T-2230-89
Edelbert Tetzlaff and Harold Tetzlaff (Appli-
cants)
v.
Minister of the Environment (Respondent)
and
Saskatchewan Water Corporation (Intervenor)
INDEXED AS: TETZLAFF V. CANADA (MINISTER OF THE ENVI
RONMENT) (T.D.)
Trial Division, Muldoon J.—Winnipeg, January
23; Ottawa, February 4, 1991.
Practice — Parties — Intervention — Supplementary rea
sons for order relegating Sask. Water to intervenor status —
Société des Acadiens du Nouveau-Brunswick Inc. et al. v.
Association of Parents for Fairness in Education et al. holding
jurisdiction of provincial superior courts re: practice and
procedure, except as modified by legislation, that of English
High Court of Chancery — Chancery having discretion to
grant leave to appeal to non-party — Exchequer and Federal
Courts successors to High Court of Chancery — Common law
inherent jurisdiction over Court's process and parties may be
exercised by judicial discretion, unless forbidden by statute —
Extent of permissible jurisdiction to be determined according
to Constitution Act, 1867 ss. 92, 96 or 101 — Court exercising
discretion on both common law and equitable principles to do
justice pursuant to R. 5, by analogy, in exercising power
accorded by R. 1010(3).
Practice — "Gap" Rule — Where Federal Court Act, s. 2
forbidding participation as respondent, Court exercising dis
cretion on common law and equitable principles to do justice
pursuant to R. 5 — R. 1010 invoked by analogy to grant
intervenor status — R. 5 may be invoked by both divisions of
Court.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Constitution Act, 1867, 30 & 31 Viet., c. 3 (U.K.) (as
am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule
to the Constitution Act, 1982, Item 1) [R.S.C., 1985,
Appendix II, No. 5], ss. 92(14), 96, 101.
Federal Court Act, R.S.C., 1985, c. F-7, ss. 2, 3, 4.
Federal Court Rules, C.R.C., e. 663, RR. 5, 1010(3).
CASES JUDICIALLY CONSIDERED
APPLIED:
Société des Acadiens du Nouveau-Brunswick Inc. et al.
v. Association of Parents for Fairness in Education et al.,
[1986] 1 S.C.R. 549; (1986), 69 N.B.R. (2d) 271; 27
D.L.R. (4th) 406; 177 A.P.R. 271; 66 N.R. 173; confg.
Société des Acadiens du Nouveau-Brunswick Inc. and
Association de Conseillers Scolaires Francophones du
Nouveau-Brunswick v. Minority Language School Board
No. 50 (defendant) and Association of Parents for Fair
ness in Education, Grand Falls District 50 Branch
(intended intervenor) (1984), 54 N.B.R. (2d) 198; 8
D.L.R. (4th) 238; 140 A.P.R. 198; 8 Admin. L.R. 138
(C.A.); Sobeys Stores Ltd. v. Yeomans and Labour
Standards Tribunal (N.S.), [1989] 1 S.C.R. 238; (1989),
90 N.S.R. (2d) 271; 57 D.L.R. (4th) 1; 230 A.P.R. 271;
25 C.C.E.L. 162; 89 CLLC 14,017; 92 N.R. 179; Attor-
ney-General for Ontario and Others v. Attorney-General
for Canada and Others and Attorney-General for
Quebec, [1947] A.C. 127 (P.C.).
COUNSEL:
Allan W. Scarth, Q.C. and Gordon H. A.
Mackintosh for applicants.
Craig J. Henderson for respondent Minister
of the Environment.
D. E. Gauley, Q.C., C. Wheatley and R. G.
Kennedy for intervenor Saskatchewan Water
Corporation.
SOLICITORS:
Thompson, Dorfman & Sweatman, Win-
nipeg, for applicants.
Deputy Attorney General of Canada for
respondent Minister of the Environment.
Gauley & Company, Saskatoon, Saskatche-
wan and Saskatchewan Water Corporation
for intervenor Saskatchewan Water Corpora
tion.
The following are supplementary reasons for
order rendered in English by
MULDOON J.: These reasons supplement those
rendered herein on February 1, 1991, concerning
the status of the Saskatchewan Water Corporation
(Sask. Water).
Omitted from the reasons rendered on February
1, 1991 was consideration of the effectively unani
mous decision of the Supreme Court of Canada in
Société des Acadiens du Nouveau-Brunswick Inc.
et al. v. Association of Parents for Fairness in
Education et al., [1986] 1 S.C.R. 549. The matter
of inherent jurisdiction to grant leave to appeal to
a non-party was fully analyzed and the inherent
jurisdiction found by La Forest J.A., as he then
was, in the New Brunswick Court of Appeal
[(1984), 54 N.B.R. (2d) 198], upheld and con
firmed unanimously by the Supreme Court of
Canada. Naturally, it is not a perfect mesh with
this case, for those are extremely rare, but it gives
a lively sense of the law.
A brief quotation from the headnote of the
Société des Acadiens case will serve to focus on
the issue [at pages 550-551]:
(I) The Jurisdictional Issue
Per curiam: There is no basis for this Court to interfere with
the Court of Appeal's decision to grant respondent's applica
tions for leave to appeal and for an extension of time for
appealing. The New Brunswick Court of Appeal had inherent
jurisdiction under s. 8(2) of the Judicature Act to grant leave
to appeal to a non-party. The jurisdiction of the Court of
Appeal with respect to practice and procedure is except as
modified by legislation, essentially that exercised by the High
Court of Chancery in England. A review of the cases of that
Court indicates that in a proper case the practice of the Court
was to permit a grant of leave to appeal to a person not a party
to an action. The Court of Appeal, under its Rules of Court,
also had jurisdiction to grant the application for an extension of
time. Such jurisdiction was also present in the earlier chancery
practice in the case of an application for leave to appeal
brought by a non-party and the present rules did not affect that
jurisdiction. No one factor or group of factors was determina-
tive of how the Chancery Court would exercise its discretion in
a given situation; rather, it was a combination of the relevant
factors. In the present case, the Court of Appeal, acting within
its jurisdiction, took into consideration all the relevant factors
and granted the applications. It exercised its discretion in a
judicial manner and its decision is not subject to appeal for
error. [Emphasis not in original text.]
The High Court of Chancery exercised a pre-emi
nently equitable jurisdiction, and it was no less the
antecedent of the Exchequer Court and the Feder
al Court duly created by Parliament pursuant to
section 101 of the Constitution Act, 1867 [30 &
31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982,
1982, c. 11 (U.K.), Schedule to the Constitution
Act, 1982, Item 1) [R.S.C., 1985, Appendix II,
No. 5]], than it was the antecedent of the provin
cial superior courts created by the respective pro-
vincial legislatures pursuant to section 92, head 14
of the same constitutional Act.
Sections 3 and 4 of the Federal Court Act,
R.S.C., 1985, c. F-7 and amendments thereto val
idly enact:
3. The court of law, equity and admiralty in and for Canada
now existing under the name of the Federal Court of Canada is
hereby continued as an additional court for the better adminis
tration of the laws of Canada and shall continue to be a
superior court of record having civil and criminal jurisdiction.
4. The Court shall consist of two divisions, called the Federal
Court — Appeal Division (which may be referred to as the
Court of Appeal or Federal Court of Appeal) and the Federal
Court — Trial Division.
Thus the Act establishes one Federal Court with
two divisions, successor to the Exchequer Court of
Canada and by historical roots also a successor to
the High Court of Chancery. It hardly bears repe
tition that section 101 conferred on Parliament not
only the jurisdiction to establish the Supreme
Court of Canada but also the Federal Court in two
divisions "for the better administration of the laws
of Canada", and notwithstanding anything in this
(constitutional) Act. It is rewarding in this regard
to revisit the judgment of the Judicial Committee
of the Privy Council in Attorney-General for
Ontario and Others v. Attorney-General for
Canada and Others and Attorney-General for
Quebec, [1947] A.C. 127; Olmsted, vol. 3, at page
508, the judgment whereby the overriding power
of Parliament, pursuant to the same section 101, to
abolish appeals to the Privy Council was interpret
ed to be valid and supreme. The effect of that
"notwithstanding" clause in section 101 was
definitively stated by Lord Jowitt, Lord Chancel
lor, and reported at pages 153 A.C.; 535 Olmsted.
Of further note are these words of the Board
written by the Lord Chancellor (at pages 151
A.C.; 533 Olmsted):
The judicial and legislative spheres are not coterminous, provin
cial courts determining all questions, except those for which a
special court is set up under s. 101, whether the rights of the
parties spring from the common law or Dominion or provincial
statutes. [Emphasis not in original text.]
On this basis, it is logical that the inherited antece
dent jurisdiction, especially in procedural issues, of
so-called section 96 courts and section 101 courts
is to be determined on the same basis. Courts in
Canada have, by their nature, inherent jurisdiction
to control their own process, unless forbidden by
statute, and a fortiori so do so-called statutory
courts. Such basis was determined in regard to
courts created for and with section 96 judges by
Madame Justice Wilson for herself and Dickson
C.J., McIntyre and Lamer JJ. in Sobeys Stores
Ltd. v. Yeomans and Labour Standards Tribunal
(N.S.), [1989] 1 S.C.R. 238 where it is shown how
to access those English antecedents, as was done in
the Société des Acadiens case.
Accordingly, the Court concludes that the
common law inherent jurisdiction (sometimes also
called implied jurisdiction, even though nothing
detracts from its true inherence) over this Court's
process and parties may be exercised fully and
fairly by judicial discretion, unless forbidden by
statute. This Court is no more bereft of ancestors
or equitable jurisdiction than the provincial supe
rior courts, which are all statutory courts, too. The
extent of permissible jurisdiction is to be deter
mined according, respectively, to section 92, head
14, with section 96's jurisprudential gloss; or
according to section 101 with its particular but
more restrictive gloss; and their respective "genet-
ic" faculties as determined in Société des Acadiens
and Sobeys Stores, both above cited.
In the Société des Acadiens case, it is reported
(at page 586), that Mr. Justice La Forest had
noted that in part of the New Brunswick rules the
word "court", as there defined, referred only to the
Queen's Bench and not to the Court of Appeal. In
the Rules of this Court [Federal Court Rules,
C.R.C., c. 663], however, «Court» means the Fed
eral Court of Canada and, according to the con
text, shall be taken as referring to the Trial Divi
sion or the Court of Appeal, or both. Here, Rule 5
may clearly be invoked by both divisions; and Rule
1010, with which this judge made the analogy to
define Sask. Water's right to appeal, in taking part
in these proceedings as an intervenor, although an
admiralty Rule for actions in rem, could be so
invoked by the Appeal Division in a variety of
situations.
In summation, the Court, exercises its discretion
on both common law and equitable principles to do
justice pursuant to Rule 5, by analogy, in exercis
ing the power accorded by Rule 1010(3).
Although relegated to the status of intervenor,
Sask. Water's rights in taking part in this proceed
ing are defined to include a right of appeal. The
above cited jurisprudence, especially the Société
des Acadiens judgment, give the rational basis for
this conclusion. The only permission which the
Court cannot accord is to permit that creature of
provincial legislation, Sask. Water, to be a
respondent in this section 18 proceeding, for that is
expressly forbidden by the very definition of a
"federal board, commission or other tribunal" in
section 2 of the Federal Court Act.
In all other respects the Court's reasons ren
dered on February 1, 1991, in this matter of
standing, are hereby confirmed. These reasons
ought to be read along with those reasons. The
consequential order made also on February 1,
1991, is also confirmed, unamended.
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.