DFO Needs to Change Policy on Medical Substitute Operator for Lobster Fishery

The independence of the inshore lobster fishery is a goal we all support.

It helps keep licenses in individual hands through the owner-operator policy and is important to the growth and preservation of our coastal communities. In the last few years, The Department of Fisheries and Oceans (DFO) has started enforcing a policy which clearly violates the Charter of Rights and Freedoms.

In the late 1980s and early 1990s, DFO introduced the medical substitute operator policy. This allowed a license holder to apply to DFO and appoint a substitute operator to operate their vessel and fish their license due to the license holder having an illness or disability which prevented them from fishing themselves.

In most cases, the substitute operator was a family member, deckhand or close friend.  While the policy indicated that there would be a five-year limit to the use of the substitute operator, this does not seem to have been enforced by DFO.

This changed in 2015 when DFO, claiming to be addressing concerns of possible abuse of this policy, decided to enforce the five-year limit and leave disabled or ill license holders with little choice but to sell their license. In our opinion, this is a clear violation of s. 15 of the Charter of Rights and Freedoms, which protects against discrimination. In this situation, the discrimination is based on disability or medical condition.

Our law firm represents several license holders whom have decided to challenge this policy. We have worked with them through the DFO administrative appeal process and have filed an application for judicial review to the Federal Court for two license holders.

For one of these matters, we were required to make an emergency application to the Federal Court to stay the decision denying an extension so that the license holder could use a substitute operator for the 2019 spring lobster season. The judge agreed with our application and ordered DFO to grant an extension.

The five-year limit to the substitute medical operator policy must be reviewed.

DFO can apply a simple test to ensure that lobster license holders using the policy continue to maintain care and control over their license if there are any legitimate concerns of abuse. Forcing license holders to sell their license after five years because they are disabled or have a medical condition that prevents them from going on the boat is both wrong and unconstitutional in our view.

It is our hope the Minister of Fisheries and Oceans orders DFO to stop enforcing this five-year limit and undertakes an immediate review of this policy.

Michel P. Samson

Chair, Regional Fisheries Group

Cox & Palmer