T-2210-76
Chief William Sunday, Benjamin Roundpoint,
James Caldwell, Lawrence Francis, Catherine
Day, Cecilia Buckshot, Francis Sam, Gerald Shar-
row, Michael Francis, Reginald Mitchell, James
Lazore and Michael David (acting personally as
well as on behalf of the members of the Iroquois of
St. Regis Indian Band) and The Iroquois of St.
Regis (Indian Band) (Plaintiffs)
v.
The St. Lawrence Seaway Authority, The Queen
in right of Canada, The Hydro Electric Power
Commission of Ontario (Ontario Hydro) and The
Queen in right of Ontario (Defendants)
and
The Receiver General of Canada (Mis -en-cause)
Trial Division, Marceau J.—Toronto, September
15; Ottawa, November 5, 1976.
Practice—Motion to strike out Ontario Hydro as defending
party—Jurisdiction of Court—Indian Act, R.S.C. 1970, c.
1-6—International Rapids Power Development Act, R.S.C.
1952, c. 157, ss. 3 and 4—The St. Lawrence Development Act,
1952 (No. 2), S.O. 1952 (2nd Session) c. 3, ss. 3, 15(1) and
23—Federal Court Act, ss. 17(1) and (2), 19, 22(1), 23 and 25.
Ontario Hydro contends that the Federal Court has no
jurisdiction to entertain the claim advanced against it, relying
mainly on The St. Lawrence Development Act, 1952 (No. 2)
(S.O. 1952 (2nd Session) c. 3) and sections 3 and 4 of the
International Rapids Power Development Act. Plaintiffs claim
that neither Act applies and that the Court has jurisdiction
under sections 17, 19, 22(1), 23 and 25 of the Federal Court
Act, the Indian Act, Orders in Council made thereunder and
the St. Regis Islands Act.
Held, the motion is granted. Section 4 of the International
Rapids Power Development Act applies by virtue of section 3 of
that Act and the relevant Orders in Council, although made
under section 35 of the Indian Act, were made to give effect to
and within the limits of the first-named Act. The fact that a
defendant has been joined with others who are properly before
the Court does not give the Court jurisdiction over him. There
is no controversy between the federal and provincial govern
ments so as to give the Court jurisdiction under section 19 of
the Federal Court Act, and the right conferred by that section
may be invoked on behalf of the federal Crown only. The issues
raised do not deal with navigation and shipping or with inter-
provincial undertakings so as to bring them within the ambits
of sections 22(1) and 23 of the Federal Court Act. Finally, as
to section 25 of the Federal Court Act, the Supreme Court of
Ontario undoubtedly has jurisdiction to enforce a claim against
Ontario Hydro relating to lands wholly situate within the
Province.
Anglophoto Limited v. The "Ikaros" [1973] F.C. 483;
Quebec North Shore Paper Company v. Canadian Pacific
Limited (1976) 9 N.R. 471 (S.C.C.) and Union Oil Co. of
Canada Ltd. v. The Queen [1976] 1 F.C. 74, applied.
MOTION.
COUNSEL:
J. O'Reilly and W. Grodinsky for plaintiffs.
Paul J. Evraire for defendants St. Lawrence
Seaway Authority, The Queen in right of
Canada and mis -en-cause Receiver General of
Canada.
R. F. Wilson, Q.C., and E. R. Finn for
defendant Hydro Electric Power Commission
of Ontario.
Julian Polika for defendant The Queen in
right of Ontario.
SOLICITORS:
O'Reilly, Hutchins & Archambault, Mont-
real, for plaintiffs.
Deputy Attorney General of Canada for
defendants St. Lawrence Seaway Authority,
The Queen in right of Canada and mis -en-
cause Receiver General of Canada.
Day, Wilson, Campbell, Toronto, for defend
ant Hydro Electric Power Commission of
Ontario.
Deputy Attorney General of Ontario for
defendant The Queen in right of Ontario.
The following are the reasons for order ren
dered in English by
MARCEAU J.: This is a motion to strike out
Hydro-Electric Power Commission of Ontario
(Ontario Hydro) as a party defendant in the action
on the ground that there is no jurisdiction in this
Court to entertain the claim advanced therein
against it.
The plaintiffs are all registered Indians within
the meaning of the Indian Act, members of the
Iroquois of St. Regis Indian Band and elected
members of the St. Regis Band Council. They act,
in the proceedings, personally as well as in a
representative capacity, on behalf of the Band and
of all its members, and their action is launched
against four defendants: Her Majesty the Queen in
right of Canada (hereafter referred to as the feder
al Crown); the St. Lawrence Seaway Authority;
Her Majesty the Queen in right of Ontario (here-
after referred to as the Ontario Crown); and
Ontario Hydro.
As against the two last mentioned defendants,
the subject-matter of the action can be very briefly
summarized as follows.
To carry out works in relation to an electric
power development in the St. Lawrence River at
the International Rapids section near the St. Regis
and Cornwall Island Indian Reserves, the Ontario
Crown and Ontario Hydro "appropriated" many
years ago, pursuant to various Orders in Council,
certain lands over which the plaintiffs had personal
and usufructuary rights. The works were carried
out and as a result damage was caused to lands
which were to remain within the Band's reserves.
The plaintiffs allege that to date they have been
paid only part of the compensation and damages to
which they are entitled for the loss of the lands
expropriated and that they have received no com
pensation for the damage caused to their reserves
in carrying out the power project works. They also
allege that the Ontario Crown and Ontario Hydro
were under an obligation to return to the Band all
unflooded portions of the lands "appropriated"
after construction of the works for which they
were needed, an obligation which has not as yet
been fulfilled. The relief sought is then expressed
in two subparagraphs of the declaration, which
pray that:
f) Defendants Her Majesty the Queen in right of Ontario and
the Hydro-Electric Power Commission of Ontario (Ontario
Hydro) be jointly and severally condemned to pay plaintiffs or
to the mis -en-cause on behalf of plaintiff band the amount of
$1,000,000.00 with interest at the legal rate for the respective
dates of expropriation;
g) Defendants Her Majesty the Queen in right of Ontario and
the Hydro-Electric Power Commission of Ontario (Ontario
Hydro) be ordered to convey to or for the benefit of plaintiff
the Iroquois of St. Regis Indian Band all unflooded portions of
the islands mentioned in paragraph 17 hereof.
Ontario Hydro contends that this Court has no
jurisdiction to entertain the claim advanced
against it. It relies mainly on The St. Lawrence
Development Act, 1952 (No. 2) (S.O. 1952 (2nd
Session), c. 3) as amended, according to which the
lands concerned were vested in it and the works
referred to were carried out. This Act, in effect,
provides as follows:
3. Upon the transfer of the administration of the lands
belonging to Canada provided for in Article V of the Canada-
Ontario agreement, such lands vest in the Commission.
15. (1) Where the Commission and the owner cannot agree
upon the amount of compensation, either party may give notice
in writing to the other and to the Board requiring that the
amount of compensation be determined by the Board, and
thereupon the Board shall be seized of the matter, which shall
be proceeded with in accordance with the practice and proce
dure of the Board.
23. All claims and proceedings in respect of compensation or
damages for any land or property acquired, taken or used in or
injuriously affected in the carrying out of the purposes of this
Act shall be brought under and in accordance with this Act and
not otherwise, and subsection 8 of section 24 of The Power
Commission Act applies mutatis mutandis to every act and
proceeding of the Commission under this Act.
The plaintiffs deny that The St. Lawrence De
velopment Act applies. They contend that basically
their claims relate to unfulfilled conditions in
respect of the transfers of federal lands, compensa
tion for the taking of federal reserve lands and
damage to their rights and interests in their
reserve lands in general. Their claims, they say,
arise from the Indian Act (R.S.C. 1970, c. I-6)
and the St. Regis Islands Act (17 Geo V c. 37),
the latter being an Act which had the effect of
placing some of the islands in question under the
power of the Superintendent General of Indian
Affairs.
To understand the plaintiff's contentions, a brief
examination of the legislation relating to the lands
involved is necessary.
The general authority for the construction of the
aforesaid hydro-electric project was the federal
International Rapids Power Development Act
(R.S.C. 1952, c. 157), which approved an agree
ment of the previous year between the Government
of Canada and the Government of Ontario provid
ing for the development of the power resources in
the International Rapids section of the St. Law-
rence River. Sections 3 and 4 of that Act provided
as follows:
3. The Governor in Council may transfer to the Government
of Ontario the administration of lands or property belonging to
Canada that in the opinion of the Governor in Council are
necessary for the construction, operation or maintenance of the
works to be constructed pursuant to the agreement set out in
the Schedule.
4. For the purpose of constructing, operating and maintain
ing the works to be undertaken pursuant to the agreement set
out in the Schedule,
(a) The Hydro-Electric Power Commission of Ontario shall
have the powers and capacities of a natural person as if it
were incorporated by Letters Patent under the Great Seal for
that purpose; and
(b) the provisions of the Power Commission Act of the
Province of Ontario with respect to the expropriation or
taking of lands or property apply mutatis mutandis to the
expropriation or taking of lands or properties for the works,
and have effect as if enacted in this Act in relation thereto.
To give effect to the agreement, Ontario, for its
part, first enacted The International Rapids
Power Development Agreement Act, 1952 (S.O.
1952, c. 42), then it passed a second Act, The St.
Lawrence Development Act, already referred to,
which basically provided that Ontario Hydro was
to undertake and perform the obligations of the
Government of Ontario under the Canada-Ontario
agreement and was authorized to proceed with the
construction, maintenance and operation of the
works contemplated.
By Orders in Council passed in 1955 and 1956
(exhibit P-2) the lands which were needed for the
works contemplated and which are the subject of
this action were transferred to the Province of
Ontario. The Orders in Council were all drawn up
the same way, so it will be sufficient to reproduce
one of them:
WHEREAS Her Majesty in right of the Province of Ontario is
empowered to take or to use lands or any interest therein
without the consent of the owner and Her Majesty in right of
the said Province has applied to exercise this power in relation
to lands forming part of the St. Regis Indian Reserve known as
Sheek Island;
AND WHEREAS Her Majesty in right of the said Province
advises that as part of the works to develop the power resources
of the International Rapids section of the St. Lawrence River to
be undertaken by Ontario, it is necessary to take or acquire the
said lands;
AND WHEREAS section 35 of the Indian Act provides that an
expropriating authority may take lands in an Indian reserve
with the consent of the Governor in Council and that the
Governor in Council may when he has so consented, authorize
the transfer or grant of such lands to the expropriating author
ity, subject to any terms that he may prescribe.
THEREFORE, His Excellency the Governor General in Coun
cil, on the recommendation of the Minister of Citizenship and
Immigration and pursuant to section 35 of the Indian Act, is
pleased, hereby, to consent to Her Majesty in right of the
Province of Ontario taking the lands described in the schedule
hereto, and is pleased to transfer and doth hereby transfer the
said lands to Her Majesty in right of the said Province, subject
to payment within ninety days of the date hereof of such
amount in full compensation therefor as may be agreed upon by
the Band of Indians concerned, the Minister of Citizenship and
Immigration and Her Majesty in right of the said Province,
such amount to be exclusive of any claim for encumbrances
such as leases but including all encumbrances for which the
Indians have a direct claim and subject to such other terms as
may be agreed upon between the persons aforesaid.
The plaintiffs first contend that the provisions of
section 4 of the federal International Rapids
Power Development Act do not apply since these
provisions have reference only to the expropriation
or taking of lands, an effect the Orders in Council
did not have; the provincial The St. Lawrence
Development Act, 1952, can have no application
either since the lands were not acquired through
the procedure there provided; it follows that
primarily the issue of jurisdiction should be
resolved with reference only to the Indian Act, the
Orders in Council made thereunder and the St.
Regis Islands Act. The plaintiffs then submit that
this Court has jurisdiction under various sections
and subsections of the Federal Court Act, namely:
subsection 17(1), subsection 17(2), section 19,
subsection 22(1), section 23 and section 25.
I do not agree with the contention that the
provisions of paragraph 4(b) of the federal Inter
national Rapids Power Development Act do not
apply. In my view, the expression "taking of
lands" used by Parliament in that paragraph was
meant to cover the eventual "transfers of lands" by
the Governor in Council as contemplated by the
preceding section 3. The Orders in Council were
made—as they had to be—under section 35 of the
Indian Act but nevertheless they were made to
give effect to and within the limits of the Interna
tional Rapids Power Development Act. It is to be
remembered that the relief sought by this action is
not the annulment of the Orders in Council but
rather, at least in a sense, their enforcement.
Even if I were to accept the contention that the
provisions of paragraph 4(b) of the federal Inter
national Rapids Power Development Act and
those of section 3 of the provincial The St. Law-
rence Development Act, 1952 do not apply, I fail
to see how any of the sections of the Federal Court
Act relied upon by the plaintiffs are applicable to
the action as it is framed.
As to section 17 of the Federal Court Act,
counsel for the plaintiffs contends that as long as
the federal Crown is a defendant, this suffices to
give the Court jurisdiction, regardless of the iden
tity or character of the other defendants. In my
view, the contention is wrong. The fact that a
defendant has been joined with other defendants
who are properly before the Court does not operate
as to give the Court jurisdiction over him. I agree
with the comments of Collier J. in the case of
Anglophoto Limited v. The `Ikaros" ([1973] F.C.
483), to which Heald J. referred with approval in
the case of Desbiens v. The Queen ([1974] 2 F.C.
20), where he said [at page 498]:
I suggest a proper 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 were not joined in an action against other
defendants over whom there properly was jurisdiction.'
The result may be that for the plaintiffs to obtain
complete relief an action will have to be brought
both in this Court and the applicable Provincial
Court. Nevertheless Parliament must be taken to
' The above judgment of Collier J. was reversed on appeal
but the portion of his judgment quoted here was not affected by
the appeal judgment.
have been well aware of the difficulty and the
situation must be accepted as it is. (See also:
Sumitomo Shoji Canada Ltd. v. The "Juzan
Maru" [ 1974] 2 F.C. 488.)
As to section 19 of the Federal Court Act,
counsel for the plaintiffs argues that the issues in
the action raise controversies between Canada and
Ontario, having in mind the special clause in the
Canada-Ontario agreement of 1951 by which
Ontario is pledged to save Canada harmless for
any claim "arising out of the construction, mainte
nance or operation of the works". There is no such
existing controversy between the two governments
and the mere fact that there might eventually be
one is not sufficient to give the court jurisdiction.
This action does not have the effect of raising such
a controversy and in any case the plaintiffs, being
third parties, would have no status to raise it
themselves. The clause referred to may give a right
to the federal Crown, but it is a right which may
be invoked on behalf of the federal Crown only,
and would not be accruing to the plaintiffs.
As to sections 22(1) and 23 of the Federal
Court Act, counsel for the plaintiffs contends that
the issues here deal with "navigation and ship
ping" to the extent that the International Rapids
Power Development Act is concerned; and they
involve at the same time works and undertakings
connecting a province with another, the St. Law-
rence Seaway being a waterway between Lake
Erie and the Port of Montreal. But, to my mind,
the claim is essentially one for compensation for
the taking of and causing damage to lands wholly
situate in the Province of Ontario. It is a claim
partly in tort and partly for the enforcement of an
undertaking. I fail to see how this falls within
"navigation and shipping" or "interprovincial"
matters. (See: Quebec North Shore Paper Com
pany v. Canadian Pacific Limited (1976) 9 N.R.
471 (S.C.C.).)
Finally as to section 25 of the Federal Court
Act, counsel for the plaintiffs submits that the
Supreme Court of Ontario does not have jurisdic
tion to deal with Indian reserve land questions.
Again, the action must be taken as it stands and I
think that the Supreme Court of Ontario undoubt
edly has jurisdiction to enforce a claim against
Ontario Hydro which is one partly in tort and
partly for the enforcement of an agreement, pray
ing for compensation for the taking of and causing
damage to land wholly situate within the Province.
It is clear that this Court is a statutory Court
and its jurisdiction with respect to a specific suit
must be found in the Federal Court Act or in some
other statute or law meant to confer jurisdiction. I
do not think any of the statutory provisions I was
referred to or any others which I am aware of
authorize this Court to entertain or hear the claim
advanced in this suit against Ontario Hydro. (See
also: Union Oil Co. of Canada Ltd. v. The Queen
[1976] 1 F.C. 74.)
The motion will therefore be acceded to. There
will be an order striking out Ontario Hydro as a
defendant in this case. Ontario Hydro is entitled to
its costs from the plaintiffs of entering a condition
al appearance and of this motion.
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.