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Alleging disability discrimination, lobster fisherman taking DFO to Federal Court

There appears to be no impact to date on lobster processors selling fresh and frozen seafood products, including lobster to China. The fallout from the Huawei dispute set off late last year by Canada’s decision to detain a top executive with telecom giant Huawei has hit Canadian farmers hard with the suspension of canola exports to China.
Fisheries and Oceans Canada has informed Dana Robinson that if he can’t fish the licence himself, he must sell it. He's taking them to court to refute that claim. - SaltWire File Photo

Longtime Nova Scotia lobster fisher Dana Robinson was hoping to pass on his fishing licence to his grandchildren.

Robinson bought the licence to fish in Area 35 on the Bay of Fundy in 1998, more than 20 years after he began fishing at the age of 16. Today, chronic circulation problems in his legs necessitating a number of surgeries have left him medically unable to withstand the physical toll of being out on the vessel, so he uses a substitute operator to fish while he manages the operation from shore.

But due to a federal owner-operator policy, the Fisheries and Oceans Canada (DFO) has informed Robinson that if he can’t fish the licence himself, he must sell it. And even though Robinson estimates he could get around $3 million for the licence, he’s not interested.

Keeping to pass on to family

“It’s 2019 and you hear from the government all sorts of rhetoric about how, as a country, we support people with disabilities and so on, and here is [...] an example of the government being extremely discriminatory towards people with disabilities or medical conditions by saying ‘sorry you cannot participate in this particular industry.’”
            — Richard Norman, Dana Robinson’s lawyer

“This licence was bought and paid for by me. It’s going to be heritage. I’m going to give it to my grandchildren when they get older,” he said.

“I’m not interested in selling it, I don’t want to transfer it to nobody — it’s my licence that I bought and paid for and fished all my life (it’s) my right to keep this licence.”

In Section 11 of the commercial fisheries licensing policy for Eastern Canada, DFO mandates that when the holder of a licence is affected by an illness that prevents them from operating a fishing vessel, upon request and with medical documentation, they can designate a substitute operator. That designation, the regulations state, may not exceed a total period of five years.

For the last number of years, Robinson has been challenging DFO’s refusal to let him continue to use a substitute and has been fighting to appeal the policy, even filing an application in Nova Scotia Supreme Court, which was refused.

In March, DFO, via the deputy minister, issued a final decision denying Robinson’s request to continue to use a medical substitute operator.

Now he’s taking his fight to Federal Court — earlier this month Robinson filed an application for judicial review asking the court to declare that section of DFO’s licensing policy unconstitutional as well as to quash the Department’s decision about his own use of a substitute operator and declare the decision discriminatory.

Robinson’s lawyer Richard Norman argues that preventing Robinson from continuing to use his licence goes against Section 15 of the Canadian Charter of Rights and Freedoms, which states that every individual has equal protection and equal benefit of the law without discrimination and based on physical disability.

“(Fishers) are being told, ‘Sorry, no, that’s it, you have five years to either get better or get out of the industry, no matter how involved you are in the business,’” Norman said.

“It’s 2019 and you hear from the government all sorts of rhetoric about how, as a country, we support people with disabilities and so on, and here is ... an example of the government being extremely discriminatory towards people with disabilities or medical conditions by saying, ‘Sorry you cannot participate in this particular industry.’”

Aging population

Norman said the enforcement of this policy is especially concerning in Atlantic Canada where there is an aging population.

“Here are hard-working people in a physical industry where, at certain age, they may say, ‘I’ve done this all my life, I’ve got a thriving business, I employ all sorts of people, I’m not going to be on the boat but I’m going to be involved every day,’ and yet they’re not allowed to use their licence anymore,” he said.

According to Norman, until recently the five-year limit was rarely enforced but has been enforced much more vigorously in recent years.

But Robinson says even now it’s not being enforced unilaterally.

“Other people have called me and said they’ve had their licence for 15 years and are getting substitute operators no problem,” Robinson said.

“It’s not like there are hundreds of people using substitute authorizations like this, and you do have to prove you have a medical condition every year.”

            - Dana Robinson, fisherman

Norman said he suspects this crackdown is to avoid abuse of the policy, or it may be part of Ottawa’s effort to thwart a corporate takeover of the inshore fishery in Atlantic Canada via so-called controlling agreements, an arrangement whereby a fisher would technically own an inshore licence in name, but every aspect of the licence would be controlled by the company that funded it. Most of these agreements are set up under the table as DFO has banned them.

Norman argues that those situations should be dealt with separately from cases like Robinson’s.

‘Poor rationale’

“That is a really poor rationale for having a five-year limit. … It’s not like there are hundreds of people using substitute authorizations like this, and you do have to prove you have a medical condition every year,” he said.

“The government is focused on this owner-operator policy but really fishers with disabilities and medical conditions are being sacrificed.”

In an emailed statement a spokesperson from DFO said owner-operator policies aim to maintain an economically viable inshore fishery by keeping the control of fishing licences in the hands of independent owner-operators.

“Maintaining small-boat independent licence holders and a fair licensing regime supports both the protection of middle-class jobs and ensures the long-term sustainability of the resource,” the statement reads.

“Progressive fisheries policies that prevent the corporate takeover of the industry by fewer and larger players remain pivotal in maintaining wealth distribution across the region and small communities.”

agunn@herald.ca

@notandrea

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