T-3536-81
The Dene Nation and The Metis Association of
the Northwest Territories (Plaintiffs)
v.
The Queen (Defendant)
Trial Division, Dubé J.—Ottawa, June 8 and 9,
1982.
Practice — Parties — Application for joinder as party
defendant — Rights of licensee affected by decision — Court
has no jurisdiction where Act supports no cause of action
against proposed defendant — Application dismissed — Fed
eral Court Rule 1716(2)(6) — Northern Inland Waters Act,
R.S.C. 1970 (P' Supp.), c. 28 Northern Inland Waters
Regulations, C.R.C., c. 1234, s. 11.
This is an application by Esso Resources Canada Limited for
an order adding the corporation as party defendant in the
action. Plaintiffs are seeking a declaration that sections of the
Northern Inland Waters Act are ultra vires. Applicant con
tends that the relief sought would affect its rights to water used
in the production of oil acquired under impugned sections of
the Act.
Held, the application is dismissed. A person can be joined as
a party defendant if his legal rights might be affected by the
outcome of the case, and if the Court has jurisdiction to
entertain the action against the proposed defendant. There
must be "existing and applicable federal law" to support such
an action. The applicant has not shown under what section of
the Act, and for what purpose the plaintiffs could direct
proceedings against the applicant. The sole issue is the validity
of some sections of the Act and Regulations, and both the
applicant and the defendant support the validity of the legisla
tion and of any authorizations, or licences issued thereunder.
CASES JUDICIALLY CONSIDERED
APPLIED:
Alda Enterprises Limited v. The Queen et al., (1978] 2
F.C. 106 (F.C.T.D.); McNamara Construction (Western)
Limited et al. v. The Queen et al., [1977] 2 S.C.R. 654;
Quebec North Shore Paper Company et al. v. Canadian
Pacific Limited et al., [1977] 2 S.C.R. 1054.
REFERRED TO:
Chitty et al. v. Canadian Radio-television and Telecom
munications Commission, [1978] 1 F.C. 830 (F.C.T.D.);
Waterside Cargo Cooperative v. National Harbours
Board (1979), 107 D.L.R. (3d) 576 (F.C.T.D.).
APPLICATION.
COUNSEL:
S. T. Goudge, Q.C. for plaintiffs.
No one appearing for defendant.
R. C. Pittman for applicant, Esso Resources
Canada Limited.
SOLICITORS:
Cameron, Brewin & Scott, Toronto, for
plaintiffs.
Deputy Attorney General of Canada for
defendant.
Legal Department, Esso Resources Canada
Limited, Calgary, for applicant Esso
Resources Canada Limited.
The following are the reasons for order ren
dered in English by
DuBÉ J.: This motion is brought on behalf of
Esso Resources Canada Limited of Calgary,
Alberta, ("Esso"), for an order pursuant to Rule
1716 or Rule 5 directing that the applicant be
added as a party defendant to this action.
The statement of claim filed on July 6, 1981
seeks a declaration that the creation of the office
of controller appointed under the Northern Inland
Waters Act, R.S.C. 1970 (1st Supp.), c. 28, is
ultra vires the Governor in Council; that section
11 of the Regulations passed under the said Act is
also ultra vires; that authorization N3A6-0791 to
Esso relative to the construction of causeways, and
authorization N3A3-0093 to Esso relating to refin
ery injection, in the Northwest Territories, alleged
ly detrimental to the members of the plaintiffs, are
illegal and without lawful foundation.
By way of an affidavit in support of the motion
Esso's project manager says that the water used
pursuant to the said authorizations is critical to
Esso in the production of oil by water flood, that
the water so used does not have any detrimental
effect upon the plaintiff associations, and that Esso
has a vital interest in protecting its rights and in
disputing such alleged detrimental effect to the
plaintiffs.
Under Rule 1716(2)(b) the Court may at any
stage of an action 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 and dispute in the action may be effectual
ly and completely determined, to be added as a
party. The defendant Her Majesty The Queen was
not represented at the hearing of this motion but
her solicitor informed Esso's counsel that she
would consent to the order joining the applicant as
defendant.
A person seeking to be joined as a party defend
ant to an action ought to be so joined if he can
show that some of his legal rights might be affect
ed by the outcome of the case, and if the Court has
jurisdiction in the matter over the proposed
defendant. Of course, the mere consent of the
applicant to be joined and the agreement of the
defendant does not create jurisdiction where none
exists.
At the outset of the hearing of this application I
expressed grave doubts that this Court would have
jurisdiction to entertain this action by the plain
tiffs against Esso. While this Court undoubtedly
has the competence to hear an action against the
Queen in right of Canada seeking a determination
as to whether or not certain sections of the North
ern Inland Waters Act or Regulations passed
thereunder are ultra vires, it does not follow that
subjects may take action against one another
under the provisions of that Act before the Federal
Court of Canada. In Alda Enterprises Limited v.
The Queen et al.' my brother Collier J. held that
while the plaintiff may have had an action for
damages against the Crown before this Court, it
did not show that its proceedings against the Town
of Faro were supported by "existing and applicable
federal law" and therefore could not obtain a
judgment against the Town. He suggested a very
practical test to determine the question of jurisdic
tion over one particular defendant [at pages
110-1111:
A sometimes useful 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 was not joined in an action against other
defendants over whom there properly is jurisdiction. When that
test is used here in respect of the plaintiff's claim against the
' Alda Enterprises Limited v. The Queen, Commissioner of
the Yukon Territory, Government of the Yukon Territory, and
Town of Faro and Cyprus Anvil Mining Corporation, [1978] 2
F.C. 106 (F.C.T.D.).
Town of Faro, the answer must be, No. Mr. Parker frankly
conceded that answer. He said that, in those circumstances,
jurisdiction would lie with the Supreme Court of the Yukon
Territory. I assume the applicable law then would be the
statutory and common law of the territory.
In Waterside Cargo Cooperative v. National
Harbours Board 2 the Court refused to join a party
as defendant to an action where no cause of action
based on federal law can be asserted against it.
Collier J. underlined that there was no procedure
under the Federal Court Rules whereby persons
whose rights may be affected, but against whom
no cause of action lies, can be added as a party
defendant 3 .
In the course of the hearing, counsel for Esso
referred to Chitty et al. v. Canadian Radio-televi
sion and Telecommunications Commission 4 . That
was also an application for an order adding a
defendant (actually two defendants) to an action.
The action had been launched by members of a
community association for a declaration that the
Broadcasting Act, R.S.C. 1970, c. B-11 does not
allow the CRTC to decide on applications for
transfer of control over cable television licenses.
The applicants claimed that the declaratory relief
sought by the plaintiffs, if granted, would seriously
affect their legal rights and, in effect, would sub
ject their licenses to challenges by the plaintiffs
and others. The jurisdictional aspect of the matter
was not raised and I held that, in order to ensure
that the action be effectually and completely
determined, the two applicants be joined as parties
defendant in the action.
2 (1979), 107 D.L.R. (3d) 576 (F.C.T.D.).
3 Counsel for the applicant invoked Rule 5 (the gap rule) but
did not show that the Northwest Territories Rules of Court
[The Supreme Court Rules, SOR/79-768] provided such a
procedure. Northwest Territories Rule 48 is substantially simi
lar to our Rule 1716.
Stephen Chitty, Dorothia Atwater, Wayne Kerr, Sharron
Lang, David Coulson, Ulla Sorrenson, Peter Hay and The
Canadian Broadcasting League v. Canadian Radio-television
and Telecommunications Commission, [1978] 1 F.C. 830
(F.C.T.D.).
That decision was made before the full impact
of two Supreme Court of Canada decisions affect
ing the jurisdiction of the Federal Court, namely
McNamara Construction (Western) Limited et al.
v. The Queen et a1. 5 and Quebec North Shore
Paper Company et al. v. Canadian Pacific Limited
et a1. 6 , both of which decisions were raised by
counsel in the Alda case. The gist of the Supreme
Court decisions is that there must be "existing and
applicable federal law" which can be invoked to
support any proceedings before this Court. Had
the matter been raised in the Chitty case, one
might have argued that the Broadcasting Act was
sufficient federal legislation to support an action
against the CRTC and the two parties licensed
under that Act.
The question here is whether the Northern
Inland Waters Act is sufficient federal legislation
to support an action, not only against the Queen
with a view to obtain certain declarations as to the
validity of some sections of the Act and the Regu
lations, but also against a licensee, such as Esso,
under the Act. In other words, could the Dene
Nation and the Metis Association properly launch
an action in this Court against Esso, apart from
any action they may have against the Queen? Esso
has certainly not shown to my satisfaction under
what section of the Act, and for what purpose, the
plaintiffs could direct any such proceedings
against Esso 7 . The sole issue that will be deter
mined at the trial of this action will be the validity
of some sections of the Regulations and the Act.
On that issue the interests of Esso are not different
from those of Her Majesty The Queen: both sup
s McNamara Construction (Western) Limited and Fidelity
Insurance Company of Canada and Her Majesty The Queen
and J. Stevenson & Associates and Stevenson, Raines, Barrett,
Hutton, Seaton & Partners and Lockerbie & Hole Western
Limited and J. Stevenson & Associates and Stevenson, Raines,
Barrett, Hutton, Seaton & Partners and Her Majesty The
Queen, [1977] 2 S.C.R. 654.
6 Quebec North Shore Paper Company and Quebec and
Ontario Transportation Company Limited and Canadian
Pacific Limited and Incan Ships Limited, [1977] 2 S.C.R.
1054.
7 The Act creates offences with respect to persons who violate
certain sections thereof, but subsection 37(2) provides that no
civil remedy is suspended or affected by reason of those
offences. Any such civil remedy would be dispensed by the local
courts, not the Federal Court.
port the validity of the legislation and of any
authorizations, or licenses, issued thereunder.
This application therefore to join the applicant
as defendant is denied with costs.
ORDER
The application is denied with 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.