A-224-90
Her Majesty the Queen in Right of Alberta
(Appellant)
v.
The Edmonton Friends of the North Environmen
tal Society, The Peace River Environmental
Society A.K.A. Friends of the Peace, The Metis
Association of the Northwest Territories, The
Friends of the Athabasca Environmental Associa
tion, The Northern Light Society, and the Dene
Nation (Respondents)
INDEXED AS: EDMONTON FRIENDS OF THE NORTH ENVIRON
MENTAL SOCIETY V. CANADA (MINISTER OF WESTERN ECO
NOMIC DIVERSIFICATION) (C.A.)
Court of Appeal, Iacobucci C.J., Heald and Stone
JJ.A.—Edmonton, September 10; Ottawa, Sep-
tember 28, 1990.
Practice — Parties — Joinder — Order adding Crown in
right of Alberta as party respondent imposing conditions on
cross-examination, pleadings, time frames, and costs —
Status of party and intervenor different — R. 1716(2)(6)
permitting addition of parties on such terms as Court thinks
just — Order not just and reasonable because conditions
tantamount to reducing status to that of intervenor — Discre
tion under R. 1716(2)(b) not absolute, but subject to reason
ableness — Conditions deleted — Joinder proper, though no
relief claimed against provincial Crown — Party whose rights
directly affected by litigation should be able to appeal.
Environment — Order joining provincial Crown as party
respondent to s. 18 proceedings seeking to quash decisions of
federal Ministers re: construction of pulp mill — Provincial
rights as owner of railway bridge and spur and of natural
resources directly affected by litigation — Joinder proper,
although no relief claimed against Province, as should have
right of appeal.
This was an appeal from an order adding the appellant as a
respondent subject to very strict restrictions as to cross-exami
nation, pleadings, time frames and costs. In imposing condi
tions, the Trial Judge relied by way of analogy on Rule
1716(2)(b), which permits the addition of parties "on such
terms as [the Court] thinks just". The appellant was joined
based on a belief that it "ought to have been joined" and to give
it appeal rights.
The proceedings seek to quash decisions of several federal
Ministers pertaining to the construction of a pulp mill and
related facilities on the Peace River. The appellant asserted a
direct interest in the outcome of the proceedings as owner of a
railway spur and bridge across the Peace River being built
incidentally to the construction of the pulp mill and as owner of
natural resources in the province in respect of which the
appellant enjoys exclusive constitutional jurisdiction, including
the right to issue permits, licences and to generally manage
these resources. The spur had been largely completed and
bridge construction had commenced.
The issues were whether the Trial Judge, in imposing condi
tions, acted within the discretion conferred by Rule 1716(2)(b)
and (by way of cross-appeal) whether the appellant should have
been joined at all as respondent, since no relief was claimed
against the Crown in right of Alberta and the Trial Division
lacks jurisdiction to grant relief against Her under the invoked
legislation.
Held, the appeal should be allowed and the cross-appeal
dismissed.
The order was not "just and reasonable" and the conditions
imposed thereby should be deleted. Rule 1716 is not a rule for
joining an intervenor, but for joining a party. There is a
significant difference between the position of an intervenor and
a party. The discretion conferred by Rule 1716(2)(b), while
broad, is not absolute, but is subject to being exercised upon
reasonable grounds. The Judge erred in imposing conditions
which were so fundamental as to reduce the appellant's role
almost to that of an intervenor rather than of a full party.
The appellant was properly joined even though no relief was
claimed against Her. Parties have been joined against whom no
relief was sought and, as here, where a party's rights will be
directly affected by the outcome of the litigation so that he
should have a right of appeal.
The possible enlargement and delay of the proceedings
caused by the joinder of the appellant are consequences which
may normally flow from any legal proceedings in which a third
party's rights will be directly affected by the outcome.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Environmental Assessment and Review Process Guide
lines Order, SOR/84-467.
Federal Court Act, R.S.C., 1985, c. F-7, s. 18.
Federal Court Rules, C.R.C., c. 663, R. 1716(2)(b).
Navigable Waters Protection Act, R.S.C., 1985, c. N-22.
CASES JUDICIALLY CONSIDERED
APPLIED:
Adidas (Can.) Ltd. v. Skoro Enterprises Ltd., [1971]
F.C. 382; (1971), 12 C.P.R. (2d) 67 (C.A.).
REFERRED TO:
Corporation of the City of Toronto v. Morencie, [ 1989] 1
S.C.R. vii; Halton Community Credit Union Ltd. v. ICL
Computers Can. Ltd. (1985), 3 C.P.C. (2d) 252 (Ont.
C.A.); Performing Rights Organization of Canada Ltd.
v. Canadian Broadcasting Corporation (1986), 7 C.P.R.
(3d) 433; 64 N.R. 330 (F.C.A.); International Business
Machines Corporation v. Xerox of Canada Limited and
Xerox Corporation (1977), 16 N.R. 355 (F.C.A.);
Algonquin Mercantile Corp. v. Dart Indust. Can. Ltd.
(1984), 5 C.I.P.R. 40; 3 C.P.R. (3d) 143 (F.C.A.);
Ayscough v. Bullar (1889), 41 Ch.D. 341 (C.A.); Attor-
ney-General v. Pontypridd Waterworks Company,
[1908] 1 Ch. 388 (Ch.D.); Dene Nation v. The Queen,
[1983] 1 F.C. 146 (T.D.); Friends of the Oldman River
Society v. Canada (Minister of Transport), [1990] 2 F.C.
18 (C.A.); Curtner v. Circuit, [1968] 2 Q.B. 587 (C.A.);
Amon v. Raphael Tuck & Sons Ltd., [1956] I Q.B. 357
(Q.B.D.).
COUNSEL:
Andrea B. Moen for appellant.
John J. Gill for respondents The Edmonton
Friends of the North Environmental Society,
The Peace River Environmental Society
A.K.A. Friends of the Peace, The Metis Asso
ciation of the Northwest Territories, The
Friends of the Athabasca Environmental
Association, The Northern Light Society, and
the Dene Nation.
P. John Landry for Daishowa Canada Co.
Ltd.
Ingrid C. Hutton, Q.C. for Minister of West
ern Economic Diversification, Minister of
Transport, Minister of Fisheries and Oceans
and Minister of Environment.
SOLICITORS:
Milner & Steer, Edmonton, for appellant.
McCuaig, Desrochers, Edmonton, for
respondents The Edmonton Friends of the
North Environmental Society, The Peace
River Environmental Society A.K.A. Friends
of the Peace, The Metis Association of the
Northwest Territories, The Friends of the
Athabasca Environmental Association, The
Northern Light Society, and the Dene
Nation.
Davis & Company, Vancouver, for Daishowa
Canada Co. Ltd.
Deputy Attorney General of Canada for Min
ister of Western Economic Diversification,
Minister of Transport, Minister of Fisheries
and Oceans and Minister of Environment.
Deputy Minister of Justice, Government of
the Northwest Territories, Yellowknife, for
the Government of the Northwest Territories.
The following are the reasons for judgment
rendered in English by
STONE J.A.: This is an appeal from an order
made by the Trial Division on March 13, 1990
[reasons for which reported at (1990), 34 F.T.R.
137] by which the appellant was added as a party
respondent in section 18 [Federal Court Act,
R.S.C., 1985, c. F-7] proceedings commenced by
way of an originating notice of motion filed on
February 16, 1990. The appellant had applied to
that Division to be joined in those proceedings as
a party respondent or, alternatively, as an
intervenor.
The relief sought in those proceedings are orders
in the nature of certiorari and mandamus to be
directed against the Minister of Western Econom
ic Diversification, the Minister of Transport, the
Minister of Fisheries and Oceans and the Minister
of the Environment, respondents in the Trial Divi
sion proceedings, in respect of decisions made per
taining to the construction and operation of a pulp
mill and related facilities on the Peace River in
northern Alberta. Central to the dispute is the
assertion that these decisions are affected by the
Environmental Assessment and Review Process
Guidelines Order, SOR/84-467 (the "Guidelines
Order") which is said to be binding upon these
Ministers and not to have been complied with.
This appeal, together with appeals from similar
orders made concurrently in the Trial Division in
Court File Nos. T-441-90 (A-211-90 [Daishowa
Canada Co. Ltd. v. North Environmental Society,
F.C.A., Stone J.A., judgment dated 28/9/90, not
yet reported]), T-441-90 (A-212-90 [Daishowa
Canada Co. Ltd. v. Little Red River Band of
Indians, F.C.A., Stone J.A., judgment dated 28/9/
90, not yet reported]) and T-441-90 (A-225-90
[Alberta v. Little Red River Band of Indians,
F.C.A., Stone J.A., judgment dated 28/9/90, not
yet reported]), were heard at the same time. The
reasons given in this file will apply to the other
files and will be placed on those files so as to
become the reasons for judgment therein as well
except as modified or supplemented.
THE ORDER
It will be convenient if I set out the text of the
order which is attacked:
ORDER
Her Majesty the Queen in Right of Alberta is to be hereby
added as a party Respondent in these proceedings upon the
following conditions:
1. No pleadings additional to those already on the record
may be filed by this Respondent;
2. The conduct of the Respondent's case must fit within the
time frames set out for the conduct of the case by the present
parties;
3. The Respondent may attend on any cross-examinations
which are held of the applicants' affiants but is not entitled
to participate therein. This restriction does not apply to any
affidavits filed by the applicants in direct response to any
affidavits which this Respondent might file in these proceed
ings. To the extent that the cross-examination of one affiant
by more than one counsel might arise as a result of this order
counsel are directed to avoid duplication and delay by their
designating lead counsel or otherwise dividing responsibility.
4. The respondent shall not be entitled to claim costs.
All of the above conditions, are of course, subject to any
decision which the judge hearing this application on its merits
might make.'
THE ISSUES
Two issues are raised in this appeal which
require our attention. The appellant contends that
the conditions in question ought to be struck out,
and especially so in view of the fact that the Judge
had already determined that the case was a proper
' Similarly, the order in Court File No. A-225-90 was made
in favour of the appellant, while in Court File Nos. A-211-90
and A-212-90 the orders were made in favour of Daishowa
Canada Co. Ltd., the appellant therein.
one for the joinder of the appellant as a party
respondent rather than as an intervenor. The
respondents by way of a cross-appeal submit that
the appellant ought not to have been joined at all
because the Trial Division lacks jurisdiction to
grant relief against the appellant. 2
DISCUSSION
The conditions
I shall deal first with the issue relating to the
conditions. The appellant asserts a direct interest
in the outcome of the proceedings as owner of a
railway spur and bridge across the Peace River
being built incidentally to the construction of the
pulp mill by Daishowa Canada Co. Ltd. As of
February 23, 1990 the spur was 97% complete and
the bridge 26%. Funding for construction of the
spur was received in the amount of $9,500,000
from the federal Department of Western Econom
ic Diversification. Further, the appellant asserts
that Alberta actually issued permits for the con
struction of the pulp mill as well as an interim
licence for the construction of the water intake/
effluent outfall facilities into the Peace River, with
a right to divert water from that river. These
facilities were exempted from the provisions of the
Navigable Waters Protection Act, R.S.C., 1985, c.
N-22 by the Minister of Transport who also grant
ed an approval to the appellant in respect of the
bridge pursuant to the same statute. The appel
lant, accordingly, contends that she should have
been granted full respondent standing, free of the
conditions contained in the order. As she puts it in
paragraph 6 of her memorandum:
6. Alberta has an immediate interest in the outcome of the
current proceedings flowing from its ownership of the Bridge
and the spur. Furthermore, Alberta owns natural resources
generally in the Province of Alberta and has exclusive constitu
tional jurisdiction to deal with her natural resources as she sees
fit, including the right to issue permits, licenses and to general
ly manage these natural resources.
The conditions imposed, she submits, would
hamper her ability to adduce evidence, to cross
2 No cross-appeal was launched in the other matters now
pending before us.
examine any witnesses adverse in interest and to
make submissions.
The learned Judge below gave the following
reasons for imposing the impugned conditions [at
pages 141-142]:
In this case, 1 have come to the conclusion that the appropri
ate course of action is to add Alberta and Daishowa as party
respondents but with very strict conditions attached to the roles
they may play. This conclusion is based on the fact that the
only reason to add them as respondents, instead of as interven-
ors, is to accord them appeal rights. It is based on a conscious
ness of the principle that the initiating party in a legal proceed
ing should normally be able to choose who is added as a party
and to control the general structure of the case. It is based very
heavily on the fact that. the arguments on the application will
be largely legal in nature (the appropriate interpretation of the
(EARP) Guidelines and the respective pieces of federal legisla
ture) as well as on the fact that all of the relevant evidence
should be in the control and the knowledge of the present
respondents.
• Rule 1716 contemplates that such terms and conditions may
be imposed, when parties are added, if it is just to do so. In the
present case I think the following terms fit within that catego
ry. While Alberta and Daishowa should have the right to call
evidence (i.e. to file affidavit evidence) and to cross-examine
affiants of any affidavits filed in reply thereto, I do not think
they should be able to add to the issues which the applicants
have established as the framework of their case. They will not
be given any right to file pleadings but must take the pleadings
as they presently exist. With respect to the cross-examination
of the applicant's affiants they will be entitled to attend as
observers thereon but not to participate therein. The addition of
Alberta and Daishowa as respondents should not be allowed to
interfere with or delay the timetable which the applicants and
the present respondents either agree upon or which the appli
cants convince the Court to impose. In this regard, the order
adding Alberta and Daishowa as respondents will be on the
express condition that they fit themselves within that timetable.
In addition, I do not believe that either should be able to claim
costs. Orders will issue in accordance with these reasons.
The learned Judge below relied on Rule
1716(2)(b) [Federal Court Rules, C.R.C., c. 663] 3
by way of analogy. She was of the view that the
appellant's presence before the Court was not
"necessary", and no attack is made on that conclu
sion. The ground upon which she seems to have
decided to join the appellant as a party respondent
3 Rule 1716... .
(2) At any stage of an action the Court may, on such terms
as it thinks just and either of its own motion or on application,
(Continued on next page)
was that the appellant "ought to have been
joined", though she also thought the joinder should
be permitted because she believed the appellant
wished "to acquire rights of appeal" (Appeal
Book, page 31).
Rule 1716(2)(b) is not peculiar to practice and
procedure in the Federal Court. It, or a variation
of it, has been a feature of the rules governing
practice and procedure in the Supreme Court of
Ontario since at least 1913. It was apparently
inherited from England. It is not a rule for joining
an intervenor but for joining a party. There is, of
course, a significant difference between the posi
tion of an intervenor in proceedings and that of a
party. The intervenor, for example, must as a rule
take the record as he finds it. He has no status to
pursue an appeal (Corporation of the City of
Toronto v. Morencie, [1989] 1 S.C.R. vii). On the
other hand, a party joined by order of a court will
normally enjoy the same rights as those of other
parties including the right to adduce evidence and
to make submissions. It has been said, indeed, that
he holds an absolute right to cross-examine wit
nesses adverse in interest (see Halton Community
Credit Union Ltd. v. ICL Computers Can. Ltd.
(1985), 3 C.P.C. (2d) 252 (Ont. C.A.), at page
253).
The real question at this stage is whether the
Judge below, in imposing the conditions in ques
tion, acted properly within the discretion vested in
her by Rule 1716(2)(b). That discretion is
undoubtedly broad—"on such terms as it thinks
just"—but it is not an absolute power to be exer
cised with full and complete discretion. Such a
broad discretion is subject to the constraint of
(Continued from previous page)
(b) 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 in dispute in the action may be
effectually and completely determined and adjudicated upon,
to be added as a party....
being exercised upon reasonable grounds.
Although this Court must be slow to interfere with
the exercise of a discretion such as this, it may do
so on certain limited grounds including if we
should find that the order is not "just and
reasonable." 5
The section 18 application is, as I have said,
brought against several federal ministers. If it
succeeds, the consequences for the appellant could
well be quite severe. Money the appellant has
invested in the bridge and railway spur might be
put in jeopardy if the mill is unable to operate or
its operation is delayed significantly on account of
the failure of the federal ministers to comply with
the Guidelines Order, assuming that order is found
to be binding upon them. The efficacy of any
permits and licences issued under provincial law
for construction of the mill as well as for the
intake/outfall facilities on the basis of a federal
exemption granted to the mill owner Daishowa
Canada Co. Ltd. pursuant to the Navigable
Waters Protection Act, might be put in question.
Yet, the appellant will not be able to adduce her
own evidence and advance her own arguments that
the Guidelines Order is inapplicable because a
federal-provincial agreement purports to leave
environmental assessment of the project in the
hands of the Province. She will be prevented, also,
from delving fully into any aspect of the matter
which may bear upon the exercise of discretion
vested in the Trial Division under section 18.
The order below is somewhat of a hybrid, par
taking of features both of an order joining a party
simpliciter and, with the addition of the condi
tions, of an order granting intervenor status. I am
° See e.g. Performing Rights Organization of Canada Ltd. v.
Canadian Broadcasting Corporation (1986), 7 C.P.R. (3d) 433
(F.C.A.), per Heald J.A., at pp. 445-446.
See e.g. International Business Machines Corporation v.
Xerox of Canada Limited and Xerox Corporation (1977), 16
N.R. 355 (F.C.A.); Algonquin Mercantile Corp. v. Dart
Indust. Can. Ltd. (1984), 5 C.I.P.R. 40 (F.C.A.).
not at all certain that the Judge was correct in
adding those conditions. 6
We have not had drawn to our attention any
case in which a court, having decided to join a
party before a matter was heard, qualified the role
of the new party in such fundamental ways as
those found in the conditions. Those conditions go
a long way, in my opinion, towards reducing the
appellant's role in the proceedings to more like
that of an intervenor than of a full party. They
limit the appellant in the evidence she may wish to
adduce, in cross-examination and in the position
she may wish to adopt. They require the appellant,
in effect, to take the record as she finds it and to
conform to a "timetable" for the hearing of the
section 18 application regardless of the impact that
timetable may have on the ability of the appellant
to advance her own position.'
The order below also deprives the appellant of
costs in the section 18 proceedings even though the
final decision is left to the judge hearing that
application. In my view such a condition could well
affect the way in which that judge exercises the
discretion in the matter. It would have been better
to say nothing about costs and leave the matter
entirely in the hands of that judge, to be exercised
in the way he or she may feel most appropriate
having regard to the circumstances prevailing at
the time the discretion is to be exercised. That
judge is in the best position to make the decision
unaffected by the views of the learned motions
judge formed at the preliminary stage.
'I do not think it desirable to lay down a general rule for the
construction of the words of discretion in Rule 1716(2)(b).
While the Rule gives no guidance as to the way the discretion
should be exercised, it permits a judge, at a minimum, to
require an applicant to pay the costs of the interlocutory
application (see e.g. Ayscough v. Bullar (1889), 41 Ch.D. 341
(C.A.); Attorney-General v. Pontypridd Waterworks Com
pany, [1908] 1 Ch. 388 (Ch.D.)),, though it is broader than
that. Such an order as to costs would not interfere with the
ordinary rights the person joined may exercise as a party in the
underlying proceedings.
' At the hearing we were told that the section 18 application
is now scheduled to be heard in early 1991. The agreed upon
"timetable" seems thus to have been overtaken by events in
that it was apparently drawn with a view to a date in July 1990
when the plant was expected to commence operations, which it
did.
In summary the order, in my view, is not "just
and reasonable" because of the conditions it
imposes. I would delete those conditions.
Jurisdiction
It now becomes necessary to address the submis
sion of the respondents in their cross-appeal that
the Judge below ought not to have joined the
appellant because no claim for relief is made
against her, and also because the Trial Division
would lack jurisdiction to grant relief to the appel
lant under the invoked legislation (Dene Nation v.
The Queen, [1983] 1 F.C. 146 (T.D.)). The courts
have sometimes joined a party defendant even
though no relief would be sought against him,' and
have recognized also that the party joined would
be enabled to resist the relief sought and be heard
on the terms of any judgment.' Much will depend
upon the circumstances of the particular case. This
Court has been willing to join a party in proceed
ings such as these simply because, as that party's
rights will be directly affected by the outcome of
the dispute, he should be enabled to assert rights
of appeal (Adidas (Can.) Ltd. v. Skoro Enterprises
Ltd., [1971] F.C. 382 (C.A.); Friends of the
Oldman River Society v. Canada (Minister of
Transport), [1990] 2 F.C. 18 (C.A.)). The princi
ple enunciated by this Court in Adidas would
appear to apply with even greater force where, as
here, the section 18 application is still pending in
the Trial Division.
DISPOSITION
I should add one final word before disposing of
this appeal. The respondents fear that the presence
of the appellant as a full party will enlarge and
delay the section 18 proceedings and will add to
the costs. I agree that all these things are possible
but, surely, these are but consequences which may
normally flow from any legal proceedings in which
a third party's rights will be directly affected by
the outcome. The Court has power to control its
8 Curtner v. Circuit, [1968] 2 Q.B. 587 (C.A.).
9 Compare Anion v. Raphael Tuck & Sons Ltd., [1956] 1
Q.B. 357 (Q.B.D.), at p. 383.
own process in order to ensure that justice is done
and, to that end, it may in appropriate circum
stances deal with any obvious abuse of its process
in a variety of ways including by the levying of
costs. No such abuse is evident on the record
before us.
In the result I would allow the appeal with costs
and would amend the order made March 13, 1990
by deleting therefrom all of the words commencing
with the words "upon the following conditions:" so
that the order as amended will read:
Her Majesty the Queen in Right of Alberta is to be hereby
added as a party Respondent in these proceedings.
The style of cause in this application shall be amended to
reflect the adding of Her Majesty the Queen in Right of
Alberta as a party Respondent.
The cross-appeal is dismissed.
IACOBUCCI C.J.: I agree.
HEALD J.A.: I concur.
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.