Disabled fisherman fights 'arbitrary' 5-year limit on substitute fishermen

A Supreme Court of Nova Scotia justice has ruled a disabled lobster fishermen will have to go to the Federal Court if he wants to challenge policies that prevent him from getting someone else to operate his boat.

Dana Robinson is unable to fish due to a medical condition and says 'unfair' term limit is discriminatory

Fisheries Act regulations only permit someone with a medical issue to have a substitute operator fish under their licence for up to five years. They also have to reapply each year. (Andrew Vaughan/Canadian Press)

A disabled Nova Scotia fisherman says he will continue challenging a federal rule that will prevent him from hiring someone to catch lobster under his licence. 

Dana Robinson lives in Granville Ferry, N.S., and has had an owner-operator licence to fish in the Bay of Fundy, Area 35, since 2007. But due to a medical condition, he's no longer able to stand for more than a few hours a day and can't operate his boat himself.

Fisheries Act regulations permit someone who has a medical issue to find a substitute to fish under their licence, but only for five years. 

Robinson, 57, believes capping the number of years to five discriminates against disabled and ill fishermen. 

Doesn't want to have to sell licence

He said he paid for his licence and wants to be able to pass it along to his children or grandchildren — just like he would land or farm quotas. He said he doesn't want to go sit in the boat's wheelhouse while other people fish. 

"I've worked all my life. I've spent lots of hours on the water and lots of hours at the fish plant," he said. 

"All I want to do is leave this licence for my family.… I could sell it quickly, that's not an issue. I don't want to sell it."

He took his case to the Supreme Court of Nova Scotia, arguing that limiting the amount of time someone can apply for a substitute operator violated his rights under the Charter of Rights and Freedoms.

Dana Robinson can only stand for a few hours a day and can't operate his boat himself. (Submitted by Dana Robinson)

In a Feb. 26 ruling, Justice Denise Boudreau said the court didn't have jurisdiction to hear the case and said Robinson would have to go to the Federal Court if he wants to challenge policies that prevent him from getting someone else to operate his boat.

Robinson's lawyer, Richard Norman, said people with fishing licences shouldn't lose their ability to earn a living from the licence because they're disabled. He calls the Fisheries Department's five-year limit "arbitrary" and "unfair."

"Why not 10? 20? Why does there have to be any limit on the amount of years that a person with a disability or a medical condition, why does there have to be a limit on the amount of years such a person can obtain a substitute to do the fishing on the boat for them?"

DFO says 5 years 'reasonable timeline'

The Department of Fisheries and Oceans said its owner-operator policy requires the person who holds the licence to fish themselves. 

The department also said people may appeal a decision if they're denied a substitute operator and exceptions to its policies can be made "when exigent circumstances exist."

"The expectation is that five years provides a reasonable timeline for a licence holder in an owner-operator fleet to make use of a medical substitute operator and return to fishing the licence personally or else to request the re-issuance of the licence to another eligible harvester," an emailed statement said. 

'Continuous' paperwork in long legal battle

Robinson has been trying to get approval to continue using a substitute after his five years ran out in 2015. 

He first took his concerns to DFO's Regional Licensing Appeal Board in 2016, which dismissed his appeal the following spring. 

Robinson appealed that decision to the Atlantic Fisheries Licence Appeal Board. Because the board didn't have the necessary quorum to hear it, it granted Robinson an extension that will last until July 2018.

The process has been "very expensive" and involved "continuous paperwork," Robinson said.

Norman said his client would like to get rid of the policy or see the law change so other people don't have to go through the same thing. 

"Even though he has the licence, a number of licences, he has to go through a complicated process each time, which costs him money and has a lot of uncertainty," he said.

About the Author

Elizabeth McMillan

Elizabeth McMillan is a journalist with CBC Nova Scotia. Over the past eight years, she has reported from the edge of the Arctic Ocean to the Atlantic Coast and loves sharing people's stories. She can be found on twitter @elizmcmillan.