Salmon farming has been a matter of public controversy. Opponents argue that open net-pen salmon farming causes marine pollution, and that open-water pens serve as a breeding ground for diseases such as sea lice which in turn threaten wild salmon. The Federal Government has publicly committed to phasing out open-net pen salmon farming across the Province of British Columbia by 2029.
This has led to litigation in both the courts of this province and in the Federal Court. In the recent decision Canada (Attorney General) v. Mowi Canada West Inc., 2026 BCCA 295, the British Columbia Court of Appeal upheld a decision of the British Columbia Supreme Court (2025 BCSC 634) striking parts of a claim brought by four corporate plaintiffs.
The litigation stemmed from actions taken by the Ministry of Fisheries, Oceans and the Canadian Coast Guard and the decisions made by its Ministers between 2020 and 2022. The plaintiffs were companies involved in the salmon aquaculture business operating in the Discovery Islands area of the province. The Minister made decisions, including refusing to renew the licenses for two of the plaintiffs, which effectively ended the salmon aquaculture industry in the region. The plaintiffs commenced legal proceedings against the federal government and the two Ministers from the relevant period, alleging several tort claims, including negligence, negligent misrepresentation, and misfeasance.
Under the Fisheries Act, the Minister has a statutory duty to manage fisheries and aquaculture in the public interest. Aquaculture is strictly prohibited in Canadian waters absent a federal license. The plaintiffs complaint stemmed largely from the fact that farmed Atlantic salmon have a complex five-year production cycle which includes transferring to different locations, beginning in freshwater hatcheries and ultimately into saltwater pens. There is a narrow window of time where young fish (“smolts”) must be transferred from freshwater tanks to saltwater pens, or else they die. Careful long-term planning and predictable, consistent regulation is needed for aquaculture companies to operate.
In December 2020 the Minister decided to temporarily renew the aquaculture licenses, but prohibited the transfer of any new smolts into saltwater pens. This inevitably led to losses of that generation of fish, and the plaintiffs allege substantial financial damages stemming from that decision.
The federal government brought an application to strike various parts of the plaintiffs’ action(s) and were partially successful. The trial judge declined to strike the plaintiffs’ claim for Misfeasance in public office, negligence, and negligent misrepresentation. Misfeasance in public office is an intentional tort directed at curbing unlawful behavior by government officials. However, a successful litigant will need to prove that a public officer either using their authority to intentionally injure a person or category of persons, or intentionally acting, knowing they have no legal authority to so act, and are subjectively aware that the act is likely to injury a person. Although this is a high bar to clear, the Court of Appeal ultimately upheld the trial judge’s decision, as applications to strike pleadings operate under an assumption that facts alleged in the pleadings are true. Actually proving those facts is a matter for trial and is not part of the judge’s consideration in the application. The plaintiffs alleged that the Minister made the licensing decisions on a timeline which she knew was unworkable with moving existing smolts into saltwater pens, resulting in their deaths. The Court of Appeal, on review of the trial level decision, found that the claim of misfeasance could not be said to be bound to fail. The corresponding damages were rooted in the loss of income associated with the loss of the fish.
On the other hand, the Court of Appeal upheld the dismissal of the plaintiffs’ claim for “Constructive taking”, which is the forcible acquisition of private property by the Crown, through an exercise of its regulatory powers. The Court of Appeal held that fishing licenses are property of the Crown and not of their licensees, and do not confer any future right or privilege. The Court of Appeal thus held that the licenses do not confer a proprietary right capable of being expropriated, and no advantage or benefit could flow to the Crown. Nor did the refusal of licenses under the Fisheries Act create a benefit or advantage for the Crown regarding any of the plaintiffs’ property, such as their facilities/equipment.
