Judgments

[1993] 2 F.C. 651

A-190-93

Her Majesty the Queen in Right of Alberta (Appellant) (Proposed Respondent)

v.

Friends of the Oldman River Society (Respondent) (Applicant)

and

Minister of Environment, the Hon. Jean Charest, Minister of Transportation, the Hon. Jean Corbeil, Minister of Fisheries & Oceans, the Hon. John Crosbie, Minister of Indian & Northern Affairs, the Hon. Thomas Siddon (Respondents) (Respondents)

Indexed as: Friends of the Oldman River Society v. Canada (Minister of the Environment) (C.A.)

Court of Appeal, Isaac C.J., Pratte and Décary JJ.A.—Ottawa, April 6, 1993.

Federal Court jurisdiction — Trial Division — Provincial Crown, on consent of other parties, seeking addition as respondent to Federal Court Act, s. 18 proceeding — Judge below holding only “federal board, commission or other tribunal” could be named as respondent in s. 18 application — S. 18 merely describing matters within Court's jurisdiction — Not indicating who should be party to Court proceeding — Judge below erred in assuming s. 18 relief claimed against all respondents in s. 18 application — Also erred in holding Federal Court has no jurisdiction over provincial Crown — Rule of Crown immunity Queen cannot be sued without Her consent.

Crown — Prerogatives — Provincial Crown directly affected by Federal Court Act, s. 18 application entitled to be added as respondent when all parties consenting — Rule of Crown immunity not Queen cannot be sued in Her courts but cannot be sued without Her consent.

This was an application on consent for judgment allowing an appeal from an order adding the Queen in right of Alberta as a respondent on terms. Although the application to be added as a respondent to a Federal Court Act, section 18 application was consented to by all parties, the Judge below held that previous decisions allowing the addition as respondents of persons against whom the applicant seeks no relief but whose interest would be directly affected by the order sought had been wrongly decided because they ignored Federal Court Act, subsection 18(1) which limits the Court's jurisdiction in judicial review proceedings to granting relief against a “federal board, commission or other tribunal”. The Judge below held that therefore only a “federal board, commission or other tribunal” could be named as a respondent in an application for a section 18 remedy. He also held that the Federal Court has no jurisdiction over the provincial Crown, since the Federal Court Act did not abrogate the traditional rule that the provincial Crown cannot be sued in Her courts.

Held, the appeal should be allowed.

Subsection 18(1) merely describes matters within the Court's jurisdiction. It does not indicate who should be made a party to a proceeding before the Court. The Judge below erred in assuming that a subsection 18(1) relief is necessarily claimed from all persons who are named as respondents in a section 18 application.

The “Crown immunity” rule is not that the Queen cannot be sued in her courts, but that she cannot be sued without her consent.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Environmental Assessment and Review Process Guidelines Order, SOR/84-467.

Federal Court Act, R.S.C., 1985, c. F-7, s. 18 (as am. by S.C. 1990, c. 8, s. 4).

Federal Court Rules, C.R.C., c. 663, R. 1212.

Navigable Waters Protection Act, R.S.C., 1985, c. N-22, s. 5.

CASES JUDICIALLY CONSIDERED

APPLIED:

Adidas (Can.) Ltd. v. Skoro Enterprises Ltd., [1971] F.C. 382; (1971), 12 C.P.R. (2d) 67 (C.A.).

DISTINGUISHED:

Union Oil Company v. The Queen, [1975] 2 S.C.R. v; (1976), 72 D.L.R. (3d) 82; 16 N.R. 425.

REFERRED TO:

Friends of the Oldman River Society v. Canada (Minister of Transport), [1990] 2 F.C. 18; (1990), 68 D.L.R. (4th) 375; [1991] 1 W.W.R. 352; 76 Alta. L.R. (2d) 289; 5 C.E.L.R. (N.S.) 1; 108 N.R. 241 (C.A.); Edmonton Friends of the North Environmental Society v. Canada (Minister of Western Economic Diversification), [1991] 1 F.C. 416; (1990), 73 D.L.R. (4th) 653; [1991] 2 W.W.R. 577; 78 Alta. L.R. (2d) 97; 47 Admin. L.R. 265; 114 N.R. 153 (C.A.); Canadian Wildlife Federation Inc. v. Canada (Minister of the Environment), [1991] 1 F.C. 641; (1990), 6 C.E.L.R. (N.S.) 89; 41 F.T.R. 318; 121 N.R. 385 (C.A.); Tetzlaff v. Canada (Minister of the Environment), [1992] 2 F.C. 215; (1991), 4 Admin. L.R. (2d) 11; 134 N.R. 57 (C.A.); Tetzlaff v. Canada (Minister of the Environment), [1991] 2 F.C. 212; (1991), 47 Admin. L.R. 275; 40 F.T.R. 104 (T.D.); Tetzlaff v. Canada (Minister of the Environment), [1991] 2 F.C. 206; (1991), 47 Admin. L.R. 286; 40 F.T.R. 112 (T.D.).

APPEAL from order (T-101-93, Muldoon J., order dated 19/2/93, F.C.T.D., not yet reported) adding Her Majesty the Queen in Right of Alberta as a respondent on terms to Federal Court Act, section 18 application, although all parties consented to the addition. Appeal allowed.

SOLICITORS:

Milner Fenerty, Edmonton, for appellant (proposed respondent).

Wilson, Danderfer, Banno & Mitchell, Vancouver, for respondent (applicant) Friends of the Oldman River Society.

Deputy Attorney General of Canada for respondents (respondents), Minister of Environment, the Hon. Jean Charest, Minister of Transportation, the Hon. Jean Corbeil, Minister of Fisheries & Oceans, the Hon. John Crosbie, Minister of Indian & Northern Affairs, the Hon. Thomas Siddon.

The following are the reasons for judgment rendered in English by

Pratte J.A.: This is an application under Rule 1212 of the Federal Court Rules [C.R.C., c. 663][1] whereby the appellant asks that judgment be rendered allowing Her appeal in accordance with the notices of consent signed on behalf of all the respondents.

An application of this kind is usually granted as a matter of course and judgment pronounced without reasons. But this is not a normal case since the Judge of first instance [T-101-93, Muldoon J., order dated 19/2/93, not yet reported] expressed the view that, in spite of decisions of this Court to the contrary, he could not grant the order sought by the appellant without exceeding his jurisdiction.

In order to understand the problem, some explanations are necessary.

Her Majesty the Queen in right of Alberta (Alberta) is the owner of the Oldman River Dam in relation to which the Friends of the Oldman River Society (FORS) commenced a section 18 [Federal Court Act, R.S.C., 1985, c. F-7 (as am. by S.C. 1990, c. 8, s. 4)] application in the Trial Division. That application is directed against four respondents, namely, the Minister of Environment, the Minister of Transport, the Minister of Fisheries and Oceans and the Minister of Indian and Northern Affairs; it seeks an order in the nature of mandamus compelling those respondents to implement certain recommendations made by an Assessment Panel pursuant to the Environmental Assessment and Review Process Guidelines Order, SOR/84-467.

Alberta is not a party to those proceedings. It nevertheless has an interest in their outcome. Indeed, it has applied to the Minister of Transport for an approval of the Oldman River Dam under subsection 5(1) of the Navigable Waters Protection Act[2] and an order granting the mandamus sought by FORS would, in effect, require the Minister of Transport to impose conditions on that approval. For that reason, Alberta applied to the Trial Division to be added as a party respondent to the section 18 application so as to be able to oppose that application and, eventually, to appeal from a judgment granting it. FORS and the four Ministers who were named as respondents in the mandamus proceedings consented to Alberta's application.

The Judge below was in an awkward predicament. Alberta's application was consented to by all parties and many decisions of this Court in similar matters[3] indicated that it ought to be granted. The Judge, on the other hand, was of opinion that the previous decisions of this Court on the subject were wrong and that he could not, without exceeding his jurisdiction, grant Alberta's application. He resolved the dilemma by granting the application on terms. Alberta does not wish to accept those terms. Hence this appeal and this motion.

As early as in 1971, this Court decided, in Adidas (footnote 3), that when an order in the nature of mandamus is sought under section 18 of the Federal Court Act against a “federal board, commission or other tribunal”, a person against whom the applicant seeks no relief but whose interest would be directly affected by the order sought may be added as a party respondent to the mandamus proceedings so as to be in a position to appeal from the order granting it.

If I understand correctly the reasons given by the Judge of first instance in this case and those that he gave in the Tetzlaff case,[4] the decision of this Court in Adidas should not be followed for two reasons: first, because it “appears to have been decided per incuriam” and, second, because, in any event, it has no application to a case like the present one where the person who seeks to be added as a party to the proceedings is the Crown in right of a province.

One may say that Adidas was wrongly decided if one is of the view that, in a mandamus proceeding, no person other than the one against whom the order is sought should be named as a respondent. But this is precisely the view that the Court repudiated because it was of opinion that justice required otherwise. The Judge below, if I understand him correctly, does not challenge that opinion. But, in his view, Adidas was nevertheless wrongly decided because the Court, in that case, would have ignored subsection 18(1) of the Federal Court Act. That subsection clearly states that in judicial review proceedings, the jurisdiction of the Court is limited to the granting of relief against a “federal board, commission or other tribunal”. It follows, according to the Judge, that no person but a “federal board, commission or other tribunal” can be named as a respondent in an application for a section 18 remedy.

That inference cannot be drawn. Subsection 18(1) is but one of many provisions which describe the matters that are within the jurisdiction of the Court. That is its sole purpose. It does not indicate who should be made a party to a proceeding before the Court. For instance, it is clear that the only decisions that the Trial Division has the jurisdiction to review under subsection 18(1) are those of federal boards, commissions or other tribunals; but it is equally clear that if an applicant seeks judicial review of such a decision, he will have to name as a respondent in his proceedings the person in whose favour that decision was rendered even though that person is not a “federal board, commission or other tribunal”. The error of the Judge below, in my mind, is to assume that a subsection 18(1) relief is necessarily claimed from all persons who are named as respondents in a section 18 application. That is not the case.

The second reason why the Judge of first instance was reluctant to follow the jurisprudence of this Court was that, in this case, the person seeking to be added as a respondent to the mandamus proceedings is Her Majesty in right of Alberta. The Queen in right of a province, according to the Judge, cannot be added as a respondent to those proceedings because the Federal Court has no jurisdiction over the Queen acting in that capacity[5] since the Federal Court Act did not abrogate the traditional rule according to which the Queen in right of a province cannot be sued in Her courts.

That opinion appears to me to be wrong for two reasons. First, the traditional rule, sometimes referred to compendiously as a “Crown immunity”, is not that the Queen cannot be sued in Her courts but that She cannot be sued without Her consent. It is therefore a rule that cannot be opposed to Her Majesty if She finds it in Her interest to seek an order making Her a party respondent to a mandamus application. Second, the reasoning of the Judge assumes once again that a section 18 relief is necessarily claimed from all persons who are named as respondents in a section 18 proceeding. That is, as I have already said, an incorrect assumption.

It follows that, contrary to the views expressed by the Judge below, the order sought by the appellant is an order that the Court has the power to make and that, in view of the consent of all the other parties, ought to be made.

I would therefore allow the appeal, set aside the decision appealed from, grant the appellant's application to be added as a party respondent to the section 18 application made by FORS and order that the style of cause in those section 18 proceedings be amended accordingly by adding, at the end of the style of cause as it now reads, the following words:

“

-and-

HER MAJESTY THE QUEEN IN RIGHT OF ALBERTA

Third Party Respondent”.

Isaac C.J.: I agree.

Décary J.A.: I agree.

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