T-1029-76
Clifford Burnell (Plaintiff)
v.
The International Joint Commission (Defendant)
Trial Division, Thurlow A.C.J.—Ottawa, June 22
and July 9, 1976.
Jurisdiction—Plaintiff claiming defendant manipulated and
allowed others to manipulate water levels in St. Lawrence
River in breach of s. 4 of International Boundary Waters
Treaty Act—Plaintiff seeking damages for alleged flooding—
Defendant applying to strike statement of claim under Rule
419(1)(a) for lack of jurisdiction claiming plaintiff misinter
preted Act, and that it is a judicial tribunal and neither a
person nor a suable entity, and that s. 4 of the Act creates no
obligations or rights in an injured party against it—Federal
Court Rule 419(1)(a)—International Boundary Waters Treaty
Act, R.S.C. 1970, c. I-20, ss. 2-5.
Plaintiff sought damages from defendant arising from
alleged flooding of his property, claiming that defendant was an
agent of the Crown and had acquired the right to maintain the
water level in the St. Lawrence River, and that it had manipu
lated and allowed others to manipulate the level and was in
breach of section 4 of the International Boundary Waters
Treaty Act. Defendant applied to strike the statement of claim
under Rule 419(1)(a) for lack of jurisdiction, claiming the
plaintiffs interpretation of the Act, particularly section 4, was
misconceived, and that defendant was a judicial tribunal and
was neither a person nor a suable entity and that section 4
creates no obligation or right in respect of which an injured
party can pursue an action against it. Plaintiff's position was
that while the statement of claim referred only to section 4, the
Court, under section 5, has jurisdiction to enforce any right
arising under the Act and that plaintiff was entitled to amend
so as to claim under section 3, by which the same right is
conferred on â property owner injured in Canada to sue the
Commission, as a party causing damage in Canada, as is
conferred by section 4 on an owner injured in the United
States, and that the Commission is a suable person, and the
person referred to in section 5.
Held, the action is dismissed. Section 4 is limited to injury in
the U.S. and can afford no basis for this action. Paragraph 2 of
the statement of claim, dealing with section 4, is struck out; it is
for the Trial Judge to decide whether the claim was one that
arises under the Act so as to bring it within the section 5
jurisdiction, or simply one arguable only in a provincial court.
While it is doubtful whether the objection that the Commis
sion is not a person or party suable in this Court falls under
Rule 419(1)(a), the matter should be dealt with under the
Court's inherent jurisdiction respecting its own process to put
an end to a null or invalid proceeding. While it is not a question
here of a dead or non-existent defendant, the same principle
applies where the sole defendant named is neither a natural
person nor a body recognized by law as having a distinct legal
personality, nor a body empowered by statute with capacity to
sue or be sued. Defendant's functions are advisory and quasi-
judicial. Neither the Act not the Treaty establishes it as a body
corporate, nor do they give it capacity to sue or be sued. And
they do not imply that the High Contracting Parties so intend
ed. This was not a case of misnomer, nor can the action be
regarded as having been intended as an action against the
individual Commissioners personally, or be so treated. How
ever, if the action was misconceived, so also were the accept
ance of service, application for leave to enter a conditional
appearance, such appearance and the motion to strike out.
Lazard Brothers & Co. v. Midland Bank [1931] 1 K.B.
617; [1933] A.C. 289, applied. Hollinger Bus Lines Lim
ited v. Ontario Labour Relations Board [1952] O.R. 366,
agreed with.
ACTION.
COUNSEL:
F. J. McDonald and C. A. Murphy for
plaintiff.
G. Henderson, Q.C., and E. Binavince for
defendant.
SOLICITORS:
Hewitt, Hewitt, Nesbitt, Reid, McDonald &
Tierney, Ottawa, for plaintiff.
Gowling and Henderson, Ottawa, for
defendant.
The following are the reasons for order ren
dered in English by
THURLOW A.C.J.: In this proceeding, which was
begun on March 17, 1976, by the filing of a
statement of claim, the plaintiff seeks damages
arising from the alleged flooding of his property on
Renshaw Island in the St. Lawrence River by the
raising of the water level of the river. The island is
said to be located in the Province of Ontario and
between the water control dam at Long Sault,
Ontario, and the Beauharnois power house and
Coteau control dam in the Province of Quebec.
In paragraph 2 of the statement of claim it is
alleged that:
2. The Defendant is an agent of Her Majesty the Queen in
right of Canada, and pursuant to the terms of the Defendant's
enabling legislation and the International Boundary Waters
Treaty it acquired the right to maintain the water levels in all
navigable channels in the St. Lawrence River including the
channel depths to provide for adequate navigation through the
St. Lawrence Seaway system. The Defendant controls the level
of the water in the St. Lawrence Seaway system between the
port of Montreal and Lake Erie. The Defendant has manipulat
ed the water levels in the St. Lawrence River or it allowed
others to manipulate the level and it therefore is in breach of
Section 4 of the International Boundary Waters Treaty Act,
R.S.C. 1970, Chapter I-20 and the schedule thereto.
and in paragraphs 6, 7 and 8 it is said that:
6. The Plaintiff says and the fact is that the building and
appurtenances thereto were damaged beyond repair as a result
of the flooding on the property hereinbefore described and he
has lost the enjoyment of the lands as a direct result of the
Defendant's manipulation of the water levels in the St. Law-
rence River. The Plaintiff says and the fact is that the Defend
ant raised the water levels in the St. Lawrence System to
enable the ships using the system to carry more tonnage. When
the water levels began to rise the Plaintiff notified the Defend
ant of the damage that was being caused but the Defendant
failed to take any remedial actions to prevent the damage or to
stop the manipulation of the water levels which were causing
the damage.
7. The Plaintiff says and the fact is that his riparian rights
have been damaged as above described as a direct result of the
Defendant's breach of the provisions of the International
Boundary Waters Treaty Act, R.S.C. 1970, Chapter I-20 and
the schedule thereto.
8. The Plaintiff says that the Defendant has caused a continu
ing nuisance which led directly to the damage hereinbefore
described and which prevents the Plaintiff from using the
demised land for the purposes intended.
On June 3, 1976, solicitors claiming to act for
the defendant, after accepting service of the state
ment of claim, sought and obtained leave to enter
a conditional appearance for the purpose of object
ing to the jurisdiction of the Court. Such an
appearance was in fact entered the same day.
On June 22, 1976, the present application was
made, purportedly under Rule 419(1)(a), to dis
miss the action on the ground that the Court does
not have jurisdiction to entertain it against the
defendant. Rule 419(1)(a) provides that:
Rule 419. (1) The Court may at any stage of an action order
any pleading or anything in any pleading to be struck out, with
or without leave to amend, on the ground that
(a) it discloses no reasonable cause of action or defence, as
the case may be,
Under Rule 419(2) no evidence is admissible on
such an application.
The submission put forward on behalf of the
defendant was that the action is misconceived both
as to the interpretation of the Act referred to in
paragraph 2 of the statement of claim and, in
particular, section 4 of that Act, and as to the
nature of the defendant Commission, that the
Commission is a judicial tribunal and is neither a
person nor a suable entity and that section 4 of the
Act creates no obligation or right in respect of
which an injured person can pursue an action
against the Commission.
The plaintiff's position, as I understood it, was
that the responsibility for the raising of the water
level is that of the Commission, that while para
graph 2 of the statement of claim refers only to
section 4 of the Act the Court, under section 5, has
jurisdiction to enforce any right arising under the
Act, that the plaintiff is entitled to amend so as to
claim under section 3, by which the same right is
conferred on a property owner injured in Canada
to sue the Commission, as a party causing damage
in this country, as is conferred by section 4 on an
owner injured on the United States side, and that
the Commission is a person capable of being sued
and is the person referred to in section 5.
The sections to which reference have been made,
together with section 2, read as follows:
2. The treaty relating to the boundary waters and to ques
tions arising along the boundary between Canada and the
United States made between His Majesty, King Edward VII,
and the United States, signed at Washington on the 11th day of
January 1909, and the protocol of the 5th day of May 1910, in
the schedule, are hereby confirmed and sanctioned. 1911, c. 28,
s. 1.
3. The laws of Canada and of the provinces are hereby
amended and altered so as to permit, authorize and sanction
- the performance of the obligations undertaken by His Majesty
in and under the treaty; and so as to sanction, confer and
impose the various rights, duties and disabilities intended by
the treaty to be conferred or imposed or to exist within Canada.
1911, c. 28, s. 2.
4. Any interference with or diversion from their natural
channel of any waters in Canada, which in their natural
channels would flow across the boundary between Canada and
the United States or into boundary waters (as defined in the
treaty) resulting in any injury on the United States side of the
boundary, gives the same rights and entitles the injured parties
to the same legal remedies as if such injury took place in that
part of Canada where such diversion or interference occurs, but
this section does not apply to cases existing on the 11th day of
January 1909 or to cases expressly covered by special agree-
ment between Her Majesty and the Government of the United
States. 1911, c. 28, s. 3.
5. The Federal Court of Canada has jurisdiction at the suit
of any injured party or person claiming under this Act in all
cases in which it is sought to enforce or determine as against
any person any right or obligation arising or claimed under or
by virtue of this Act. 1911, c. 28, s. 4.
It appears to me to be clear that as section 4 is
limited to injury on the United States side of the
border it can afford no basis for the present action.
On the other hand, it is not clear that no arguable
case could be made out on a cause of action based
on section 3 and failure by the Commission to
observe the requirement of the second last para
graph of Article VIII of the Treaty'. Accordingly,
in so far as the matter would fall to be determined
on Rule 419(1)(a), I would strike out paragraph 2
of the statement of claim as disclosing no reason
able cause of action but I would leave the rest of
the statement of claim and what liability might be
established thereon to the trial judge to decide
after the facts had been explored. I would also
leave it to him to decide, after determining the
facts and the basis of any liability, whether the
claim was one that arises under the Act so as to
bring it within the jurisdiction conferred on this
Court by section 5 or is simply one that arises
under the common law of Ontario and is cogniz-
able only in a provincial court.
This, however, does not conclude the matter for
there is still the objection that the Commission is
not a person or party that can be sued in this
Court. I doubt very much that such an objection
falls under Rule 419(1)(a). But it appears to me
that if it is sound, if it can be said that there is no
defendant capable of being sued and of defending
itself, the matter can and should be dealt with,
under the inherent jurisdiction of the Court with
' In cases involving the elevation of the natural level of
waters on either side of the line as a result of the construction
or maintenance on the other side of remedial or protective
works or dams or other obstructions in boundary waters or in
waters flowing therefrom or in waters below the boundary in
rivers flowing across the boundary, the Commission shall
require, as a condition of its approval thereof, that suitable and
adequate provision, approved by it, be made for the protection
and indemnity of all interests on the other side of the line which
may be injured thereby.
respect to its own process, to put an end to a null
or invalid proceeding, whether on the Court's own
motion, on the relation of an amicus curiae, or
otherwise. See Lazard Brothers & Co. v. Midland
Bank 2 .
In that case in the Court of Appeal Scrutton
L.J. said at page 624:
One of the vital points in this case is whether there was, in
October or November, 1930, any existing juristic person known
as the Banque Industrielle de Moscou or the Russian equivalent
of that name, on whom a writ or notice of a writ could be
served, or against whom judgment in default of appearance
could be given. I am aware that in Jacques v. Harrison ((1884)
12 Q.B.D. 165) the Court of Appeal has decided that if a
person injuriously affected by a judgment by default and not a
party to that action desires to set aside the judgment, he must
apply either in the defendant's name, if he is entitled to use it,
or in his own name, by a summons served both on the plaintiff
and the defendant, to have it set aside. But I am aware of no
case, and counsel could not refer me to one, when this has been
applied to the case of a non-existent person, or defendant, on
whom no summons can be served. Indeed, in my opinion, if it
comes to the knowledge of the Court that it has entered
judgment in default of appearance against a man who was at
the time dead, or a company which was at the time dissolved, or
non-existent according to the law of its country of origin, the
Court is bound, after hearing the parties interested, of its own
motion to set the judgment aside. Such a judgment is null and
void: see Simmons v. Liberal Opinion ([1911] 1 K.B. 966)
(non-existent company); Tetlow v. Orela ([1920] 2 Ch. 24)
(plaintiff dead at time of writ); also the observations of Lord
Parker in Daimler Co. v. Continental Tyre and Rubber Co.
(Great Britain) ([1916] 2 A.C. 307, 337), referred to by
Viscount Cave in Russian Commercial and Industrial Bank v.
Comptoir d'Escompte de Mulhouse ([1925] A.C. 112, 130):
"But when the Court in the course of an action becomes aware
that the plaintiff is incapable of giving any retainer at all, it
ought not to allow the action to proceed."
In the House of Lords 3 the principle was stated
thus by Lord Wright at page 296:
I shall deal first with question (2.), which is most important
and is decisive, since it is clear law, scarcely needing any
express authority, that a judgment must be set aside and
declared a nullity by the Court in the exercise of its inherent
jurisdiction if and as soon as it appears to the Court that the
person named as the judgment debtor was at all material times
at the date of writ and subsequently non-existent: such a case is
a fortiori than the case which Lord Parker referred to in
Daimler Co. v. Continental Tyre, &c., Co. ([1916] 2 A.C. 307,
337). There the directors, being all alien enemies, could not give
a retainer. Lord Parker said: "But when the Court in the course
of an action becomes aware that the plaintiff is incapable of
2 [1931] 1 K.B. 617.
3 [1933] A.C. 289.
giving any retainer at all, it ought not to allow the action to
proceed." In such a case the plaintiff cannot be before the
Court. In the present case if the defendants cannot be before
the Court, because there is in law no such person, I think by
parity of reasoning the Court must refuse to treat these pro
ceedings as other than a nullity. English‘Courts have long since
recognized as juristic persons corporations established by for
eign law in virtue of the fact of their creation and continuance
under and by that law. Such recognition is said to be by the
comity of nations. Thus in Henriques v. Dutch West India Co.
((1728) 2 Ld. Raym. 1532, 1535) the Dutch company were
permitted to sue in the King's Bench on evidence being given
"of the proper instruments whereby by the law of Holland they
were effectually created a corporation there." But as the crea
tion depends on the act of the foreign state which created them,
the annulment of the act of creation by the same power will
involve the dissolution and non-existence of the corporation in
the eyes of English law. The will of the sovereign authority
which created it can also destroy it. English law will equally
recognize the one, as the other, fact.
The present instance is not one of a dead or
non-existent defendant in quite the same sense but
it appears to me that the same principle applies
where the sole defendant named in the proceeding
is neither a natural person nor a body recognized
by the law as having a legal personality of its own,
separate and distinct from that of its members, nor
a body endowed by statute, whether expressly or
impliedly, with capacity to sue or be sued in its
own name.
In Hollinger Bus Lines Limited v. Ontario
Labour Relations Board 4 , Roach J.A. speaking for
the Ontario Court of Appeal discussed the ques
tion as follows at page 376:
Although that ground was not contained in the particulars
furnished, and even though it may not have been, and likely
was not, argued before Spence J., this Court should take notice
of it proprio motu if this Court should reach the conclusion
after argument that the defendant is not a suable entity:
Society Brand Clothes Ltd. v. Amalgamated Clothing Workers
of America et al., [1931] S.C.R. 321, per Cannon J. at p. 326,
[1931] 3 D.L.R. 361.
As Meredith C.J., pointed out in The Metallic Roofing
Company of Canada v. The Local Union No. 30, Amalgamated
Sheet Metal Workers' International Association et al. (1903),
5 O.L.R. 424, affirmed 9 O.L.R. 171: "A corporation or an
individual or individuals were the only entities known to the
common law who could sue or be sued; to these have been
added, by the Judicature Act and rules, iwo or more persons
claiming or being liable as partners, who, if carrying on busi
ness in Ontario, may sue and be sued in the name of the firm of
4 [1952] O.R. 366.
which they were co-partners at the time of the accruing of the
cause of action, and any person—that is, a single individual—
whether residing within or without Ontario, carrying on busi
ness within Ontario in a name or style other than his own name,
who may be sued in such name or style. It is competent,
however, to the legislature to give to an association of individu
als which is neither a corporation, nor a partnership, nor an
individual, a capacity for owning property and acting by agents;
and such capacity, in the absence of express enactment to the
contrary, involves the necessary correlative of liability to the
extent of such property for the acts and defaults of such agents:
per Farwell J., whose judgment was approved and adopted by
the House of Lords, in Taff Vale R.W. Co. v. Amalgamated
Society of Railway Servants, [1901] A.C. 426, at p. 429 .... "
The defendant is not any one of those entities. Plainly, it is
not an individual. There are individuals who are members of
the Board but the Board itself is a single entity. Plainly, too, the
members of the Board are not partners or persons carrying on
business in a name other than their own. Neither is the
defendant a corporation. The statute creating it, most signifi
cantly, does not declare it to be a corporation. There are Boards
which are the creatures of the legislature, some of which, by the
statutes creating them, are corporations, and some of which are
not. For example, the Workmen's Compensation Board, by the
statute creating it, is a body corporate; the Ontario Municipal
Board is not.
There are cases in which it has been held that, notwithstand
ing the fact that the Act creating a body did not expressly
declare it to be a body corporate, that body, as a necessary
intendment from the enactment creating it, was liable to be
sued and had capacity to sue. Such a case is Bank of Montreal
v. Bole, [1931] 1 W.W.R. 203, in which it was held that the
Liquor Board of Saskatchewan had capacity to sue or be sued
even though the Act which created it did not expressly declare
it to be a body corporate.
The International Joint Commission consists of
six members established as a Commission under
the Treaty referred to in the statute. Three of the
members are appointed by the President of the
United States and three by the Governor in Coun
cil. Under Article VIII of the Treaty the Commis
sion has jurisdiction over and the authority to pass
upon cases involving the use or obstruction or
diversion of waters with respect to which under
other articles of the Treaty the approval of the
Commission is required and certain rules and prin
ciples to be followed by the Commission are pre
scribed including that to which reference has
already been made. A majority of the Commission
is empowered to render a decision. If the Commis
sion is evenly divided, separate reports are to be
made by the Commissioners on each side to their
governments and, after consultation and agree-
ment between the governments, the matter may be
referred back to the Commission for decision. It is
thus, in my opinion, a body the functions of which
are advisory and quasi-judicial in character.
Nowhere in the statute or the Treaty is it estab
lished as a body corporate. Nowhere in the statute
or the Treaty is capacity expressly conferred on it
to sue or be sued.
The Commission has authority to employ engi
neers and clerical assistants but it is not authorized
to acquire property or to execute works. Under the
Treaty the salaries and expenses of the Commis
sion and of the secretaries of the United States and
Canadian sections are to be paid by their respec
tive governments and the joint expenses incurred
by it are to be paid in equal moieties by the High
Contracting Parties. In my opinion on the statute
and the Treaty there is no basis for implying that
it was intended by the High Contracting Parties
that the Commission should have capacity to sue
or be sued in the courts of either country and there
is no foundation for the plaintiff's submission that
the Commission has such capacity.
It was not suggested by the counsel for the
plaintiff that the action could be treated as
brought against the Commissioners personally or
that an amendment should be made under Rule
1716 to join them as defendants in the place of the
Commission, but in any case as the action as
brought is against the Commission as an entity
and the position taken by counsel was simply that
it was a suable party I do not think the case is one
of mere misnomer of the defendant or that the
action can be regarded as having been in fact
intended as an action against the individual com
missioners in their personal capacities or be treat
ed as having been brought against them. See
Annual Practice 1965 at page 245 in relation to
English Order 15, Rule 6, which corresponded to
Rule 1716 of the Rules of this Court. The result,
as I see it, is that for lack of a defendant capable
of being sued there is really no action and that
what purport to be a statement of claim and an
action are null and void.
In the course of his argument counsel appearing
for the Commission submitted that as an interna
tional commission it was, under international law,
immune from suit in the courts of this country. If
so, such immunity might conceivably apply to
protect the Commissioners in their personal capac
ities but, in view of the conclusion I have reached,
it appears to me to be unnecessary to consider or
deal with the submission.
Having concluded that the proceeding should be
treated as null, it appears to me that in order to
terminate it it should be dismissed. But I should
not leave the matter without observing that if, as I
think, the action was misconceived, so also were
the acceptance of service, the application for leave
to enter a conditional appearance, the entry of
such an appearance and the bringing of a motion
under Rule 419(1)(a).
The action will be dismissed 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.