T-2230-89
Edelbert Tetzlaff and Harold Tetzlaff (Appli-
cants)
v.
Minister of the Environment and Saskatchewan
Water Corporation (Respondents)
INDEXED AS: TETZLAFF V. CANADA (MINISTER OF THE ENVI
RONMENT) (T.D.)
Trial Division, Muldoon J.—Winnipeg, January
23; Ottawa, February 1, 1991.
Practice — Parties — Intervention — Trial Division Judge
striking out Sask. Water as respondent as Federal Court Act,
s. 2 excluding provincially constituted bodies from definition
of 'federal board, commission or other tribunal" — Court of
Appeal restoring respondent status Cases upon which Court
of Appeal relied distinguished, not followed — Sask. Water
again granted intervenor status to defend federal licence —
Intervention herein defined to include right of appeal —
Necessity for legislative change — Directions for future pro
ceedings, absent amendments to Federal Court Act, where
federal licensee immunized from s. 18 proceedings.
Practice — Parties — Joinder — Where federal licensee
precluded from respondent status by Federal Court Act, s. 2
because provincially constituted body, R. 1716 not applicable
by analogy according to R. 5 as R. 1716 applies only to
actions.
Practice — "Gap" Rule — Court of Appeal restoring Sask.
Water's respondent status after struck as respondent because
provincially constituted bodies excepted from definition of
'federal board, commission or other tribunal" in Federal
Court Act, s. 2 — Cannot invoke R. 5 where matter otherwise
provided for by any provision in any Act of Parliament — S. 2
providing Sask. Water cannot be sued pursuant to s. 18.
Judges and Courts Stare decisis Trial Division Judge,
ex mero motu, striking out respondent as provincial creature,
not 'federal board, commission or other tribunal" (Federal
Court Act, s. 2) Appeal Division restoring respondent status
— Trial Division Judge again ordering intervenor status only
— Trial Division Judge in invidious position of not following
F.C.A. decision or disregarding federal statute which judges of
both divisions sworn to uphold — Court of Appeal basing
decision on earlier F.C.A. case decided per incuriam — Cases
relied on by Court of Appeal not followed, distinguished.
In November, 1989 the Court, ex mero motu, struck out as a
respondent Saskatchewan Water Corporation (Sask. Water),
which held a federal licence from the respondent Minister,
because Federal Court Act, section 2 specifically excludes "any
body constituted or established by or under a law of a province"
from the definition of "federal board, commission or other
tribunal". It was given intervenor status. In December 1990,
the Court of Appeal restored Sask. Water as a respondent,
relying upon Friends of the Oldman River Society v. Canada
(Minister of Transport), [1990] 2 F.C. 18 (C.A.) and Adidas
(Can.) Ltd. v. Skoro Enterprises Ltd., [1971] F.C. 382 (C.A.).
The latter case was interpreted to mean that any person who
might be adversely affected by an order may be joined as a
party to the proceeding so that it can pursue whatever remedy
may be open to it by way of appeal therefrom. The Court was
thus put in the invidious position of having to disregard either a
unanimous panel of the Appeal Division or an unambiguous
Act of Parliament which Judges of both divisions are sworn to
uphold.
Held, Sask. Water should be granted intervenor status.
Oldman River was distinguished. There the Court was deal
ing with the jurisdiction over the Crown in right of Alberta,
which is not an entity created by or under any provincial
legislation, but by the Constitution concurrently with the crea
tion of the province of Alberta. Federal Court Act, section 25
could be invoked in the case of the provincial Crown, but
nothing in that section or elsewhere overrides the clear excep
tion in section 2 to what is a "federal board, commission or
other tribunal" for purposes of being a respondent in proceed
ings brought under section 18.
The Adidas case appears to have been decided per incuriam.
The Federal Court of Appeal made no reference to the section
2 definition and exception to "federal board, commission or
other tribunal". In any event, it should be distinguished because
the putative respondent was not a body like a "federal board,
commission or other tribunal". Furthermore, the Court indicat
ed that the principles for joinder of parties which Rule 1716
prescribes should be applied by analogy according to Rule 5.
Rule 5 cannot, however, be invoked where any matter arises
which is otherwise provided for by any provision in any Act of
Parliament. Federal Court Act, section 2 provides that a body
such as Sask. Water cannot be sued under section 18. Rule
1716 did not apply because it applies only to actions, not to
motions or other proceedings. A person or corporation over
whom the Court could not have exercised jurisdiction ab initio
cannot be added as a party respondent.
Sask. Water should be permitted to join in these proceedings
as an intervenor to defend its federal licence and so that it
might appeal against any order which impinges upon its rights
under the licence. Sask. Water has undertaken to pay any costs
awarded against it. In the absence of any specific rule that the
applicants should be liable to pay costs to Sask. Water, the
applicants shall not be liable to pay any of Sask Water's costs.
Rule 5 permits the Court in a situation of intervention by
necessity to determine the practice and procedure by analogy to
the other provisions of these Rules, or to the Saskatchewan
practice. The only case law cited dealt with control of the
Court's own process. Rule 1010, an admiralty rule permitting
intervention in an action in rem, requires the Court to define
the intervenor's rights. That Rule, by an invocation of Rule 5,
would be applied herein such that, in addition to permitting the
intervention on the same terms as in the original section 18
proceedings, Sask. Water is given the right to appeal an adverse
order impinging upon its rights as a federal licensee.
The ad hoc nature of this disposition which circumvented the
Court's statutory absence of jurisdiction and the need for
legislation to solve the problem which is likely to arise again in
this new field of cross-jurisdictional, federal environmental law
was recognized. The Court should never again exercise its
discretion in this ad hoc manner. In future, absent amendments
to the Federal. Court Act, where a federal licensee is immu
nized from section 18 proceedings, the applicants ought to serve
the licensee with copies of their section 18 process in a timely
fashion. The licensee could then commence a parallel section 18
proceeding claiming prerogative relief against the federal au
thority, seeking simultaneously to have its section 18 applica
tion heard at the same time as the applicants' motion. The
immune licensee would then be an original full party.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as
am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule
to the Constitution Act, 1982, Item 1) [R.S.C., 1985,
Appendix II, No. 5], s. 101.
Constitution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No.
44], ss. 41(a), 45.
Federal Court Act, R.S.C., 1985, c. F-7, ss. 2, 18, 19, 25.
CASES JUDICIALLY CONSIDERED
NOT FOLLOWED:
Adidas (Can.) Ltd. v. Skoro Enterprises Ltd., [19711
F.C. 382; (1971), 12 C.P.R. (2d) 67 (C.A.).
DISTINGUISHED:
Friends of the Oldman River Society v. Canada (Minis-
ter of Transport), [1990] 2 F.C. 18; (1990), 68 D.L.R.
(4th) 375 (C.A.).
CONSIDERED:
Canadian Wildlife Federation Inc. v. Canada (Minister
of the Environment), [1990] 1 F.C. 595; (1989), 32
F.T.R. 81 (T.D.); Canadian Wildlife Federation Inc. et
al. v. Canada (Minister of the Environment) and Sas-
katchewan Water Corp. (1989), 31 F.T.R. 1 (F.C.T.D.);
Carruthers v. Therapeutic Abortion Committees, [1983]
2 F.C. 581; (1983), 1 Admin. L.R. 266 (T.D.); affd.
(1983), 6 D.L.R. (4th) 57; 4 Admin. L.R. 51; 50 N.R.
373 (F.C.A.); Halco Inc. v. Sandrin Brothers (1968) Ltd.,
A-582-85, F.C.A., Hugessen J.A., judgment dated
17-2-86, not reported; Fishing Vessel Owners' Assn. of
B.C. v. A.G. Can. (1985), 1 C.P.C. (2d) 312; 57 N.R. 376
(F.C.A.).
REFERRED TO:
Union Oil Co. of Canada Ltd. v. The Queen, [1976] 1
F.C. 74; (1975), 72 D.L.R. (3d) 81 (C.A.); affd. [1976] 2
S.C.R. v; Martinoff v. Gossen, [1978] 2 F.C. 537; (1978),
46 C.C.C. (2d) 368 (T.D.); Canadian Red Cross Society
v. Simpsons Limited, [1983] 2 F.C. 372; (1983), 70
C.P.R. (2d) 19 (T.D.); Apotex Inc. v. Canada (Attorney
General), [1986] 2 F.C. 233; (1986), I C.I.P.R. 53; 9
C.P.R. (3d) 193; 1 F.T.R. 310 (T.D.); Corporation of the
City of Toronto v. Morencie, [ 1989] 1 S.C.R. vii; (1989),
104 N.R. 298.
AUTHORS CITED
Sgayias, David et al. Federal Court Practice 1990,
Toronto: Carswell, 1990.
COUNSEL:
Allan W. Scarth, Q.C., and Gordon H. A.
Mackintosh for applicants.
Craig J. Henderson for respondent Minister
of the Environment.
D. E. Gauley, Q.C., C. Wheatley and R. G.
Kennedy for intervenor Saskatchewan Water
Corporation.
SOLICITORS:
Thompson, Dorfman & Sweatman, Win-
nipeg, for applicants.
Deputy Attorney General of Canada for
respondent Minister of the Environment.
Gauley & Company, Saskatoon, Saskatche-
wan and Saskatchewan Water Corporation,
Moose Jaw, Saskatchewan, for intervenor
Saskatchewan Water Corporation.
The following are the reasons for order ren
dered in English by
MULDOON J.: At the earlier convocation of the
hearing of this matter, on November 30, 1989 [sub
nom. Canadian Wildlife Federation Inc. v.
Canada (Minister of the Environment), [ 1990] 1
F.C. 595], the Court ex mero motu struck out the
Saskatchewan Water Corporation (hereinafter
Sask. Water) in the capacity of respondent, and,
with the consent of the other parties, and upon the
application of Sask. Water, accorded it the status
of an intervenor. The reason for that order, alter
ing Sask. Water's status, was based on the specific
exclusion of the creature of a province from the
designation of "federal board, commission or other
tribunal" effected in section 2 of the Federal
Court Act, R.S.C., 1985, c. F-7. There the Court
noted that, were it not for that specific exclusion,
Sask. Water, as the holder of a federal licence
from the respondent Minister which has undertak
en to obey and observe all the relevant laws of
Canada, could well evince the status of a federal
board, commission or other tribunal, for the pur
pose of being impleaded as a respondent pursuant
to section 18 of the Federal Court Act. However,
because Sask. Water is a "body constituted by or
under a law of a province", it is specifically
excluded from the designation of "federal board,
commission or other tribunal" which otherwise
broadly is the sole object of both paragraphs (a)
and (b) of section 18 of the Federal Court Act.
Upon appeal against the Court's substantive
order pronounced on December 28, 1989 [(1989),
31 F.T.R. 1 (F.C.T.D.)], the particular division of
the Appeal Division which heard the appeal unani
mously restored Sask. Water to the status of
respondent, according to footnote 10 of its unani
mous reasons for judgment (A-48-90) rendered on
December 21, 1990 [[1991] 1 F.C. 641]. This the
Appeal Division did, not of its own motion, but on
the application of Sask. Water. It was an extreme
ly practical gesture by that panel of the Appeal
Division and one for which the law should long
have made provision "for the better administration
of the laws of Canada" pursuant to section 101 of
the Constitution Act, 1867 [30 & 31 Vict., c. 3
(U.K.) (as am. by Canada Act, 1982, 1982 c. 11
(U.K.), Schedule to the Constitution Act, 1982,
Item 1) [R.S.C., 1985, Appendix II, No. 5]].
Although section 19 of the Federal Court Act
comes to mind because, according to counsel for
Sask. Water, the Legislature of Saskatchewan has
passed an Act to comply with the terms of para
graph 19(a), if not also (b), those provisions do not
apply to the present case. This case would, how
ever, fit classically into section 25 of the Federal
Court Act, were it not for the absolutely clear and
imperative words of exclusion of Sask. Water from
proceedings pursuant to section 18, as mandated
by the designation of a "federal board, commission
or other tribunal", which is restrictively sculpted
in section 2.
The disposition of the Court of Appeal in the
Tetzlaff brothers' appeal above noted, puts this
Court in the invidious position of either disregard
ing the unanimous panel of the Appeal Division or
disregarding the unambiguous Act of Parliament.
The footnote by which the panel reported its resto
ration of the respondent status to Sask. Water runs
as follows [at page 649]:
10 By order made ex mero motu, dated November 30, 1989
[[1990] 1 F.C. 595 (T.D.)], Muldoon J. struck out Sask. Water
as a respondent for want of jurisdiction in this Court but
allowed Sask. Water to participate as an intervenor and amend
ed the style of cause accordingly. See Appeal Book, Tab 4
Sask. Water by notice of motion, dated November 19, 1990,
sought an order adding Sask. Water as a party respondent/
cross-appellant in these proceedings and this Court granted the
order requested relying on Friends of the Oldman River Socie
ty v. Canada (Minister of Transport), [1990] 2 F.C. 18 (C.A.),
at p. 52, and ordered the style of cause to be so amended. Sask.
Water also sought to adduce additional evidence pursuant to
Rule 1102 [Federal Court Rules, C.R.C., c. 663] but this was
denied.
The passage referred to in the unanimous
Oldman River [Friends of the Oldman River
Society v. Canada (Minister of Transport), [1990]
2 F.C. 18 (C.A.)] reasons for judgment, at page
52, runs thus:
THE PROVINCIAL CROWN
Two questions need be discussed at this point, namely, the
jurisdiction of the Court over Her Majesty in right of Alberta
as a party respondent and, secondly, whether that party is
immune from the provisions of the Navigable Waters Protec
tion Act.
Jurisdiction
The issue was raised before us but not in the Court below,
and derives from the decision of the Trial Division of Novem-
ber 30, 1989 in the Canadian Wildlife Federation Inc. v.
Canada (Minister of the Environment), [[1990] I F.C. 595
(T.D.)], matter. It was there held the Court lacked jurisdiction
over one of the respondents because, as a body constituted and
established by the laws of Saskatchewan, it was not a "federal
board, commission or other tribunal" as defined in section 2 of
the Federal Court Act. The question here is whether Her
Majesty the Queen in right of Alberta is to be similarly viewed
and, accordingly, whether we should find that the Court is
without jurisdiction over this party.
It seems to me that the point was settled by this Court in
Adidas (Can.) Ltd. v. Skoro Enterprises Ltd., [1971] F.C. 382,
which 1 interpret as holding that any person who might be
adversely affected by an order such as the one here sought may
be joined as a party to the proceeding "so that it can pursue
whatever remedy may be open to it by way of appeal there
from". In my opinion, the party in question is properly before
us as a party respondent.
First of all, it must be noted, and not as a mere
technicality, that the Crown in right of Alberta is
not an entity created by or under any provincial
legislation whatever, but rather created by the
Constitution concurrently with the creation, in
1905, of the province of Alberta. Each province
has the power to amend its own constitution (now
section 45 of the Constitution Act, 1982 [Schedule
B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C.,
1985, Appendix II, No. 44]]) except as regards the
office of Lieutenant Governor (now section 41,
paragraph (a)), that is to say, the Queen's repre
sentative. Such a distinction between the Crown in
right of a province, and a body such as Sask.
Water, created by provincial legislation is so
marked that in the case of the provincial Crown, it
is quite probable that section 25 of the Federal
Court Act could be invoked. Alas, nothing in
section 25, or elsewhere, proclaims that it over
rides the clear exception to what is a federal board,
commission or other tribunal for purposes of being
a respondent in proceedings brought pursuant to
section 18 of the Federal Court Act.
Next, the decision announced in footnote 10
must be traced back for its basis to Adidas (Can.)
Ltd. v. Skoro Enterprises Ltd., [1971] F.C. 382
(C.A.), since the judgment in the Oldman River
case, at page 52, does not deal with the status of a
body created by provincial legislation, as is Sask.
Water. In the Adidas case, above noted, the
Appeal Division characterized the proceedings as
having been brought by Skoro for a mandamus
directing the Deputy Minister of National Reve
nue to admit into Canada certain shoes belonging
to Skoro and held by customs officials. The Court
there noted that [at page 383]:
Jurisdiction to entertain such a proceeding is conferred on
the Trial Division by section 18 of the Federal Court Act and
the procedure for its exercise is prescribed by Rule 603.
One will search in vain for any sign that the Court
in the Adidas case ever adverted to the definition
and its exception in section 2 of a "federal board,
commission or other tribunal" which is the specific
target for relief in section 18 proceedings, accord
ing to that very section. One must wonder what
section 18 relief in the nature of mandamus could
be accorded against the applicant's competitor,
Adidas, and to what claim for relief it could be
called upon to respond in addition to the direct
response of the properly impleaded deputy minis
ter. With utmost respect to the learned Judges who
composed that division of the Federal Court of
Appeal, the Adidas case appears to have been
decided per incuriam. In any event the putative
respondent was not a body like a "federal board,
commission or other tribunal", nor yet Sask.
Water.
Indeed at page 385, the Court indicated that the
particular "principles for joinder of parties which
[Rule 1716] prescribes should be applied by analo
gy pursuant to Rule 5". That Rule is thereupon
recited:
Rule 5. In any proceeding in the Court where any matter
arises not otherwise provided for by any provision in any Act of
the Parliament of Canada or by any general rule or order of the
Court (except this rule), the practice and procedure shall be
determined by the Court (either on a preliminary motion for
directions, or after the event if no such motion has been made)
for the particular matter by analogy
(a) to the other provisions of these Rules, or
(b) to the practice and procedure in force for similar pro
ceedings in the courts of that province to which the subject
matter of the proceedings most particularly relates,
whichever is, in the opinion of the Court, most appropriate in
the circumstances. [Emphasis not in original text.]
Clearly, as Rule 5 itself states, it cannot be
invoked where any matter arises which is other
wise provided for by any provision in any Act of
Parliament. That Sask. Water cannot be sued
pursuant to section 18 is indeed provided in section
2 of the Federal Court Act, a genuine Act of
Parliament. It needs no great elaboration to assert
that any rule of Court which is, operates or is
interpreted to be, repugnant or otherwise contra-
dictory to an Act of Parliament is, to such extent,
an ultra vires rule of Court.
As for Rule 1716, it provides for the joinder of
parties in an action, as noted at page 734 of
Federal Court Practice 1990, Sgayias, Kinnear,
Rennie & Saunders (Carswell) and it "applies
only to actions and not to motions or other pro
ceedings." Cited in support are: Canadian Red
Cross Society v. Simpsons Limited, [1983] 2 F.C.
372 (T.D.) (Mahoney J. [as he then was]); Apotex
Inc. v. Canada (Attorney General), [1986] 2 F.C.
233 (T.D.) (Walsh J.), upheld unanimously with
out written reasons by the Appeal Division (Heald,
Urie & Mahoney JJ.A.), (1986), 10 C.P.R. (3d)
288. Rule 1716 has no application in these pro
ceedings pursuant to section 18 of the Federal
Court Act.
There is a copious jurisprudence in this Court to
the effect that no person can be added as a party
respondent over whom the Court could have exer
cised no jurisdiction in the first place. That propo
sition seems to be abundantly obvious, for if the
Court could not exercise jurisdiction over a person
or corporation ab initio and therefore could not
give an appropriate remedy in favour of the appli
cant, the proposed respondent can hardly be
winked or wished under the Court's jurisdiction
even if it asks to be impleaded as a respondent as
does Sask. Water in this instance.
The obvious consequence of attempting to imp-
lead a party over whom the Court can exercise no
jurisdiction can be seen in Union Oil Co. of
Canada Ltd. v. The Queen, [1976] 1 F.C. 74
(C.A.) which the Supreme Court of Canada
upheld with costs [1976] 2 S.C.R. v. So also was
the result in the section 18 application of Carruth-
ers v. Therapeutic Abortion Committees, [1983] 2
F.C. 581 (T.D.) (Collier J.), upheld unanimously
on appeal, (1983), 6 D.L.R. (4th) 57, where Mr.
Justice Heald wrote (at pages 63-64):
It is clear from the record that the entity which created the
T.A.C. is the board of directors of the hospital through a
resolution of the board. The board of directors derives its
overall authority from the provincial legislation and its resolu
tions are authorized by the general law governing societies.
Thus, t agree with the trial judge when he said that: "The
authority, under which the therapeutic abortion committee acts
and the mechanisms of setting it up, comes from provincial
law." I also agree with counsel for the respondent that when
one is considering the exception to the definition of "federal
board, commission or other tribunal" in s. 2 of the Federal
Court Act, the question of the powers of the tribunal are not in
issue since to bring the subject tribunal within that definition
initially, the exercise or purported exercise of federal powers is
a condition precedent. I have therefore concluded that the
appellants' submissions on this issue must be rejected.
I find no substance in [counsel's further constitutional] sub
mission. The T.A.C. is constituted, established and functions
under the law of the Province of British Columbia and more
specifically, pursuant to provisions in two provincial statutes,
the Societies Act and the Hospitals Act. The regulation and
control of hospitals is clearly a provincial matter. The general
subject of the performing of abortions is also a provincial
matter subject to any prohibitions of the criminal law. Accord
ingly, I find no constitutional impediment to the appointment
of therapeutic abortion committees by the boards of directors of
hospitals in a province.
For all of the above reasons, I have concluded that the appeal
should be dismissed with costs.
There that committee, and here Sask. Water, are
not federal boards, commissions or other tribunals
because they are specifically exempted from the
definition of such, by unambiguous words in sec
tion 2 of the Federal Court Act.
The same consequence came about in Martinoff
v. Gossen, [1978] 2 F.C. 537 (T.D.), (Collier J.),
affirmed without written reasons by the Appeal
Division as reported at (1979), 46 C.C.C. (2d)
368n. And so it was similarly in Halco Inc. v.
Sandrin Brothers (1968) Ltd., A-582-85 (February
17, 1986) where Mr. Justice Hugessen said for the
unanimous Court, in an action where the same
principle emerged [at pages 1-2]:
Respondent has sued for damages resulting from a fire
occurring during certain repair work carried out by appellant
on respondent's ship. Appellant alleges that the damage was
due to a faulty fire extinguisher supplied to the ship by Toronto
Fire Control Company Limited. The Trial Division refused
appellant's application to have Toronto Fire Control joined as a
party defendant, hence the present appeal.
Appellant applied to add Toronto Fire Control as a defend
ant pursuant to Rule 1716 because, according to counsel, there
might be a jurisdictional problem, in proceeding in the more
usual way and taking third party proceedings against that
company pursuant to Rule 1726.
We cannot agree with this reasoning. If indeed there is a
jurisdictional problem as between defendant and Toronto Fire
Control such as to prevent third party proceedings being taken
in this Court, exactly the same problem would prevent Toronto
Fire Control from being added as a defendant. The form of
proceedings cannot cure perceived defects of jurisdiction.
So one is left in a situation where the law,
section 2 of the Act, is crystal clear, but it does not
do justice to the true holder of a federal licence,
Sask. Water, because the latter is excluded as a
respondent by that crystal clear law.
Sask. Water should be permitted to join in these
proceedings in order to defend its federal licence,
and to appeal if it be so inclined, against any order
which impinges upon the rights accorded to it
under its federal licence. It would attorn to the
jurisdiction of this Court, if only the very words of
the Act of Parliament did not specifically forbid it
and exclude it. Although the Federal Court Act
has recently been before Parliament for consider
ation, the situation presented here in the burgeon
ing field of federal environmental law, could per
haps merit special and immediate further
consideration.
In this situation the Court will once again
accord intervenor status to Sask. Water. Sask.
Water has, by counsel, undertaken to pay any
costs awarded against it. This much was concluded
at the outset of the hearing.
In the absence of any specific rule, however,
that the applicants should be liable to pay costs to
Sask. Water, when their section 18 application is
properly framed only against the Minister, and it
is only as against the Minister that they could be
accorded section-18-type relief, the Tetzlaff broth
ers shall not be liable to pay any of Sask. Water's
costs. This is a makeshift situation.
Rule 5 permits the Court in such a situation of
intervention by necessity (but not otherwise, by
section 2's exclusion provided in the Act), to deter-
mine the practice and procedure by analogy to the
other provisions of these Rules or, here, to the
Saskatchewan practice. Although asked by the
Court to do so, counsel has not directed the
Court's attention to the analogous practice and
procedure in force in Saskatchewan, but indicates
that no specific jurisprudence was found except on
control of the Court's own process.
In Fishing Vessel Owners' Assn. of B.C. v. A.G.
Can. (1985), 1 C.P.C. (2d) 312, Mr. Justice Addy,
on motion to the Appeal Division of this Court,
invoked Rule 5 to permit the Pacific Gillnetters
Association to intervene for the purposes of an
appeal from an interlocutory order. Addy J. made
the analogy with Rule 1010, an admiralty rule
permitting intervention in an action in rem.
Paragraph (3) provides:
Rule 1010....
(3) By an order under this Rule, or a subsequent order
adding to or changing the directions therein, the Court shall
define the intervenor's rights to take part in the action.
In addition to the intervention on the same terms
as in the original section 18 proceedings in Novem-
ber, 1989, the Court now, by a subsequent order,
will define Sask. Water's rights to take part in
these proceedings by adding the right to appeal an
adverse order impinging upon its rights accorded
by its federal licence.
The Court fully recognizes the ad hoc nature of
this disposition which in effect circumvents (at
Sask. Water's request, of course) the Court's clear,
specific, statutory absence of jurisdiction to
countenance the impleading of Sask. Water, a
"body constituted or established by or under a law
of a province", in these section 18 proceedings
where no relief can be claimed from or accorded
against Sask. Water. This sort of problem should
be solved by legislation. In any event, unless this
definition of Sask. Water's rights to take part in
this litigation be struck down by the Appeal Divi
sion, which, after all has defied the provision defin
ing "federal board, commission or other tribunal"
already on behalf of this intervenor, then Sask.
Water's extraordinary difficulty with Parliament's
clear unambiguous legislative text will be assuaged
for this present litigation. This disposition will not
necessarily avail should Sask. Water seek further
leave to appeal to the Supreme Court of Canada:
Corporation of the City of Toronto v. Morencie,
[1989] 1 S.C.R. vii.
The above disposition may seem, to some, a
distinction without a difference. In some sense it is
a semantic solution, but semantic or not all judges
of both divisions of the Court are sworn to uphold
the rule of law, and that means that the judges
cannot simply defy a statutory imperative which
they think inconvenient, even if it is inconvenient,
and in the circumstances, productive of unfortu
nate consequences.
In exercising its inherent jurisdiction to control
its own discretionary process and proceedings here,
the Court recognizes that there are few, if any,
precedents in this particular field of cross-jurisdic
tional, federal environmental law. Yet, even if the
Federal Court Act be not amended to regulate the
problem identified here, which the applicants do
not recognize as such, this should be the last
occasion on which the Court's discretion ought to
be exercised in this ad hoc manner. What ought to
transpire in future matters in which the federal
licensee is immunized from section 18 proceedings,
as is Sask. Water here, is what follows. The appli
cants either spontaneously, or upon direction by
the Court, ought to serve the licensee with copies
of their section 18 process in a timely fashion.
Then the licensee, if so advised, could itself com
mence a parallel section 18 proceeding against the
federal authority for, say, mandamus or prohibi
tion composed or configured in an appropriate
formulation limited only by the gifts of imagina
tion, resilience and resourcefulness of the licensee's
counsel. The licensee would simultaneously seek to
have its section 18 application heard at the same
time as the applicants' motion. In such circum
stances, the immune licensee would be an original
full party, an applicant, in its own right and the
problem identified here would be obviated. Does
that seem awkward and circuitous? It is: but
unless the Act be reformed it is better to light a
candle than to curse the darkness.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.