T-2102-89
Canadian Wildlife Federation Inc., Gordon Geske
and Joseph Dolecki (Applicants)
v.
Minister of the Environment and Saskatchewan
Water Corporation (Respondents)
INDEXED AS: CANADIAN WILDLIFE FEDERATION INC. V.
CANADA (MINISTER OF THE ENVIRONMENT) (T.D.)
Trial Division, Muldoon J.—Winnipeg, November
29 and 30, 1989.
Federal Court jurisdiction — S. 18 Federal Court Act
application — Court questioning jurisdiction over respondent,
Saskatchewan Water Corporation — Relief could not be
accorded against Corporation — Although 2 of 3 essential
requirements for jurisdiction as set out by Supreme Court of
Canada in ITO — International Terminal Operators v. Miida
Electronics Inc. met, requirement of statutory grant of jurisdi-
cation by Parliament not met — Saskatchewan Water Corpo
ration established by provincial law — Falling within excep
tion carved out of definition 'federal board, commission or
other tribunal" in s. 2 Federal Court Act — S.C.C. decisions
construing s. 101 Constitution Act, 1867, dwelling on meaning
of "laws of Canada" but ignoring meaning of "better"
administration thereof and non obstante provision.
Practice — Parties — Standing — Court ex mero motu
questioning jurisdiction over Saskatchewan Water Corporation
and latter's right to be heard if could not lawfully be implead-
ed — Corporation could not be impleaded as respondent as
within s. 2 Federal Court Act exception — Order nunc pro
tunc, on consent, designating Corporation as intervenor per
mitting it to defend federal licence granted to it.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.)
[R.S.C. 1970, Appendix II, No. 5] (as am. by Canada
Act 1982, 1982, c. 11 (U.K.), Schedule to the Consti
tution Act, 1982, Item 1) ss. 92(14), 101.
Federal Court Act, R.S.C., 1985, c. F-7, ss. 2, 18.
International River Improvements Act, R.S.C., 1985, c.
1-20.
Environmental Assessment and Review Process Guide
lines Order, SOR/84-467.
CASES JUDICIALLY CONSIDERED
FOLLOWED:
ITO—International Terminal Operators Ltd. v. Miida
Electronics Inc. et al., [1986] 1 S.C.R. 752; (1986), 28
D.L.R. (4th) 641; 34 B.L.R. 251; 68 N.R. 241.
CONSIDERED:
McNamara Construction (Western) Ltd. et al. v. The
Queen, [1977] 2 S.C.R. 654; (1977), 75 D.L.R. (3d) 273;
13 N.R. 181; Quebec North Shore Paper Co. et al. v.
Canadian Pacific Ltd. et al., [1977] 2 S.C.R 1054;
(1976), 9 N.R. 471.
REFERRED TO:
Canadian Wildlife Federation Inc. v. Canada (Minister
of the Environment), [1989] 3 F.C. 309; [1989] 4
W.W.R. 526; (1989), 26 F.T.R. 245 (F.C.T.D.); Canadi-
an Wildlife Federation Inc. v. Canada (Minister of the
Environment) (1989), 99 N.R. 72 (F.C.A.).
COUNSEL:
Brian A. Crane and Martin W. Mason for
applicants.
Brian J. Saunders and Craig J. Henderson
for respondent Minister of the Environment.
D. E. Gauley and Clifford B. Wheatley for
respondent Saskatchewan Water Corporation.
SOLICITORS:
Gowling, Strathy & Henderson, Ottawa, for
applicants.
Deputy Attorney General of Canada for
respondent Minister of the Environment.
Gauley & Co., Saskatoon and Clifford B.
Wheatley, Moose Jaw, Saskatchewan, for
respondent Saskatchewan Water Corporation.
The following are the reasons for order ren
dered in English by
MULDOON J.: This proceeding pursuant to sec
tion 18 of the Federal Court Act, R.S.C., 1985, c.
F-7 was instituted by the applicants against the
Minister of the Environment and the Saskatche-
wan Water Corporation as respondents. An earlier
case under section 18 between the same parties
(T-80-89) [[1989] 3 F.C. 309; [1989] 4 W.W.R.
526; (1989), 26 F.T.R. 245] resulted in the setting
aside of a licence under the International River
Improvements Act, R.S.C., 1985, c. I-20 to build
dams and to carry out other works on the Souris
River system in Saskatchewan. That licence was
issued by the respondent Minister to the Saskatch-
ewan Water Corporation, and its setting aside was
subsequently upheld by a unanimous decision of
this Court's Appeal Division (A-228-89) [(1989),
99 N.R. 72].
In the present case at bar, the Court ex mero
motu, called into question the Court's jurisdiction
over the Saskatchewan Water Corporation and
hence that Corporation's right to be heard if it
could not be lawfully impleaded.
This Court's jurisdiction was defined generally
by the majority judgment of the Supreme Court of
Canada in the case of ITO—International Termi
nal Operators Ltd. v. Miida Electronics Inc. et al.,
[1986] 1 S.C.R. 752; (1986), 28 D.L.R. (4th) 641;
34 B.L.R. 251; 68 N.R. 241. There at page 766,
Mr. Justice McIntyre is reported as distilling from
two previous decisions of the Supreme Court, the
essential requirements to support the jurisdiction
of this Court in a lawsuit in which damages are
claimed. The two previous decisions which he cited
are McNamara Construction (Western) Ltd. et al.
v. The Queen, [1977] 2 S.C.R. 654; (1977), 75
D.L.R. (3d) 273; 13 N.R. 81; and Quebec North
Shore Paper Co. et al. v. Canadian Pacific Ltd. et
al., [1977] 2 S.C.R. 1054; (1976), 9 N.R. 471. In
both cases the Supreme Court of Canada under
took to construe section 101 of the Constitution
Act, 1867 [30 & 31 Vict., c. 3 (U.K.) [R.S.C.
1970, Appendix II, No. 5] (as am. by Canada Act
1982, 1982, c. 11 (U.K.), Schedule to the Consti
tution Act, 1982, Item 1)]. It runs as follows:
101. The Parliament of Canada may, notwithstanding any
thing in this Act, from Time to Time provide for the Constitu
tion, Maintenance and Organization of a General Court of
Appeal for Canada, and for the Establishment of any addition
al Courts for the better Administration of the Laws of Canada.
In the two earlier Supreme Court cases cited, the
Court's judgments give scrupulous and exacting
attention to the meaning of the expression "the
laws of Canada" but are notoriously silent on the
meaning of the "better" administration thereof
and they completely ignore the expression "not-
withstanding anything in this Act". It will be
recalled that the power of the latter expression was
ample to work Canada's autonomy from the juris
diction of the Judicial Committee of the Privy
Council to adjudicate appeals from Canada. It was
held that such non obstante provision accorded
Parliament the authority to override the constitu
tional division of powers particularly in regard to
head 14 of section 92.
However the distilled essential requirements of
this Court's jurisdiction recited by McIntyre J. in
the ITO case, taken in inverse order for present
purposes are as follows [at page 766 S.C.R.]:
—The law on which the case is based must be "a law of
Canada" as the phrase is used in s. 101 of the Constitution Act,
1867.
—There must be an existing body of federal law which is
essential to the disposition of the case and which nourishes the
statutory grant of jurisdiction.
The above two criteria are easily met here, for this
case turns on the provisions of the International
River Improvements Act and the Environmental
Assessment and Review Process Guidelines Order,
SOR/84-467 (EARP Guideliens Order), both of
which are evidently "laws of Canada" for whose
better (not merely "due", and certainly not "crip-
pled") administration this Court is established.
It might certainly be argued that the better
administration of those laws could well counte
nance the impleading of the Saskatchewan Water
Corporation whose licence was purportedly issued
thereunder and which, by the terms of such
licence, has agreed to respect and abide by all
relevant laws of Canada pertaining to its Souris
River basin dams and works.
The remaining requirement runs thus:
—There must be a statutory grant of jurisdiction by the federal
Parliament.
However, Parliament, although apparently able to
grant such jurisdiction on the strength of the "not-
withstanding" provision in section 101, has
stopped short of doing so. The relief sought here
can be accorded under section 18 of the Federal
Court Act "against any federal board, commission
or other tribunal." This expression is defined, in
section 2 of the Federal Court Act to mean:
2....
... any body or any person or persons having, exercising or
purporting to exercise jurisdiction or powers conferred by or
under an Act of Parliament, other than any such body
constituted or established by or under a law of a province or
any such person or persons appointed under or in accordance
with a law of a province or ... (Emphasis not in original
text.)
The Saskatchewan Water Corporation is a body
constituted and established by a law of the Prov
ince of Saskatchewan and, therefore, relief cannot
be accorded against it pursuant to section 18 of the
Federal Court Act. It ought not to be here imp-
leaded in the capacity of a respondent, because of
the exception for such bodies which Parliament
carved out of the definition of a "federal board,
commission or other tribunal" in section 2 of the
Federal Court Act.
In light of the above determination, all the other
parties by their respective counsel agreed to treat
the Saskatchewan Water Corporation an an
intervener to permit it to appear by counsel in the
present case so that it may make its submissions in
defence of the federal licence which it has been
granted. On that basis, the Court made an order
nunc pro tunc in order to accommodate the parties
and to amend the style of cause to designate the
corporation as an intervener. All without costs.
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.