Perhaps you own a boat and you lent it to someone who then went out and used it for some illegal fishing activities. As a result of their actions your boat has been seized by Fisheries Officers and may be subject to forfeiture. This may not mean the boat is lost to you forever. If the court grants and orders forfeiture of the boat there is a remedy available to you under the Fisheries Act.

Pursuant to section 75(1) (hyperlink the section) any person who claims an interest in a thing as owner, mortgagee, lienholder or holder of any like interest may within 30 days of the forfeiture apply in writing for an order returning the boat to them as the rightful owner. The 30 day deadline is a strict deadline and an application to the court will need to be made within 30 days of the forfeiture order being made.

In order for a Judge to make an order returning the boat to you the Judge must be satisfied that you:

  • Were innocent of any involvement in the offence or alleged offence that resulted in the forfeiture; and
  • Exercised all reasonable care in respect of the person permitted to obtain possession of the boat to satisfy yourself that the thing was not likely to be used illegally.

In the Newfoundland Court of Appeal Decision Greening v. Canada (Fisheries and Oceans), 1997 CanLII 14717 (NLCCA) (hyperlink case), the court reviewed the test that must be considered when an application is made to return the boat under section 75(1) at para. 20 to 22:

[20] The key words relate to the obligation of the bailor to exercise “all reasonable care” in respect of the bailed article “to satisfy” himself that it will not likely be used illegally. A number of general observations can be made about the general language used in the legislation. First, paragraph (b) only applies where there is a “person permitted to obtain the possession” of the article in question. It presupposes that there has been a voluntary bailment. Where an article is therefore stolen or otherwise taken without consent, express or implied, there would not appear to be any obligation to establish that any particular steps were taken to ensure the improper use of the machine. Secondly, on the face of the paragraph, there is an obligation “to satisfy” oneself that the bailed article is not likely to be used contrary to the legislation. The only express requirement is that there be an internal satisfaction of the bailor with respect to this matter. There is no requirement expressly stated that the bailor must say or do anything to or in respect of the bailee to achieve this purpose.

[21] The third general observation is that the bailor must take reasonable care to satisfy himself or herself that the article bailed is not “likely” to be used contrary to the legislation. In other words, it is only when, with the exercise of reasonable care a likelihood, not any mere suspicion or fanciful possibility, of illegal use is disclosed that an obligation to do something further will be required.

[22] Finally, the paragraph requires the bailor to satisfy the court that he or she exercised “all reasonable care” in respect of the bailee to satisfy himself or herself that the bailed article would not likely be used for an illegal purpose. There is, therefore, an obligation to act reasonably in the process of going about the requirement of internal self-satisfaction. Since one can never peer into the subjective thoughts of another, in practice the court will often have to look at the words uttered or the external actions of the bailor, viewed against the circumstances of existing knowledge, to determine whether reasonable care was in fact used.

On the face of s. 75(4), however, the express language does not preclude the possibility of the court being satisfied, after an assessment of the credibility of the bailor, that the bailor acted reasonably to satisfy himself or herself by engaging in appropriate thought processes that led to the bailor being satisfied, without taking any external information – gathering steps for this purpose, or that, given the circumstantial knowledge, a reasonable person in the position of the bailor would not have thought to do anything further.

The courts have made it clear that section 75(1) of the Fisheries Act is in place to protect innocent people who had no involvement in the commission of an offence which led the forfeiture from having their personal property taken. It is clear from the Greening v. Canada decision that reasonable care should be assessed in a realistic matter taking into account the individual circumstances of the case.

While the individual circumstances of each case well vary it is clear that in order for an individual to successfully apply for a return of a boat that has been forfeited under the Fisheries Act an individual must show:

  • that they had no involvement in the illegal conduct that led to the forfeiture; and
  • that they took some reasonable steps to satisfy themselves that it was not going to be used for some illegal purpose.

Determining what reasonable steps are will depend on the individual and circumstances. For example, I recently assisted a client who had allowed individuals interested in buying his boat to take the boat for a test run. Prior to allowing them to take the boat he and the individuals had discussed where they planned to go with the boat and what they planned to do with the boat. The boat was subsequently forfeited. I assisted the client in applying under s. 75(1) of the Fisheries Act and the court determined he was entitled to have his boat returned to him as he had made inquiries to satisfy himself that the boat was not going to be used for some improper purpose.

If your boat is subject to a forfeiture order and you would like more information on applying for a return of your boat, please contact the office and arrange to speak to one of our lawyers.