAS Science Response  
and summarizes the Minister’s Interpretation of s 56(b). Under Science Advice, it states that a  
 
Page: 28  
peer reviewed article in a top tier journal, PlosOne, confirming the presence of HSMI in one  
Atlantic salmon farm in BC, will be published within the next three weeks. That article will  
document the development of HSMI at that farm over an 11 month period resulting in a low  
level of mortality (<2%). That level of mortality is at the low end of estimates from outbreaks in  
Norwegian farms (020%) and, although the number of reported cases in Norway has increased  
over the years, this does not inform DFO of whether the severity of disease had increased or not.  
Further, while PRV is widely considered the leading cause of HSMI, its role in the development  
of HSMI and other diseases is uncertain. There are a number of strains of the PRV virus and it is  
not yet known if some are more prone to result in disease, if species susceptibility differs among  
strains and/or if other factors are involved in disease development. PRV variants have been  
associated with diseases in Atlantic and coho salmon as well as rainbow trout. PVR has been  
documented in aquaculture and wild fish on both the Atlantic and Pacific coasts; challenge trials  
in BC have demonstrated that despite infection with loads of PRV similar to or higher than PRV  
loads reported in Atlantic salmon with HSMI lesions in Norway, Atlantic, sockeye and Chinook  
salmon have failed to exhibit any symptoms of the disease. And, while PRV is found in wild  
Pacific fish, there have been no reports of HSMI in wild fish in BC, Washington or Alaska. The  
Memorandum notes that as PRV and HSMI are globally active areas of scientific research, new  
findings on the virus, the disease and the links between them are emerging at an incredibly rapid  
pace.  
[56] It recommends as follows:  
Page: 29  
ADVICE AND RECOMMENDATIONS TO REGIONAL  
DIRECTOR GENERAL  
Given the analysis set out above, it is recommended that DFO  
maintain its policy of not testing for PRV and HSMI prior to  
transfer of fish in that:  
1.  
Experimental exposures of the strain of PRV  
present in BC to Pacific and Atlantic salmon in BC  
have failed to induce disease or mortality.  
2.  
3.  
The current evidence is that HSMI causes very low  
mortality in fish farms in BC.  
Transfers of fish with low potential to cause  
mortality do not harm the protection and  
conservation of fish at a population level and  
can be authorized as per the Minister’s  
interpretation of s 56(b) of the FGR.  
[57] The RDG Memorandum, authored by Andrew Thomson, concludes by stating that DFO  
is committed to protecting and conserving both wild and farmed fish, is actively reviewing key  
new findings and is prepared to make changes as necessary. The recommendation was accepted  
by Rebecca Reid, RDG, Pacific Region, on January 30, 2017.  
iii)  
March 2018 Rapid Science Response  
[58] This document was generated as an emergency response to a December 27, 2017 request  
from Cory Jackson and Allison Webb and was required by February 2018. The responders were  
Kyle Garver, Mark Polinski and Stewart Johnson, of DFO Science, a branch of DFO that it  
describes as conducting research on and contributing to global scholarship on PRV and HSMI.  
The document states that it does not constitute delivery of peer-reviewed Science advice but is  
intended as a rapid response to an immediate requirement for Science input. It was reviewed by  
 
Page: 30  
Lesley MacDonald of the Centre for Science Advice Pacific Region and was approved by  
Dr. Carmel Lowe, Regional Director Science Pacific Region, on March 5, 2018.  
[59] The March RSR provides background information, including that DFO does not require  
any pre-transfer testing for specific diseases or disease agents, such as PRV, before fish are  
transferred from hatcheries to marine aquaculture sites. However, as part of the salmon transfer  
application review, DFO assesses overall fish health at the source facility by examining company  
fish health records, any fish health and/or mortality reporting submitted as part of the aquaculture  
licence condition requirements, and results from DFO farm audits. The March RSR states that  
DFO does not test for PRV as part of its routine fish farm audits as experimental exposures of the  
strain of PRV present in BC to Pacific and Atlantic salmon have failed to induce disease or  
mortality and the current evidence is that HSMI causes very low mortality in BC fish farms.  
However, research into PRV and HSMI is an active area of scholarship worldwide. Given this,  
and the profile of PRV and HSMI, it is important that DFO consider new science information as  
it becomes available. The March RSR states that it is a request for a review of recent  
publications/peer reviewed literature (within the last year) and for science advice regarding  
whether changes to DFO’s management approach should be considered as a result. The recent  
primary peer reviewed literature on PRV includes six listed papers. One of these is Di Cicco  
2017.  
[60] The review was requested by Aquaculture Management Division of DFO to ensure  
DFO’s testing and fish health management approach are informed by the latest scientific  
evidence and to answer two questions:  
Page: 31  
Does this recently published literature alter the scientific  
perspective on the role of PRV in the development of disease? If  
so, how?  
How are these studies and any other recent studies on PRV and  
HSMI relevant (or not relevant) to the testing and management of  
PRV and HSMI in BC?  
[61] In answer to the first question, the March RSR references the uncertainty expressed in the  
2015 CSAS Science Response as to the relationship between PRV and HSMI and the subsequent  
study, Wessel et al (2017), Infection with Purified Piscine orthorevirus demonstrates a causal  
relationship with heart and skeletal muscle inflammation in Altantic Salmon, PLoS ONE 12(8),  
e0183781 (“Wessel 2017”), which used purified PRV as inoculum in an experimental challenge  
trial to confirm that PRV is the causal agent of HSMI. The March RSR states that by addressing  
(presumably meaning resolving) the question of whether PRV is the etiological agent of HSMI in  
Atlantic salmon, the PRV/HSMI research community has re-directed scientific endeavours to no  
longer evaluate what causes HSMI, but rather to understand how the disease is caused by PRV.  
As discussed in Wessel 2017, in Norway, HSMI has consistently been reproduced  
experimentally in Atlantic salmon after PRV exposure (three studies by different authors are  
footnoted in support of this), however, in Canadian PRV studies, HSMI had yet to be induced in  
experimentally infected fish (one study, Garver et al (2016), Piscine orthoreovirus from western  
North America is transmissible to Atlantic salmon and Sockeye salmon but fails to cause Heart  
and Skeletal Muscle Inflammation, PLoS ONE 11(1):e0146229 (“Garver 2016”), is cited in  
support of this). The March RSR states that the development of HSMI or lack thereof in  
laboratory fish with equally high PRV infections illustrates that PRV screening is currently not  
an informative diagnostic for disease development. Consequently, PRV research is underway to  
Page: 32  
better understand what factors are responsible for the altered disease scenarios, and what  
conditional requirements exacerbate non-virulent PRV infections into a HSMI disease state.  
This is summarized by the statement in the March RSR that Wessel 2017 provides evidence that  
PRV infection can directly cause HSMI in Atlantic salmon, yet that study acknowledges that it  
remains unclear as to why in many instances infections do not lead to disease. Further, that in  
developing the ability to purify PRV, Wessel 2017 also made it possible for the research  
community to characterize potential PRV strain differences, host differences, and environmental  
factors.  
[62] The March RSR then discusses the HSMI experience in Norway, noting that during  
outbreaks in farms there, clinical signs of the disease together with elevated mortalities alert farm  
personnel to conduct fish health investigations. For diagnosis of HSMI, fish are examined using  
histology to visualize characteristic pathologies in the heart and skeletal muscles that  
differentiate the disease from other known diseases in salmon. To date, HSMI has only been  
reported in farmed fish, globally.  
[63] The March RSR states that in British Columbia there are no reports of elevated levels of  
mortality or production losses in farmed Atlantic salmon due to HSMI. It describes the Di Cicco  
2017 study as having conducted a histological assessment of Atlantic salmon during the course  
of a marine production cycle on one BC farm and as having documented the progression of  
cardiac lesions found in those fish as consistent with histopathological diagnosis of HSMI in  
Norway. During the period of highest prevalence, HSMI was diagnosed in between 2044% of  
sampled fish with an additional 3570% having some degree of minor heart inflammation.  
Page: 33  
However, despite the occurrence of lesions, there was no associated elevation in mortalities. The  
March RSR concludes that the Di Cicco 2017 study strongly confirmsthe lack of mortality  
and clinical disease associated with HSMI in British Columbia; identifies a potential linkage of  
PRV in the occurrence of HSMI; and, importantly, provides evidence that PRV infection of farm  
fish in that instance was by marine reservoir.  
[64] As to insight into the prevalence of PRV in wild salmon, the March RSR lists three  
studies, the first of these is Purcell MK et al (2017), Molecular testing of adult Pacific salmon  
and trout (Oncorhynchus spp) for several RNA viruses demonstrates widespread distribution of  
piscine orthoreovirus in Alaska and Washington, J Fish Dis 2017; 1-9 (“Purcell 2017”). The  
March RSR states that the Purcell 2017 study findings are consistent with other studies  
indicating PRV to be widespread among many species and stocks of Pacific salmon within  
western North America. The RSR asserts that it is worth noting that while a range of Pacific  
salmon species may be susceptible, coho and Chinook salmon accounted for 97.4% of all PRV  
positive findings in Purcell 2017, thereby revealing species susceptibility differences. And,  
while the sampled fish were not assessed clinically at the time of sampling, it is noteworthy that  
the fish screened in the Purcell 2017 study represented returning adult fish that have successfully  
completed their life cycle. As to a study by Morton A et al (2017), The effect of exposure to  
farmed salmon on piscine ortheovirus infection and fitness in wild Pacific salmon in British  
Columbia, PLoS ONE (12)(12): e0188793 (“Morton 2017”), which suggested geographic  
differences in PRV prevalence between areas with and without salmon aquaculture, the March  
RSR states the authors of Morton 2017 acknowledge that because of limited sampling, no  
definitive conclusions are able to be made. The March RSR states, however, that Morton 2017  
Page: 34  
does serve to corroborate PRV in farmed and wild salmon. And, as observed in Purcell 2017, to  
understand the epidemiology of PRV in salmon populations, investigations must consider host  
species susceptibility differences; involve an understanding of the phytogeography of PRV; and  
incorporate aspects of the biology and migratory behaviour of Pacific salmon. Another study  
referenced, Madhun AS et al (2018), Prevalence of Piscine Ortheovirus and salmonied and  
alphavirus in sea-caught returning adult salmon (Salmo Solar L.) in northern Norway, J Fish  
Dis; 1-7 (Madhun 2018), showed no association between salmon farming and the prevalence  
of PRV infection in wild salmon in northern Norway.  
[65] As to biomarkers for identifying viral associated pathological disease, the March RSR  
states that what triggers the host fish to respond to PRV infection in some instances is yet  
unknown. Following the Di Cicco 2017 findings, Miller KM et al (2017), Molecular indices of  
viral diseases development of wild migrating salmon, Conserv Physiol 5(1); cox036 (Miller  
2017) identified that, like in Norway, fish experiencing HSMI in BC had a heightened  
expression of genes associated with virus recognition and antiviral defence relative to  
non-diseased fish. Those authors used tissue sampling from sea pen raised Chinook salmon to  
identify a high (90%) prevalence of PRV within the sampled population (36 fish) and identified  
that diseased fish experiencing jaundice syndrome a sporadic disease typically observed in a  
small portion (1.5%) of Chinook during a production cycle had systematic activation of viral  
associated genetic biomarkers which were attributed to the presence of PRV. The March RSR  
notes that while prior investigations had been unable to induce jaundice in chinook (referencing  
Garver KA et al (2016), Piscine reovirus, but not Jaundice Syndrome, was transmissible to  
Chinook Salmon, Oncorhyunchus tshawytscha (Walbaum), Sockeye Salmon, Oncorhyunchus  
Page: 35  
nerka (Welbaum), and Atlantic Salmon, Salmo Salar, L. J. Fish Dis. 39(2): 117-28 (“Garver  
2016(a))), the Miller 2017 findings indicate that in the rare occasions where fish become  
jaundiced, the recognition of PRV in those diseased fish may exacerbate tissue pathology or  
possibly contribute to its initial development. However, why the disease is observed in only a  
small number of PRV infected fish remains unclear. The March RSR states that these data aid in  
directing continued research into identifying the conditional requirements associated with HSMI  
in Atlantic salmon and possibly jaundice in Chinook salmon. Further, Miller 2017’s  
identification that PRV is prevalent in at least some populations of sea pen raised Chinook  
salmon in BC further confirms the ubiquitous presence of PRV in marine salmon along the  
western coast of North America and its low virulence within those populations.  
[66] As to the second question, the March RSR states,  
The most significant finding stemming from the new scholarship  
reviewed in this rapid science response is in the establishment of  
PRV as a causative agent of HSMI as described by Wessel et al  
2017. This study is novel and relevant to the testing and  
management of PRV and HSMI in BC in that the identification of  
the infectious etiology of a disease is a necessary step for its  
management. However, based on current scientific literature it’s  
clear that the sole detection of PRV remains insufficient as a  
disease determinate. For instance, high loads of PRV are  
commonly detected in apparently healthy fish without clinical  
disease revealing the uninformative nature of PRV screening as a  
diagnostic for disease development.”  
Nevertheless, the works reviewed in this science response provide  
information to better direct future research investigations and  
importantly corroborate and strengthen (re-affirm) previous results  
that are of relevance to the management and testing of PRV and  
HSMI. These are:  
In both Norway and British Columbia, Atlantic salmon  
have acquired PRV infections through exposure to a  
marine source of virus  
Page: 36  
PRV is endemic in several species of Pacific salmon  
over the geographic range of Washington to Alaska  
in BC, there have not been elevated mortality or  
production concerns associated with the sporadic  
occurrences of lesions diagnostic of HSMI in farmed  
Atlantic salmon  
HSMI has only been described in farmed fish, globally  
PRV may contribute to the rare disease occurrence of  
Jaundice Syndrome in BC farmed Chinook but in most  
circumstances has low to no virulence within Pacific  
salmon species  
Moreover, in the context of testing and management of PRV and  
HSMI in BC, it is worth noting that the Pacific Northwest Fish  
Health Protection Committee (PNFHPC), an organization in the  
United States of technical and policy representatives from  
conservation agencies, tribes and commercial fish producers from  
the Pacific Northwest, conducted a review in September 2017 of  
the information available on PRV and concluded, “The ubiquitous  
nature of piscine orthorevirus (PRV), its apparent historic presence  
in wild Pacific salmonid stocks in the Pacific Northwest and the  
lack of clear association with disease in Pacific salmonids suggest  
the virus poses a low risk to wild species of Pacific Salmonids.”  
iv)  
June 2018 Rapid Science Response  
[67] The June 2018 RSR was made in response to a June 14, 2018 request by Allison Webb,  
RDG, and required a response by June 21, 2018. The June RSR also states that it does not  
constitute delivery of peer-reviewed Science advice. The responders were Mark Higgins and  
Stewart Johnson, DFO Science. It was reviewed by Lesley MacDougall on June 21, 2018, and  
approved by Carmel Lowe on June 27, 2018. It repeats the introductory background information  
found in the prior RSR, but notes that since then, there had been at least one new paper published  
in the primary peer-reviewed literature on PRV. This paper is identified as Di Cicco et al  
(2018), The same strain of Piscine orthorevirus (PRV-1) is involved with the development of  
different, but related diseases in Atlantic and Pacific Salmon in British Columbia, FACETS, in  
 
Page: 37  
press (subsequently published as FACETS 3:599-641.doi:10.1139 / facets 2018-008, accepted  
April 23, 2018, published June 18, 2018) (“Di Cicci 2018”)).  
[68] The request posed two questions:  
1. How does this recently published paper, and other  
recently published papers not yet reviewed, alter the  
scientific perspective on the role of PRV in the  
development of disease?  
2. Given the recent review (DFO, 2018), how is this study  
relevant (or not relevant) to the testing and  
management of PRV and HSMI in BC?  
[69] The June RSR notes that it limits its discussion primarily to the evidence presented in  
Di Cicco 2018 for a link between infection with PRV to development of Jaundice Syndrome in  
farmed Chinook salmon. Links between infection with PRV and HSMI in Atlantic salmon are  
the subject of the prior informal March RSR and the perspective presented there remains valid.  
[70] The June RSR states that Di Cicco 2018 provides information and related  
inferences/interpretations on the impacts of PRV in BC farmed Chinook salmon and expands on  
the previously reported HSMI diagnosis. The June RSR states that its review of the manuscript  
reveals deficiencies with the data presented and the criteria used to characterize jaundice disease  
that render the article’s conclusions unsupported. Further, the study fails to consider previously  
published information that has direct relevance to the role of PRV in the development of  
Jaundice Syndrome. Therefore, altering the current scientific perspective of the role on PRV in  
the development of disease is not recommended.  
Page: 38  
[71] More specifically, the Aquaculture Management Division’s Fish Health Audit and  
Surveillance Program (FHASP) assigns a diagnosis of Jaundice Syndrome in a farmed  
Chinook population when there is an elevated mortality rate with a substantial proportion of the  
carcasses presenting a characteristic yellow discolouration of the skin of the abdominal and  
periorbital region. Di Cicco 2018 utilized a broader suite of signs drawn from notes made by the  
attending veterinarian at the time of collection to re-classify the archived samples, including that  
such Chinook salmon were classified as “jaundice/anemia” if the veterinarians diagnostic  
comments indicated “Jaundice Syndrome” or “jaundice – no agent”, and/or the gross lesions  
indicated “yellow fluid”, “yellow bile” or “yellow bile like fluid” noted in the peritoneal cavity  
or on the pyloric caeca and/or liver. The RSR states that as a consequence of this broader  
classification, Di Cicco 2018 characterized three times as many fish (9 fish or 3.7% of the study  
samples) as showing signs of a new disease which they referred to as “jaundice/anemia”. The  
June RSR states that the Di Cicco 2018 authors do not provide a clear description of why they  
broadened the definition, nor discuss how the lesions they considered compare to those described  
for Jaundice Syndrome in Garver 2016(a). Nor did the authors acknowledge that several of the  
characteristics they included in their definition of jaundice/anemia are shared with other diseases,  
leading to bias in their conclusions. They also provide little consideration of the role of other  
pathogens.  
[72] The June RSR also states that Di Cicco 2018 proposes a cause and effect relationship  
between infection with PRV and the development of jaundice/anemia, yet present no direct  
evidence to support this. Additionally, the study does not consider the findings, which the June  
RSR then summarizes, of previously published studies, being Garver 2016(a), and more recent  
Page: 39  
challenge trials in Washington state as reported on the BC Salmon Farmers website, which  
indicate that even though a potential linkage between PRV presence in the occurrence of HSMI  
has been determined, presence of PRV does not guarantee the development of HSMI or Jaundice  
Syndrome in Chinook, sockeye, coho or Atlantic salmon.  
[73] Further, while Di Cicco 2018 stated that individuals infected with PRV and identified as  
being in a viral state represent a fish that is destined to develop jaundice/anemia and die, that  
prognosis has not been established. To accurately assess fish in varying states of disease  
progression, it is necessary to examine live, moribund and recently dead fish over time. As  
Di Cicco 2018 only examined samples that were in the same point in disease progression, their  
assessment of disease progression is unsupported. And, although mixed pathogen infections  
were detected in the salmon examined, Di Cicco 2018 does not discuss the potential of one of  
these (Erythrocytic Necrosis Virus) to contribute to the histopathological response they associate  
with jaundice/anemia. Nor does Di Cicco 2018 explicitly state what proportion of the Chinook  
salmon audit samples were infected with PRV, and it provides no data on the proportion of  
farmed Chinook salmon carrying PRV, or on the loads of PRV in apparently healthy fish. The  
June RSR states that this is essential information to support Di Cicci 2018’s conclusions on the  
importance of PRV load in the development of jaundice/anemia or other disease in Chinook  
salmon.  
[74] This is summarized as:  
Di Cicco et al. (2018), demonstrated that PRV is found in  
association with a variety of different types of lesions on a small  
sample of recently dead Chinook salmon. Di Cicco et al. (2018)  
conclude that PRV is “likely also to be the cause of  
Page: 40  
jaundice/anemia in farmed Chinook salmon”. However, theirs is  
not a cause and effect study, but rather a retrospective analysis of  
archived FHASP audit samples. The authors failed to consider the  
findings from important published cause and effect studies,  
including: 1) Jaundice Syndrome challenge trials reported in  
Garver et al. (2016), which injected tissues from Jaundice  
Syndrome fish but failed to cause jaundice, although PRV was  
transferred, and 2) Chinook and Coho PRV challenge trials  
conducted in Washington State which similarly did not result in  
anemia or other signs of disease. Di Cicco et al (2018) included a  
larger number of disease signs, many of which are shared with  
other diseases known to occur in Pacific Salmon, to establish a  
new disease which they have referred to as “jaundice/anemia”. By  
doing this the number of fish within the audit samples that are  
identified as having jaundice relative to the AMD’s audit data is  
increased threefold.  
(emphasis original)  
[75] As to the second question, the June RSR repeats some of the above concerns, adding,  
regardless of the clinical signs used, jaundice in farmed Chinook salmon on the west coast of  
British Columbia is uncommon, yet this is not discussed or put into the context of overall factors  
leading to mortality of farmed Chinook salmon. Nor do the authors demonstrate why the disease  
is observed in some PRV infected fish and not others. Further,  
The statement in the paper’s abstract that “Chinook salmon may be  
at more than a minimal risk of disease from exposure to PRV  
occurring on salmon farms” is not substantiated. Di Cicco et al.  
(2018), in summarizing the results, state that “Given that PRV-1a  
is the cause of HSMI in farmed Atlantic salmon, and likely also to  
be the cause of jaundice/anemia in farmed Chinook  
salmon,…illustrates that there may be very real risks associated  
with PRV transmission from farmed salmon (in which PRV is  
highly prevalent) to wild Pacific salmon”. However, this statement  
is subsequently qualified with The severity and extent of those  
risks still remain elusive…”. We note that the magnitude of the  
risk of disease was not examined in the study nor should it have  
been reported given the quantity and quality of the data they  
utilized.  
(emphasis original)  
Page: 41  
V.  
‘NAMGISMOTION FOR AN INJUNCTION (T-430-18)  
[76] On March 9, 2018, ‘Namgis brought a motion in T-430-18 seeking an injunction to  
prevent the Minister from issuing a transfer licence to Marine Harvest and preventing Marine  
Harvest from seeking or acting upon such a licence.  
[77] By Order and Reasons dated March 23, 2018, Justice Manson denied the motion. Based  
on the evidence before him and applying the three-part conjunctive test for interlocutory relief  
set out by the Supreme Court of Canada in RJR-MacDonald Inc. v Canada (Attorney General),  
[1994] 1 SCR 311, Justice Manson found there was a serious issue to be tried relating to the  
Minister’s obligation to regulate fish transfers and the duty to consult and accommodate  
Namgis. Further, irreparable harm had been established based on a lack of consultation, the  
importance of wild salmon to Namgis, the wild salmon fishery being at serious risk given the  
depleted wild salmon populations in Namgisasserted territory, and recent science establishing  
a connection between PRV and HSMI and the resulting risk of disease and mortality. However,  
the balance of convenience favoured Marine Harvest. The evidence was that it would take  
several weeks to prepare a different site to receive the nearly 1 million smolts intended for  
transfer to Marine Harvest’s Swanson Island facility, but that this option was not available as the  
smolts were ready and in need of immediate transfer. Namgis had, without explanation, delayed  
in bringing its injunction motion. Although it had been told by Marine Harvest in December  
2017 that the company planned to restock the facility in March or April 2018, Namgis did not  
file its injunction motion until March 9, 2018, mere days before the transfer was set to begin. As  
the third branch of the tripartite test for injunctive relief had not been met, the motion was  
denied.  
 
Page: 42  
VI.  
ISSUES  
[78] In my view, the issues arising in these three applications can be addressed as follows:  
Issue 1: Is the PRV Policy Decision Reasonable (T-1710-16 and T-430-18)?  
a) Preliminary Issue Rule 312 Motions (T-1710-16)  
b) Standard of review  
c) Was the Minister’s interpretation of s 56 of the FGRs reasonable?  
d) Did the Minister derogate from the precautionary principle?  
e) Did the Minister ignore the health of wild salmon?  
f) Did the Minister act in bad faith? (T-430-18)  
Issue 2: Did the Minister breach the duty to consult ‘Namgis concerning the PRV Policy  
Decision? (T-430-18)  
a) Standard of review  
b) Was there a duty to consult and, if so, was it breached?  
Issue 3: Was the decision to issue the Marine Harvest transfer licence reasonable?  
(T-744-18)  
a) Was the transfer licence issued in contravention of s 56 of the FGRs?  
b) Did the Minister breach the duty to consult?  
c) Did the Minister breach the duty of procedural fairness?  
Issue 4: Remedies  
Issue 5: Costs  
[79] As a preliminary observation, I note that the materials filed in these three applications for  
judicial review are extensive. The records filed by each party include lengthy affidavits with  
 
Page: 43  
multiple exhibits, reply affidavits as well as transcripts of cross-examinations of the deponents.  
There are also multiple outstanding preliminary motions deferred by the Case Management  
Judge, other motions, and attendant records. By my estimation, approximately 35,000 pages  
have been filed. In the result, while I have reviewed and considered all of the parties’  
submissions, these reasons do not attempt to describe all of the evidence or capture the level of  
detail contained in the evidence that is described. Nor do they set out every submission or  
nuance of every submission made before me. Instead, I have set out in these reasons the  
evidence and submissions that I consider to be most relevant to the resolution of the applications.  
VII. ANALYSIS  
A. Issue 1: Is the PRV Policy Decision Reasonable (T-1710-16 and T-430-18)?  
i)  
Preliminary Issue Rule 312 Motions (T-1710-16)  
[80] By Direction of July 12, 2018, the Case Management Judge required that Ms. Morton and  
Namgis, the Applicants in T-1710-16 and T-430-18 respectively, file any proposed  
supplemental affidavits no later than July 13, 2018 and that the Respondents raise any objections  
to the proposed supplemental affidavits by July 20, 2018. In the event of an objection, the  
applicant seeking to file the proposed supplemental affidavit would bring an informal motion  
(written representations only) for leave, pursuant to Rule 312, to be determined by the  
Applications Judge.  
[81] On August 17, 2018, Ms. Morton filed written representations in T-1710-16 seeking to  
file the supplemental affidavit of Carmen M. Valenzuela, legal assistant employed by  
     
Page: 44  
Ms. Morton’s counsel, Ecojustice Canada, sworn on July 9, 2018 (“Valenzuela Affidavit”), for  
the purpose of placing on the record evidence provided by Ms. Morton, which she submits was:  
in the possession of the decision-maker; should have been considered in making the June 28,  
2018 PRV Policy Decision; and, is relevant to the issues raised in her application for judicial  
review.  
[82] The Valenzuela Affidavit attaches as exhibits correspondence between counsel for the  
Minister and counsel for Ms. Morton pertaining to the anticipated decision. By letter of June 1,  
2018 (Exhibit A), counsel for the Minister informs counsel for Ms. Morton that DFO is  
considering options for reviewing the PRV Policy based on new information that has arisen since  
the March 9, 2018 reconsideration, including the Di Cicco 2018 publication. Minister’s counsel  
advises that instructions are expected shortly in that regard, which will be relayed.  
[83] In response, on June 6, 2018 (Exhibit B), counsel for Ms. Morton sent an email to  
counsel for the Minister asking that her letter, which was attached, be forwarded to the Minister  
and, in keeping with the desire of Minister’s counsel to keep communication through counsel,  
that it also be forwarded to those in DFO charged with reviewing the PRV Policy, and others.  
Attached was a June 6, 2018 letter from Ecojustice (Exhibit C), on behalf of Ms. Morton, to the  
Minister. This letter states that Ecojustice is writing to ensure that the Minister and DFO are  
aware of information that Ms. Morton believed to be germane to any reconsideration of the PRV  
Policy and attaches the following:  
Office of the Auditor General of Canada, Reports of the Commissioner of the  
Environment and Sustainable Development to the Parliament of Canada, Independent  
Auditor’s Report, Report 1: Salmon Farming (spring 2018) (“Auditor General Report”);  
Page: 45  
A pre-release of Di Cicco et al, “The same strain of Piscine orthoreovirus (PRV-1) is  
involved in the development of different, but related disease in Atlantic and Pacific  
Salmon in British Columbia”, accepted for publishing in FACETS on April 23, 2018;  
A Washington Department of Fish and Wildlife News news release, dated May 17, 2018  
regarding the Department’s refusal to issue a transfer permit for PRV-infected farmed  
salmon (“Washington State news release”); and  
December 14, 2017, correspondence from Ecojustice, on behalf of Ms. Morton, to the  
Minister setting out Ms. Morton’s view that the PRV Policy was creating significant risk  
for wild salmon migrating past fish farms, identifying what she believed to be significant  
recent scientific developments regarding PRV since the January 2017 decision and which  
she felt must be considered in the context of the health of wild salmon stocks. She  
requested that the Minister reconsider and revise the PRV Policy in light of this.  
[84] Minister’s counsel, by email of June 14, 2018 (Exhibit D), advises counsel for Ms.  
Morton that DFO has instructed him that the letter has been forwarded to the Minister’s office  
and to the decision-maker, Allison Webb, as well as others.  
[85] However, these materials are not included in the June 28, 2018 decision materials in the  
CTR. Given this, on July 3, 2018 (Exhibit E), Ms. Morton’s counsel wrote to the Minister’s  
counsel requesting that the CTR be re-certified to include the materials. By letter of July 9, 2018  
(Exhibit H), counsel for the Minister advises that the reason the materials are not included in the  
June 28, 2018 materials in the CTR is that they were not before the decision-maker when she  
reconsidered the PRV Policy on that date. Counsel for the Minister states that, “As you can  
appreciate, DFO receives many submissions from the public regarding aquaculture. Not all  
materials received by DFO are automatically included in considerations by decision-makers.”  
The letter states that as the materials were not before the decision-maker, they are irrelevant.  
Page: 46  
a) Rule 312  
[86] Rule 312 permits a party, with leave of the Court, to file additional affidavits. The  
Federal Court of Appeal in Forest Ethics Advocacy Assn v National Energy Board, 2014 FCA 88  
at paras 46 (also see Connolly v Canada (Attorney General), 2014 FCA 294 at para 6  
(Connolly) set out the requirements that must be met to obtain an order under Rule 312. First,  
an applicant must satisfy two preliminary requirements:  
(1) The evidence must be admissible on the application for judicial review. Generally the  
record before the reviewing court consists of the material that was before the  
decision-maker, although there are exceptions to this; and  
(2) The evidence must be relevant to an issue that is properly before the reviewing court.  
[87] If the two preliminary requirements are met, the applicant must then convince the Court  
that it should exercise its discretion in favour of granting the order under Rule 312. Three  
questions have been identified to guide the Court in determining whether the granting of an order  
under Rule 312 is in the interests of justice:  
(a) Was the evidence sought to be adduced available when the party filed its affidavits  
under Rule 306 or 308, as the case may be, or could it have been available with the  
exercise of due diligence?  
(b) Will the evidence assist the Court, in the sense that it is relevant to an issue to be  
determined and sufficiently probative that it could affect the result?  
(c) Will the evidence cause substantial or serious prejudice to the other party?  
Page: 47  
[88] In Association of Universities and Colleges of Canada v Canadian Copyrights Licensing  
Agency, 2012 FCA 22 (Assn of Universities and Colleges), Justice Stratas pointed out that, in  
determining the admissibility of an affidavit in support of an application for judicial review, the  
differing roles played by the Court and the administrative decision-maker must be kept in mind.  
Parliament gave the administrative decision-maker, and not the Court, jurisdiction to determine  
certain matters on their merits. Because of this demarcation of roles, the Court cannot allow  
itself to become a forum for fact-finding on the merits of the matter. Accordingly, as a general  
rule, the evidentiary record before a Court on judicial review is restricted to the evidentiary  
record that was before the decision-maker. Evidence that was not before the decision-maker and  
that goes to the merits of the matter is, with certain limited exceptions, not admissible.  
[89] Justice Stratas listed three such exceptions and noted that the list may not be closed. The  
exceptions are an affidavit that, provides general background in circumstances where that  
information might assist the Court in understanding the issues relevant to the judicial review,  
noting that care must be taken to ensure that the affidavit does not go further and provide  
evidence relevant to the merits of the matter decided by the administrative decision-maker;  
brings to the attention of the reviewing Court procedural defects that cannot be found in the  
evidentiary record of the administrative decision-maker so that the Court can fulfill its role of  
reviewing for procedural unfairness; and, highlights the complete absence of evidence before the  
administrative decision-maker when it made a particular finding.  
[90] Justice Statas revisited the general rule in Bernard v Canada (Revenue Agency), 2015  
FCA 263 (“Bernard”), referencing the Federal Court of Appeal’s prior decisions in Assn of  
Page: 48  
Universities and Colleges; Connolly; and Delios v Canada (Attorney General), 2015 FCA 117 at  
para 45 (Delios), and elaborated on the three recognized exceptions:  
[23] The background information exception exists because it is  
entirely consistent with the rationale behind the general rule and  
administrative law values more generally. The background  
information exception respects the differing roles of the  
administrative decision-maker and the reviewing court, the roles of  
merits-decider and reviewer, respectively, and in so doing respects  
the separation of powers. The background information placed in  
the affidavit is not new information going to the merits. Rather, it  
is just a summary of the evidence relevant to the merits that was  
before the merits-decider, the administrative decision-maker. In no  
way is the reviewing court encouraged to invade the administrative  
decision-maker’s role as merits-decider, a role given to it by  
Parliament. Further, the background information exception assists  
this Court’s task of reviewing the administrative decision (i.e., this  
Court’s task of applying rule of law standards) by identifying,  
summarizing and highlighting the evidence most relevant to that  
task.  
[24] The second recognized exception is really just a particular  
species of the first. Sometimes a party will file an affidavit  
disclosing the complete absence of evidence on a certain subject-  
matter. In other words, the affidavit tells the reviewing court not  
what is in the record-which is the first exception-but rather what  
cannot be found in the record: see Keeprite Workers’ Independent  
Union v. Keeprite Products Ltd. (1980), 29 O.R. (2d) 513 (C.A.)  
and Access Copyright, above at paragraph 20. This can be useful  
where the party alleges that an administrative decision is  
unreasonable because it rests upon a key finding of fact  
unsupported by any evidence at all. This too is entirely consistent  
with the rationale behind the general rule and administrative law  
values more generally, for the reasons discussed in the preceding  
paragraph.  
[25] The third recognized exception concerns evidence relevant  
to an issue of natural justice, procedural fairness, improper purpose  
or fraud that could not have been placed before the administrative  
decision-maker and that does not interfere with the role of the  
administrative decision-maker as merits-decider: see Keeprite and  
Access Copyright, both above; see also Mr. Shredding Waste  
Management Ltd. v. New Brunswick (Minister of Environment and  
Local Government), 2004 NBCA 69, 274 N.B.R. (2d) 340  
(improper purpose); St. John’s Transportation Commission v.  
Amalgamated Transit Union, Local 1662 (1998), 161 Nfld. &  
Page: 49  
P.E.I.R. 199 (fraud). To illustrate this exception, suppose that after  
an administrative decision was made and the decision-maker has  
become functus a party discovers that the decision was prompted  
by a bribe. Also suppose that the party introduces into its notice of  
application the ground of the failure of natural justice resulting  
from the bribe. The evidence of the bribe is admissible by way of  
an affidavit filed with the reviewing court.  
[26] I note parenthetically that if the evidence of natural justice,  
procedural fairness, improper purpose or fraud were available at  
the time of the administrative proceedings, the aggrieved party  
would have to object and adduce the evidence supporting the  
objection before the administrative decision-maker. Where the  
party could reasonably be taken to have had the capacity to object  
before the administrative decision-maker and does not do so, the  
objection cannot be made later on judicial review: Zündel v.  
Canada (Human Rights Commission), (2000), 195 D.L.R. (4th)  
399; 264 N.R. 174; In re Human Rights Tribunal and Atomic  
Energy of Canada Limited, [1986] 1 F.C. 103 (C.A.).  
[27] The third recognized exception is entirely consistent with  
the rationale behind the general rule and administrative law values  
more generally. The evidence in issue could not have been raised  
before the merits-decider and so in no way does it interfere with  
the role of the administrative decision-maker as merits-decider. It  
also facilitates this court’s ability to review the administrative  
decision-maker on a permissible ground of review (i.e., this  
Court’s task of applying rule of law standards).  
[28] The list of exceptions is not closed. In some cases,  
reviewing courts have received affidavit evidence that facilitates  
their reviewing task and does not invade the administrative  
decision-maker’s role as fact-finder and merits-decider: Hartwig v.  
Saskatchewan (Commissioner of Inquiry), 2007 SKCA 74, 284  
D.L.R. (4th) 268 at paragraph 24. For example, in one case the  
applicant wished to submit that the administrative  
decision-maker’s decision was unreasonable because it wrongly  
construed certain submissions made by counsel as admissions. But  
counsel’s submissions to the administrative decision-maker were  
not in the record filed with reviewing court. The reviewing court  
admitted evidence of counsel’s submissions so that it could assess  
whether the decision was unreasonable: Ontario Shores Centre for  
Mental Health v. O.P.S.E.U., 2011 ONSC 358. In another case, a  
reviewing court admitted a partial transcript of proceedings before  
an administrative decision-maker. The transcript was prepared by  
one of the parties, not by the administrative decision-maker. In the  
circumstances, the reviewing court was satisfied that the partial  
Page: 50  
transcript was reliable, did not work unfairness or prejudice, and  
was necessary to allow it to review the administrative decision:  
SELI Canada Inc. v. Construction and Specialized Workers’  
Union, Local 1611, 2011 BCCA 353, 336 D.L.R. (4th) 577.  
In Delios, Justice Stratas stated as follows with respect to the general background exception:  
[44] Under this exception, a party can file an affidavit providing  
“general background in circumstances where that information  
might assist [the review court to understand] the issues relevant to  
the judicial review”: Access Copyright, above at paragraph 20(a).  
[45] The “general background” exception applies to  
non-argumentative orienting statements that assist the reviewing  
court in understanding the history and nature of the case that was  
before the administrative decision-maker. In judicial reviews of  
complex administrative decisions where there is procedural and  
factual complexity and a record comprised of hundreds or  
thousands of documents, reviewing courts find it useful to receive  
an affidavit that briefly reviews in a neutral and uncontroversial  
way the procedures that took place below and the categories of  
evidence that the parties placed before the administrator. As long  
as the affidavit does not engage in spin or advocacy - that is the  
role of the memorandum of fact and law - it is admissible as an  
exception to the general rule.  
[46] But “[c]are must be taken to ensure that the affidavit does  
not go further and provide evidence relevant to the merits of the  
matter decided by the administrative decision-maker, invading the  
role of the latter as fact-finder and merits-decider”: Access  
Copyright, above at paragraph 20(a).  
[91] The Federal Court of Appeal has also held that an affidavit must be premised upon  
personal knowledge and that its purpose is to adduce facts relevant to the dispute without gloss  
or explanation. The purpose of an affidavit is not to be confused with the written submissions a  
party is entitled to make in support of their application (Duyvenbode v Canada (Attorney  
General), 2009 FCA 120 at paras 23). Affidavits must be free from argumentative materials  
and the deponent must not interpret evidence previously considered by a tribunal or draw  
Page: 51  
negative conclusions (Canadian Tire Corporation v Canadian Bicycle Manufacturers  
Association, 2006 FCA 56 at paras 910 (Canadian Tire Corp); also see Canada (Attorney  
General) v Quadrini, 2010 FCA 47 at para 18).  
b) Ms. Morton’s Position  
[92] Ms. Morton notes that in August 2016 she sent a letter and an expert report to the  
Minister in support of her demand that he change the PRV Policy. Those materials were  
included in an affidavit affirmed by Ms. Morton. Although the Respondents sought to have the  
materials struck from the record, by Order dated August 11, 2017, the Case Management Judge  
refused to strike them on the basis that she was not prepared to foreclose Ms. Morton’s right to  
argue on the merits of the application that such material should have been before the  
decision-maker and, accordingly, found that the materials fell within the Assn of Universities and  
Colleges exceptions. The Case Management Judge also stated that she would not foreclose  
Ms. Morton’s ability to place before the Court evidence regarding the information and  
documentation that she had transmitted to the Minister, which Ms. Morton asserted was relevant  
to the Minister’s decision to adopt the PRV Policy. Ms. Morton submits that the Valenzuela  
Affidavit should be admitted on the same grounds.  
[93] Additionally, the Valenzula Affidavit and materials are admissible because they provide  
important background information for this Court’s assessment of the reasonableness of the PRV  
Policy and the decision-making process in adopting that Policy. The rejection of Ms. Morton’s  
good-faith response, excluded from the CTR, provides information as to the reasonableness of  
the decision-making process. Further, the background materials will assist the Court in  
Page: 52  
understanding issues relevant to the judicial review. They provide the Court with a more  
accurate and complete factual context within which to understand and assess the legality of the  
Minister’s PRV Policy.  
[94] Ms. Morton also submits that the Valenzuela Affidavit meets the interests of justice test.  
None of the materials attached to the Valenzuela Affidavit existed when Ms. Morton filed her  
initial affidavit in November 2016 in support of the application. Further, the materials are  
relevant because Minister’s counsel assured Ms. Morton that they were in the decision-maker’s  
possession. The Affidavit establishes that those materials were not considered by the  
decision-maker, which is probative to Ms. Morton’s assertion that the PRV Policy and the  
process for maintaining it were unreasonable. This evidence will also help the Court to discern  
the reasonableness of the Policy and the underlying decision-making process. Further, as to  
prejudice, the Case Management Judge gave the Respondents an opportunity to file Rule 312  
affidavits responding to the Valenzuela Affidavit. The Minister has done so, filing the July 28,  
2018 Affidavit of Lauren Situ (“Situ Affidavit”), which attaches correspondence that the  
Minister claims should have been included in the Valenzuela Affidavit. Ms. Morton does not  
object to the filing of the Situ Affidavit. Thus, to the extent that the Valenzuela Affidavit causes  
prejudice, the opportunity to file additional materials cures this. Marine Harvest and Cermaq  
chose not to file responding affidavits, which speaks to the lack of prejudice that the Valenzuela  
Affidavit being included in the record will cause.  
Page: 53  
c) The Respondents’ Positions  
[95] The Respondents submit that the Valenzuela Affidavit does not meet the preliminary  
requirements for admitting additional affidavit evidence. It is inadmissible and irrelevant as it is  
evidence that was not before the decision-maker and is not admissible under any of the  
exceptions to the general rule against extrinsic evidence on judicial review. A court sitting in  
judicial review is not a forum for fact finding on the merits of the decision, its job is not to  
conduct a trial de novo on the issues, and it is not an academy of science tasked with mediating  
scientific debates (Assn of Universities and Colleges at paras 1718; Inverhuron and District  
Ratepayers’ Assn v Canada (Minister of the Environment), [2000] 191 FTR 20 at para 71; Henri  
v Canada (Attorney General), 2016 FCA 38 at para 41). The Minister submits that under the  
Fisheries Act and its associated regulations, it is the Minister who is responsible for managing  
fisheries. The role of the Court is to consider whether the decision under review is reasonable  
based on the grounds of review set out in the notice of application, pursuant to s 18.1 of the  
Federal Courts Act, RSC 1985, c F-7, and on the record that was before the decision-maker.  
[96] The Respondents submit that here, Ms. Morton seeks to introduce additional evidence  
and argument going to the merits of the decision. In particular, the June 6, 2018 letter attached  
as Exhibit C of the Valenzuela Affidavit contains extensive argument by Ms. Morton on the  
merits of the PRV Policy. The Affidavit attaches additional evidence intended to supplement the  
findings of the decision-maker and encourage the Court to form its own view on the factual  
merits of the reviewed decision. Nor does the Valenzuela Affidavit meet the requirements of  
helpful, general background information. And, although Ms. Morton seeks to admit the  
Affidavit to show that the decision-maker chose not to consider these materials, her pleadings  
Page: 54  
have not challenged the Minister’s process for maintaining the PRV Policy. Thus, although  
Ms. Morton submits that the Valenzuela Affidavit illustrates that the Minister chose not to  
consider the submitted material, these materials are irrelevant. If admitted, the parties would be  
prejudiced because it puts evidence before the Court that did not form a part of the record and  
raises a new issue of procedural fairness that Ms. Morton does not challenge in her application  
for judicial review.  
[97] Marine Harvest adds that while Ms. Morton’s public interest litigant standing is not  
contested, she is still just a member of the public, and while she is entitled to send materials to  
the Minister, she is not entitled to have them considered in specific decisions, and she is not  
entitled to shape the record. The idea that a private party without a right of hearing can send  
materials to a decision-maker and then argue that they form part of the record could have  
far-reaching consequences.  
d) Analysis  
[98] I have considerable difficulty with the Minister’s refusal to include the correspondence  
and materials attached to the Valenzuela Affidavit in the CTR. It is apparent from these  
materials that subsequent to Ms. Morton commencing her application on October 12, 2016,  
counsel for the Minister advised Ms. Morton’s counsel that DFO was considering reviewing the  
PRV Policy as new information had become available. Ms. Morton was not, at this stage, just  
another member of the public. She had commenced her application and had an ongoing interest  
in the Policy reconsiderations that post-dated her application. It was in this context that she was  
specifically advised by counsel for the Minister of the intended further reconsideration.  
Page: 55  
[99] She also specifically requested that the letter and materials provided in response be sent  
to the Minister and those within DFO who would be reviewing the PRV Policy. Her counsel was  
advised by counsel for the Minister that this had been done, specifically referencing the  
decision-maker, Allison Webb. Given this, it is impossible to see how counsel for the Minister  
could subsequently attempt to justify the omission from the CTR on the basis that Ms. Morton’s  
letter was not before Ms. Webb when she reconsidered the PRV Policy on June 28, 2018. And  
while it may be true that DFO receives many submissions from the public regarding aquaculture  
and that they are not automatically included in considerations by decision-makers, here  
Ms. Morton requested and was told that the materials had been forwarded to Ms. Webb.  
[100] It was, of course, open to Ms. Webb to afford the letter and materials little weight or to  
find that they were not relevant to her consideration. However, in my view, she was not entitled  
to pretend that they did not exist or were not before her and, on that basis, exclude them from the  
record.  
[101] Accordingly, the correspondence and materials attached as exhibits to the Valenzuela  
Affidavit, in these circumstances, should have been included in the CTR.  
[102] However, Ms. Morton did not bring a motion challenging the refusal of the Minister to  
re-certify the record. Nor does she argue that the Minister’s Delegate breached the duty of  
procedural fairness by excluding the materials from the record, thereby failing to consider them  
when reconsidering the PRV Policy. Instead, Ms. Morton relies primarily on the general  
Page: 56  
background exception to the rule precluding the submission of new evidence that was not before  
the decision-maker.  
[103] Given this, and applying the above requirements that must be met to obtain an order  
under Rule 312, I find that only paragraphs 1 to 3 of the Valenzuela Affidavit and two of the  
documents attached to the exhibits of the Affidavit are admissible.  
[104] Exhibit C, Ecojustice’s June 6, 2018 letter on behalf of Ms. Morton is not admissible as it  
contains what is described as her scientific opinion that the PRV Policy was creating a  
significant risk to migrating wild salmon and that the materials she attached supported her  
opinion that the PRV Policy was unlawful and unreasonable. The letter also summarizes what it  
describes as the most pertinent points of the Auditor General’s Report and Di Cicco 2018, as  
well as including what are described as brief references to “the dire state of wild Chinook stocks  
in British Columbiaand the significance of the Washington State news release. This letter, and  
other letters of Ecojustice to the Minister that are enclosed with it, go beyond what is  
encompassed by the general background exception for non-argumentative orienting statements  
that assist the reviewing court in understanding the history and nature of the case that was before  
the administrative decision-maker, and instead provide opinion evidence relevant to the merits of  
the matter decided by the administrative decision-maker.  
[105] However, the Auditor General’s Report, which is attached as part of Exhibit C, is an  
independent report and a public document. It is a performance audit focused on whether DFO  
and the Canadian Food Inspection Agency (CFIA) managed the risks associated with salmon  
Page: 57  
aquaculture in a manner that protected wild fish. It follows up on the Federal Government’s  
commitment to implementing the recommendations of the Cohen Commission. The Auditor  
General’s Report makes recommendations and includes DFO’s responses to each  
recommendation. In my view, the Auditor General’s Report is helpful background information.  
I would also point out that the Auditor General’s Report was put to Andrew Thomson, Regional  
Director of the Fisheries Management Branch of DFO, when he was cross-examined by counsel  
for Ms. Morton on his January 29, 2018 affidavit filed by the Minister in T-1710-16 (Thomson  
Affidavit #1). It is therefore before me as Exhibit 7 to the transcript of cross-examination on  
Thomson Affidavit #1. The transcript of that cross-examination also indicates that counsel for  
the Minister agreed that the cross-examination of Mr. Thomson with respect to the questions  
posed by and answers responding to counsel for Ms. Morton in T-1710-16 could be utilized by  
‘Namgis in T-430-18 and T-744-18, subject to any objections by the Minister made pursuant to  
Rule 95(1). The Auditor General’s Report is therefore also found as an exhibit to that  
cross-examination in ‘Namgisapplication records in T-430-18 and T-744-18. The Auditor  
General’s Report is also referenced by Mr. Thomson in his affidavit sworn on July 5, 2018 and  
filed in T-430-18 (“Thomson Affidavit #2”).  
[106] As to Di Cicco 2018, it was this report that prompted the Minister to conduct the June 28,  
2018 reconsideration of the PRV Policy. The June 2018 Rapid Science Response indicates that  
the Aquaculture Management Division of DFO requested a review of that paper, and other  
recently published studies, to ensure that DFO’s testing and fish health management approach  
are informed by the latest scientific evidence and to determine if changes to DFO’s management  
approach should be considered as a result of the new information Di Cicco 2018. Di Cicco 2018,  
Page: 58  
which was authorized in part by DFO sicentists, was also put to Mr. Thomson on cross-  
examination on Thomson Affidavit #1 by counsel for Ms. Morton in T-1710-16 and is therefore  
in the record before me as Exhibit 11 to the transcript of that cross-examination and, as stated  
above, it is similarly found as an exhibit in ‘N