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T-3536-81
The Dene Nation and The Metis Association of the Northwest Territories (Plaintiffs)
v.
The Queen (Defendant)
Trial Division, Dubé J.—Ottawa, June 8 and 9, 1982.
Practice — Parties — Application for joinder as party defendant — Rights of licensee affected by decision — Court has no jurisdiction where Act supports no cause of action against proposed defendant — Application dismissed — Fed eral Court Rule 1716(2)(6) — Northern Inland Waters Act,
R.S.C. 1970 (P' Supp.), c. 28 Northern Inland Waters Regulations, C.R.C., c. 1234, s. 11.
This is an application by Esso Resources Canada Limited for an order adding the corporation as party defendant in the action. Plaintiffs are seeking a declaration that sections of the Northern Inland Waters Act are ultra vires. Applicant con tends that the relief sought would affect its rights to water used in the production of oil acquired under impugned sections of the Act.
Held, the application is dismissed. A person can be joined as a party defendant if his legal rights might be affected by the outcome of the case, and if the Court has jurisdiction to entertain the action against the proposed defendant. There must be "existing and applicable federal law" to support such an action. The applicant has not shown under what section of the Act, and for what purpose the plaintiffs could direct proceedings against the applicant. The sole issue is the validity of some sections of the Act and Regulations, and both the applicant and the defendant support the validity of the legisla tion and of any authorizations, or licences issued thereunder.
CASES JUDICIALLY CONSIDERED
APPLIED:
Alda Enterprises Limited v. The Queen et al., (1978] 2 F.C. 106 (F.C.T.D.); McNamara Construction (Western) Limited et al. v. The Queen et al., [1977] 2 S.C.R. 654; Quebec North Shore Paper Company et al. v. Canadian Pacific Limited et al., [1977] 2 S.C.R. 1054.
REFERRED TO:
Chitty et al. v. Canadian Radio-television and Telecom munications Commission, [1978] 1 F.C. 830 (F.C.T.D.); Waterside Cargo Cooperative v. National Harbours Board (1979), 107 D.L.R. (3d) 576 (F.C.T.D.).
APPLICATION. COUNSEL:
S. T. Goudge, Q.C. for plaintiffs. No one appearing for defendant.
R. C. Pittman for applicant, Esso Resources Canada Limited.
SOLICITORS:
Cameron, Brewin & Scott, Toronto, for plaintiffs.
Deputy Attorney General of Canada for defendant.
Legal Department, Esso Resources Canada Limited, Calgary, for applicant Esso Resources Canada Limited.
The following are the reasons for order ren dered in English by
DuBÉ J.: This motion is brought on behalf of Esso Resources Canada Limited of Calgary, Alberta, ("Esso"), for an order pursuant to Rule 1716 or Rule 5 directing that the applicant be added as a party defendant to this action.
The statement of claim filed on July 6, 1981 seeks a declaration that the creation of the office of controller appointed under the Northern Inland Waters Act, R.S.C. 1970 (1st Supp.), c. 28, is ultra vires the Governor in Council; that section 11 of the Regulations passed under the said Act is also ultra vires; that authorization N3A6-0791 to Esso relative to the construction of causeways, and authorization N3A3-0093 to Esso relating to refin ery injection, in the Northwest Territories, alleged ly detrimental to the members of the plaintiffs, are illegal and without lawful foundation.
By way of an affidavit in support of the motion Esso's project manager says that the water used pursuant to the said authorizations is critical to Esso in the production of oil by water flood, that the water so used does not have any detrimental effect upon the plaintiff associations, and that Esso has a vital interest in protecting its rights and in disputing such alleged detrimental effect to the plaintiffs.
Under Rule 1716(2)(b) the Court may at any stage of an action order any person, who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all
matters and dispute in the action may be effectual ly and completely determined, to be added as a party. The defendant Her Majesty The Queen was not represented at the hearing of this motion but her solicitor informed Esso's counsel that she would consent to the order joining the applicant as defendant.
A person seeking to be joined as a party defend ant to an action ought to be so joined if he can show that some of his legal rights might be affect ed by the outcome of the case, and if the Court has jurisdiction in the matter over the proposed defendant. Of course, the mere consent of the applicant to be joined and the agreement of the defendant does not create jurisdiction where none exists.
At the outset of the hearing of this application I expressed grave doubts that this Court would have jurisdiction to entertain this action by the plain tiffs against Esso. While this Court undoubtedly has the competence to hear an action against the Queen in right of Canada seeking a determination as to whether or not certain sections of the North ern Inland Waters Act or Regulations passed thereunder are ultra vires, it does not follow that subjects may take action against one another under the provisions of that Act before the Federal Court of Canada. In Alda Enterprises Limited v. The Queen et al.' my brother Collier J. held that while the plaintiff may have had an action for damages against the Crown before this Court, it did not show that its proceedings against the Town of Faro were supported by "existing and applicable federal law" and therefore could not obtain a judgment against the Town. He suggested a very practical test to determine the question of jurisdic tion over one particular defendant [at pages 110-1111:
A sometimes useful test to apply in approaching the question of jurisdiction is to see whether this Court would have jurisdic tion if the claim advanced against one particular defendant stood alone and was not joined in an action against other defendants over whom there properly is jurisdiction. When that test is used here in respect of the plaintiff's claim against the
' Alda Enterprises Limited v. The Queen, Commissioner of the Yukon Territory, Government of the Yukon Territory, and Town of Faro and Cyprus Anvil Mining Corporation, [1978] 2 F.C. 106 (F.C.T.D.).
Town of Faro, the answer must be, No. Mr. Parker frankly conceded that answer. He said that, in those circumstances, jurisdiction would lie with the Supreme Court of the Yukon Territory. I assume the applicable law then would be the statutory and common law of the territory.
In Waterside Cargo Cooperative v. National Harbours Board 2 the Court refused to join a party as defendant to an action where no cause of action based on federal law can be asserted against it. Collier J. underlined that there was no procedure under the Federal Court Rules whereby persons whose rights may be affected, but against whom no cause of action lies, can be added as a party defendant 3 .
In the course of the hearing, counsel for Esso referred to Chitty et al. v. Canadian Radio-televi sion and Telecommunications Commission 4 . That was also an application for an order adding a defendant (actually two defendants) to an action. The action had been launched by members of a community association for a declaration that the Broadcasting Act, R.S.C. 1970, c. B-11 does not allow the CRTC to decide on applications for transfer of control over cable television licenses. The applicants claimed that the declaratory relief sought by the plaintiffs, if granted, would seriously affect their legal rights and, in effect, would sub ject their licenses to challenges by the plaintiffs and others. The jurisdictional aspect of the matter was not raised and I held that, in order to ensure that the action be effectually and completely determined, the two applicants be joined as parties defendant in the action.
2 (1979), 107 D.L.R. (3d) 576 (F.C.T.D.).
3 Counsel for the applicant invoked Rule 5 (the gap rule) but did not show that the Northwest Territories Rules of Court [The Supreme Court Rules, SOR/79-768] provided such a procedure. Northwest Territories Rule 48 is substantially simi lar to our Rule 1716.
Stephen Chitty, Dorothia Atwater, Wayne Kerr, Sharron Lang, David Coulson, Ulla Sorrenson, Peter Hay and The Canadian Broadcasting League v. Canadian Radio-television and Telecommunications Commission, [1978] 1 F.C. 830 (F.C.T.D.).
That decision was made before the full impact of two Supreme Court of Canada decisions affect ing the jurisdiction of the Federal Court, namely McNamara Construction (Western) Limited et al. v. The Queen et a1. 5 and Quebec North Shore Paper Company et al. v. Canadian Pacific Limited et a1. 6 , both of which decisions were raised by counsel in the Alda case. The gist of the Supreme Court decisions is that there must be "existing and applicable federal law" which can be invoked to support any proceedings before this Court. Had the matter been raised in the Chitty case, one might have argued that the Broadcasting Act was sufficient federal legislation to support an action against the CRTC and the two parties licensed under that Act.
The question here is whether the Northern Inland Waters Act is sufficient federal legislation to support an action, not only against the Queen with a view to obtain certain declarations as to the validity of some sections of the Act and the Regu lations, but also against a licensee, such as Esso, under the Act. In other words, could the Dene Nation and the Metis Association properly launch an action in this Court against Esso, apart from any action they may have against the Queen? Esso has certainly not shown to my satisfaction under what section of the Act, and for what purpose, the plaintiffs could direct any such proceedings against Esso 7 . The sole issue that will be deter mined at the trial of this action will be the validity of some sections of the Regulations and the Act. On that issue the interests of Esso are not different from those of Her Majesty The Queen: both sup
s McNamara Construction (Western) Limited and Fidelity Insurance Company of Canada and Her Majesty The Queen and J. Stevenson & Associates and Stevenson, Raines, Barrett, Hutton, Seaton & Partners and Lockerbie & Hole Western Limited and J. Stevenson & Associates and Stevenson, Raines, Barrett, Hutton, Seaton & Partners and Her Majesty The Queen, [1977] 2 S.C.R. 654.
6 Quebec North Shore Paper Company and Quebec and Ontario Transportation Company Limited and Canadian Pacific Limited and Incan Ships Limited, [1977] 2 S.C.R. 1054.
7 The Act creates offences with respect to persons who violate certain sections thereof, but subsection 37(2) provides that no civil remedy is suspended or affected by reason of those offences. Any such civil remedy would be dispensed by the local courts, not the Federal Court.
port the validity of the legislation and of any authorizations, or licenses, issued thereunder.
This application therefore to join the applicant as defendant is denied with costs.
ORDER
The application is denied with costs.
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