A-197-91
Saskatchewan Water Corporation (Appellant)
v.
Edelbert and Harold Tetzlaff and the Minister of
the Environment (Respondents)
A-203-91
Saskatchewan Water Corporation (Appellant)
v.
Edelbert and Harold Tetzlaff and the Minister of
the Environment (Respondents)
A-1010-91
Saskatchewan Water Corporation (Appellant)
v.
Edelbert and Harold Tetzlaff (Respondents)
and
The Minister of the Environment (Cross-appellant)
INDEXED AS: TETZLAFF V. CANADA (MINISTER OF THE
ENVIRONMENT) (CA.)
Court of Appeal, Heald, Hugessen and MacGuigan
JJ.A.—Winnipeg, November 28; Ottawa, December
16, 1991.
Judges and courts — Trial Judge, ex mero motu, for second
time striking party as respondent after Court of Appeal
expressly disapproving of his earlier order striking it and after
another panel of Court of Appeal reinstating it — Breach of
rule of stare decisis — Trial Judge bound to follow decisions of
his Court of Appeal, particularly in cause of which seized —
Order counterproductive as impeding progress of litigation —
Waste of public and private funds as contrary to two recent
appellate decisions and bound to be appealed — Application
to renew previous order when compliance therewith effectively
nullified should be addressed to Court, not to Trial Judge per
sonally — Court to determine which judge to hear matter —
Judge giving original order not always best suited to enforcing
order as may be inclined to overlook defects or read into own
words things not there.
Practice — Res judicata — Trial Judge's order striking
party as respondent after Court of Appeal expressly disapprov
ing of his earlier order striking same party and after another
panel of Court of Appeal reinstating, it breach of rule of res
judicata — Trial Judge bound to follow Court of Appeal deci
sion settling party's status.
Practice — Parties — Standing — Saskatchewan Water Cor
poration necessary party in s. 18 proceeding for mandamus to
compel Minister to comply with EARPGO, or to quash its
licence under International River Improvements Act if non
compliance.
Practice — Judgments and orders — Court order not to
indicate particular judge personally seized of matter — Matter
for administrative direction in appropriate circumstances —
Order must be complied with and only varied by another order
or on appeal — Effect of direction same, but Court retaining
flexibility needed to deal with judicial business — Only issues
of compliance with and enforcement of earlier order properly
raised in context of lis.
Judicial review — Prerogative writs — Certiorari — Raf-
ferty-Alameda Dam Project — Application for mandamus to
compel Minister to comply with EARPGO by appointing panel
to conduct public review, or, if non-compliance, to quash Min
ister's decision granting licence to Saskatchewan Water Cor
poration under International River Improvements Act — Trial
Judge erred in striking Corporation as respondent based on
belief only federal board, commission or other tribunal may be
respondent in s. 18 proceedings — S. 18 creating jurisdiction
over subject-matter (decisions of federal boards, commissions
or other tribunals), not persons — Within Trial Division's
jurisdiction ratione materiae under s. 18 to quash licence.
Federal Court jurisdiction — Trial Division — Trial Divi
sion having jurisdiction over s. 18 proceeding for mandamus
requiring Minister of Environment to comply with EARPGO by
appointing panel to conduct public review and to quash Sas-
katchewan Water Corporation's licence under International
River Improvements Act if non-compliance — On application
to renew order when compliance nullified, outside jurisdiction
to order seized of matters and persons not before Court and
without regard to scope of original application — Order
declaring report filed day before application for motion for
directions as to how panel should proceed returnable "no
report" — Motion for directions unrelated to issues of enforce-
ment of or compliance with original order requiring appoint
ment of panel, only issues properly raised in context of lis.
These were appeals from three orders of Muldoon J. The
Tetzlaff brothers, property owners directly affected by the con
struction of the proposed Alameda dam, had commenced sec
tion 18 proceedings against the Minister of the Environment
and Saskatchewan Water Corporation, seeking certiorari to
quash the licence issued to the Saskatchewan Water Corpora
tion pursuant to the International River Improvements Act and
mandamus requiring the Minister to comply with EARPGO by
causing the project to be referred for public review by a panel.
On November 30, 1989, Muldoon J., ex mero motu, struck Sas-
katchewan Water Corporation as a party respondent on the
ground that it could not be a party respondent in section 18
proceedings since it was not a federal board, commission or
other tribunal as defined in Federal Court Act, section 2. On
December 28, 1989 his Lordship issued an order of mandamus
directing the Minister of the Environment to appoint an Envi
ronmental Assessment Panel to conduct a public review of the
Rafferty-Alameda Dam Project, and stipulating that failure to
do so within a fixed time limit would result in the quashing of
the licence. Although a panel was duly appointed, it later
resigned. On appeal, the Court of Appeal reinstated Saskatche-
wan Water Corporation as a party respondent. That decision
was given on consent and was based on an earlier decision of
this Court which had specifically disapproved of Muldoon J.'s
ex mero motu order. The Court dismissed the appeal from the
order of mandamus on the merits. The order quashing the
licence in the event of non-compliance was upheld as a means
of enforcing the order of mandamus. When no new panel had
been appointed three months after the resignation of the first,
the Tetzlaffs filed a notice of motion of an application before
Muldoon J. for an order enforcing compliance with the order
of mandamus.
The first appeal concerns the order of Muldoon J., dated
February 1, 1991, wherein he once again ex mere motu struck
out the Corporation, as party respondent in the Trial Division
and ordered that it might participate as an intervener. A new
panel was appointed on February 5.
The second appeal concerned an order dated February 8,
1991, wherein Muldoon J. ordered that he would continue to
be seized of the matter. Further to his view that there was need
for continuing review, Muldoon J. ordered in paragraph 2 that
the Court would remain seized of any matter between the par
ties, their agents, servants and contractors.
The day before the Tetzlaffs' motion for directions as to the
manner in which the panel should conduct its review, the ques
tions it should consider, the material to be filed by the parties
and the procedure to be followed, was returnable, the new
panel filed its report. At the opening of the hearing, the Minis
ter and the Corporation argued that the Court lacked jurisdic
tion since the subject-matter of the proceedings was exhausted.
The third appeal concerned the order dated September 30,
1991 wherein Muldoon J. declared the panel's report to be "not
any report at all".
Held, the appeal and cross-appeal should be allowed; the
order of September 30, 1991 should be set aside; and the appli
cation for directions should be dismissed.
The order striking the Corporation as party respondent a
second time was improper. It is a trial judge's duty to follow
the decisions of his Court of Appeal, particularly when the
decision is given in the very cause of which the judge is seized.
The Judge was in breach of the rules of stare decisis and res
judicata because the status of the Corporation for the purposes
of this record had been settled by the Court of Appeal. The
order was also wrong in so far as it was based on the belief that
only a federal board, commission or other tribunal may be a
respondent in proceedings taken under section 18. Section 18
does not create jurisdiction over persons, but over the decisions
of federal boards, commissions or other tribunals. Often per
sons constituting such board, commission or other tribunal are
not parties to the proceedings before the Court, and parties to
proceedings before a federal board, commission or other tribu
nal are always properly made parties when those proceedings
are the subject of an attack under section 18. The Trial Divi
sion had jurisdiction to quash the decision of the Minister (a
federal board, commission or tribunal) ratione materiae under
section 18. The Corporation's interest in the proceedings was
manifest because its licence was at risk. It was and is a neces
sary party. Finally, the order was counterproductive. No one
sought it. It did not advance matters, but impeded the progress
of litigation. It was contrary to two recent decisions of two dif
ferent panels of the Court of Appeal. It was bound to be
appealed and such appeal could only result in the needless
expenditure of both public and private funds.
Compliance with the order of mandamus was effectively
nullified by the panel's resignation. Although an application
requesting effectively a renewal of the order previously made
was appropriate given the length of time during which the
Minister had done nothing about renewing compliance, it
should have been made to the Court, not to Muldoon J. specifi
cally. It is for the Court, not the parties, to determine which
judge will hear a particular matter. Paragraph 2 should be
struck as it asserted jurisdiction over matters and persons not
then before the Court and without regard to the scope of the
original section 18 application, which was restricted to the
appointment of a panel to comply with EARPGO and the
quashing of the licence in the event of non-compliance. A
Court order should not purport to make a specific judge per
sonally seized of any matter. This is, in appropriate circum
stances, the subject-matter of an administrative direction. An
order must be complied with and can only be varied by another
order or on appeal; a direction has the same practical effect,
but allows the Court the flexibility needed to deal with judicial
business. This was not a case where it was desirable that an
individual judge should retain control of the proceedings. No
order was necessary to give the Court jurisdiction to control its
own process, and enforcement of the Court's orders is not
something which the judge who gave the original order is nec
essarily best suited to do—if his order is defective the judge
may be inclined to overlook the deficiencies or to read into his
own words things which are not there.
The motion for directions went far beyond any question of
enforcement of or compliance with the order of mandamus
relating to the appointment of a panel. The Court should have
refused to entertain the motion for directions. Enforcement and
compliance were the only issues which could properly be
raised in the context of the /is with which the Court had been
seized.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Federal Court Act, R.S.C., 1985, c. F-7, ss. 2, 18.
International River Improvements Act, R.S.C., 1985, c.
I-20.
CASES JUDICIALLY CONSIDERED
APPLIED:
Friends of the Oldman River Society v. Canada (Minister
of Transport), [1990] 2 F.C. 18; (1990), 68 D.L.R. (4th)
375 (C.A.).
REVERSED:
Tetzlaff v. Canada (Minister of the Environment), [1991] 2
F.C. 206; (1991), 47 Admin. L.R. 275, at p. 286; 40
F.T.R. 104, at p. 112 (T.D.); Tetzlaff v. Canada (Minister
of the Environment), [1991] 2 F.C. 212 (1991), 47 Admin.
L.R. 275; 40 F.T.R. 112 (T.D.); Tetzlaff v. Canada (Minis-
ter of the Environment) (1991), 40 F.T.R. 114 (F.C.T.D.);
Tetzlaff v. Canada (Minister of the Environment), [1992] 1
F.C. 261 (T.D.).
CONSIDERED:
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 (note); 121 N.R. 385 (C.A.);
Canadian Wildlife Federation Inc. v. Canada (Minister of
the Environment), [1990] 1 F.C. 595; (1989), 32 F.T.R. 81
(T.D.); affg Cdn. Wildlife Federation Inc. v. Canada
(Minister of the Environment) (1989), 4 C.E.L.R. (N.S.)
201; 31 F.T.R. 1 (F.C.T.D.).
COUNSEL:
David E. Gauley, Q.C. and R. G. Kennedy, Clif-
ford B. Wheatley and David Wilson for appel
lant.
Alan W. Scarth, Q.C. and Gordon H. A. Mackin
tosh for respondents Edelbert and Harold Tet-
zlaff.
Craig J. Henderson for respondent (cross-appel
lant in A-1010-91) The Minister of the Environ
ment.
SOLICITORS:
Gauley & Co., Saskatoon; Saskatchewan Water
Corporation, Moose Jaw; and Osler, Hoskin &
Harcourt, Ottawa, for appellant.
Thompson, Dorfman & Sweatman, Winnipeg,
for respondents Edelbert and Harold Tetzlaff.
Deputy Attorney General of Canada for respon
dent (cross-appellant in A-1010-91) The Minis
ter of the Environment.
The following are the reasons for judgment ren
dered in English by
HUGESSEN J.A.: These three appeals from three
orders of Muldoon J. in the Trial Division [Tetzlaff v.
Canada (Minister of the Environment), [1991] 2 F.C.
206; Tetzlaff v. Canada (Minister of the Environ
ment), [1991] 2 F.C. 212; Tetzlaff v. Canada (Minis-
ter of the Environment, [ 1992] 1 F.C. 261; Tetzlaff v.
Canada (Minister of the Environment) (1991), 40
F.T.R. 114] were heard together and it is convenient
to dispose of them by a single set of reasons.
The litigation between these parties constitutes a
long and continuing odyssey, only a part of which
has been in the Federal Court. The first part of the
background can best be given by quoting from the
reasons for judgment of Iacobucci C.J. (as he then
was) in the earlier decision of this Court rendered
December 21, 1990: 1
Background
The Souris River Basin consists of a number of inter-related
rivers which generally rise in Saskatchewan, flow into North
Dakota, then back into Manitoba and ultimately into Lake
Winnipeg. In particular, the Souris River follows this pattern
having its source in Saskatchewan, flowing into North Dakota
and back into Manitoba where it enters the Assiniboine River.
The Souris River, like other "prairie rivers", is dependent on
precipitation, snow melt in the spring and rainfall during other
times of the year such that often there is either a flood or
drought condition that results. Understandably water retention,
storage and distribution structures in the Basin have been dis
cussed and developed over many years.
On February 12, 1986, the Premier of Saskatchewan, the
Honourable Grant Devine, announced that Saskatchewan
would construct the Project. Included in the Project was the
building of two Dams: the Rafferty Dam on the Souris River
near the town of Estevan, and the Alameda Dam on Moose
Mountain Creek, which flows into the Souris near Alameda.
The objectives of the Project include flood control for Sas-
katchewan, North Dakota and Manitoba, improved water-
based recreation facilities and irrigation facilities, greater
regional and municipal water supply security, and the provi
sion of cooling water for the Shand Thermal Electric Generat
ing Station being constructed near Estevan.
The Government of Saskatchewan created the Souris Basin
Development Authority ("SBDA") as a Crown corporation to
plan, implement, and manage the Project as agent for Sask.
Water, another Saskatchewan Crown corporation. SBDA pre
pared a provincial environmental impact statement which was
publicly released. Subsequently a board of inquiry was consti
tuted to review the Project and to make recommendations to
the Saskatchewan Minister of the Environment and Public
Safety who eventually granted authority to proceed with the
Project subject to a number of conditions. On February 23,
1988, Sask. Water granted SBDA approval to start construction
of the Rafferty Dam.
On June 17, 1988, the Minister issued a licence to Sask.
Water pursuant to the International River Improvements Act
with respect to the Project, having determined that the review
by Environment Canada of the Saskatchewan environmental
impact statement together with the conditions attached to the
Saskatchewan licence were sufficient to protect the interests of
the Federal Government in connection with the Project.
1 Canadian Wildlife Federation Inc. v. Canada (Minister of
the Environment), [1991] 1 F.C. 641 (C.A.), at pp. 646-648.
However, the federal licence was quashed by the order of
Cullen J. on April 10, 1989 with mandamus issuing to the Min
ister to comply with the EARPGO [Environmental Assessment
and Review Process Guidelines Order, SOR/84-467]. (Cana-
dian Wildlife Federation Inc. v. Canada (Minister of the Envi
ronment), [1989] 3 F.C. 309 (T.D.). According to Cullen J., the
Project has an environmental impact on a number of areas of
federal responsibility: international relations, transboundary
water flows, migratory birds, interprovincial affairs, and fish
eries. Id. at p. 323.) This Court upheld the decision of Cullen J.
in this respect. (Can. Wildlife Fed. Inc. v. Can. (Min. of Envi
ronment), [1990] 2 W.W.R. 69 (F.C.A.).)
The Minister then initiated a procedure to comply with
EARPGO by having:
(1) A draft Initial Environmental Evaluation prepared and
released to the public in June of 1989;
(2) A public consultation process chaired by an independent
Moderator and designed to receive public opinion on the
draft Initial Environmental Evaluation; and
(3) The preparation of the final Initial Environmental Evalu
ation ("IEE") [The final IEE consists of three volumes: Vol
ume I: Technical Report; Volume II: Public Consultation
Process; and Volume III: Moderator's Report. The IEE
appears as Exhibits to the affidavits of Gordon H. A. Mack
intosh of October 16, 1989 (Exhibit A) and of Denis A.
Davis of November 6, 1989 (Exhibit D). See Tabs 8 and 11,
respectively, of the Appeal Book.] in August of 1989.
The purpose of the IEE was to provide the Minister with
certain information which together with submissions from the
public could be used by the Minister to decide whether to issue
a second licence in conformity with the EARPGO. [See IEE,
Volume 1, c. 12-1.] Public meetings were held in Saskatche-
wan, Manitoba and North Dakota and written submissions
were received.
On August 31, 1989, a second licence for the Project was
granted by the Minister under the IRIA permitting construction
to proceed subject to the implementation of specified mitiga
tion measures.
From this point, I must take up the story in my
own words and give a brief outline of this litigation
in so far as it bears on the present appeals.
On October 16, 1989, Edelbert and Harold Tet-
zlaff, the respondents in the present appeals and own
ers of property which was to be directly affected by
the construction of the proposed Alameda dam,
launched section 18 [Federal Court Act, R.S.C.,
1985, c. F-7] proceedings in the Trial Division
against the federal Minister of the Environment and
Saskatchewan Water Corporation. It is important to
note that those proceedings sought an order of certio-
rani to quash the licence issued by the respondents to
the Corporation pursuant to the International River
Improvements Act [R.S.C., 1985, c. I-20] and an
order of mandamus requiring the Minister to comply
with EARPGO by causing the project to be referred
for public review by a panel.
On November 30, 1989, Muldoon J., ex mero
motu, struck out Saskatchewan Water Corporation as
a respondent in the style of cause in the Trial Divi
sion [Canadian Wildlife Federation Inc. v. Canada
(Minister of the Environment), [ 1990] 1 F.C. 595] on
the ground that, since the Corporation was not a fed
eral board, commission or tribunal as defined in sec
tion 2 of the Federal Court Act, it could not be a
party respondent in section 18 proceedings.
On December 28, 1989, Muldoon J. issued an
order of mandamus, the substantive terms of which
read as follows:
1. THIS COURT ORDERS AND ADJUDGES that the said federal Minis
ter of the Environment do forthwith, and in any event not later
than 5:00 p.m. Central Standard Time on Tuesday, January 30,
1990, constitute and appoint an Environmental Assessment
Panel under and pursuant to sections 20, 21 22 et seq. of the
said Environmental Assessment and Review Process Guide
lines Order, S.O.R./84-467, as the said Minister is lawfully
obliged to do, to require and permit said Panel to conduct a
public review of all the significant adverse environmental
effects, called significant and moderate impacts not mitigable
with known technology for which mitigation is not factually
provided, mentioned in Volume 1, Technical Report, of the Ini
tial Environmental Evaluation of the Rafferty-Alameda Dam
Project performed by Environment Canada and dated August,
1989, a copy of which Volume 1 is annexed as exhibit "E" Vol.
I to the affidavit of Kenneth A. Brynaert sworn October 6,
1989, and filed in Court file No. T-2102-89; and
2. THIS COURT FURTHER ORDERS that unless the said Minister
(respondent) make timely compliance with the mandamus
order expressed in paragraph 1 above, then as of and no later
than 5:00 p.m. Central Standard Time on Tuesday, January 30,
1990, the aforesaid licence issued by the Minister to the Sas-
katchewan Water Corporation (intervener) pursuant to the
International River Improvements Act shall thereupon be
quashed and set aside absolutely, but not otherwise, pursuant to
this present order of certiorari; and [Appeal Book, pages 100-
101.1
On January 29, 1990, the Minister complied with
Muldoon J.'s order and appointed a panel to conduct
a public review of the project.
On October 12, 1990, the panel resigned. The rea
sons for the resignation are not immediately relevant
to these appeals but have been the subject-matter of
other ongoing litigation between the same parties in
the Saskatchewan Court of Queen's Bench and the
Saskatchewan Court of Appeal.
On November 22, 1990, this Court, seized of an
appeal from the judgment of Muldoon J., re-amended
the style of cause so as to reinstate Saskatchewan
Water Corporation as a party respondent in the pro
ceedings in first instance and as a cross-appellant in
this Court. That decision was given on consent by a
court composed of the Chief Justice and Urie and
Linden JJ.A., and was based on an earlier decision of
this Court in Friends of the Oldman River Society v.
Canada (Minister of Transport) 2 in which Muldoon
J.'s ex mero motu order of November 30, 1989, in
these proceedings, was specifically disapproved.
On December 21, 1990 [[1991] 1 F.C. 641], this
Court constituted as in the preceding paragraph unan
imously dismissed the appeal from the order of Mul-
doon J. of December 28, 1989 [(1989), 4 C.E.L.R.
(N.S.) 201 (F.C.T.D.)]. Briefly; the Court held that
while compliance with EARPGO was obligatory, it
was not a condition precedent to the issuance of the
licence, as the recommendations of the panel would
not in any event be binding on the Minister. 3 The
order quashing the licence in the event of non-com
pliance was upheld as being, in effect, a means of
enforcing the order of mandamus. The Court empha
sized that the purpose of the panel review was to
allow public expression of opinion and information
about the project and that the consequences of disre
garding the panel's report would be political rather
than legal.
2 [1990] 2 F.C. 18 (C.A.).
s In the words of lacobucci C.J. the panel's report is "horta-
tory to but not obligatory on the Minister" (at p. 668).
On January 15, 1991, no new panel having been
appointed to replace the panel which had resigned,
and the judgment ordering the Minister to appoint
such panel having been confirmed by this Court, the
Tetzlaff brothers filed a notice of motion in the Trial
Division, the substantive portion of which reads:
TAKE NOTICE that an Application will be made on behalf of
the Applicants, pursuant to the Reasons For Order of Mr. Jus
tice Muldoon in this matter dated December 28, 1989, before
Mr. Justice Muldoon at The Federal Court of Canada, at Win-
nipeg, Manitoba on Wednesday, the 23rd day of January 1991,
at 10:30 in the forenoon or so soon thereafter as counsel may
be heard for:
1. An Order enforcing compliance with the Order of Manda-
mus issued herein December 28, 1989 requiring the
Respondent Minister to require and permit an environmen
tal assessment panel to conduct a public review of signifi
cant adverse and environmental effects of the Rafferty-
Alameda Dam Project pursuant to the Environmental
Assessment and Review Process Guidelines Order,
S.O.R./84-467; [Appeal Book (A-203-91), page I.]
On February 1, 1991, (with supplementary reasons
issued February 4, 1991), Muldoon J. once again ex
mero motu struck out Saskatchewan Water Corpora
tion as party respondent in the Trial Division, ordered
that the said Corporation might participate as an
intervener, and amended the style of cause accord
ingly. That order is the subject of the first of these
appeals in Court File number A-197-91.
On February 5, 1991, the Minister appointed a new
panel and referred the project to it for review in
accordance with EARPGO.
On February 8, 1991, Muldoon J., noting that a
panel had now been appointed, allowed the Tetzlaffs'
motion for costs, ordered some corrections to the new
panel's mandate, and further ordered that he would
continue to be seized of the matter. This order is the
subject of the second of the present appeals in Court
File number A-203-91.
On August 23, 1991, the Tetzlaffs launched
another motion before Mr. Justice Muldoon seeking
detailed directions with respect to the manner in
which the panel should carry out its mandate. That
motion was returnable on September 11, 1991.
On September 10, 1991, the panel filed its report
with the Minister, with the result that the latter and
Saskatchewan Water Corporation both moved at the
opening of the hearing on September 11, that the
Court should decline jurisdiction since the subject
matter of the proceedings before it was now
exhausted.
On September 30, 1991, Muldoon J. ordered and
adjudged the panel's report to be "not any report at
all" and dismissed the objection to jurisdiction
[[19921 1 F.C. 261]. That order is the subject of the
third of these appeals in Court File number A-1010-
91.
Court File number A-197-91
Clearly, the order of Muldoon J. cannot stand. No
party sought to support it before us and it cannot be
supported. It is, at once, improper, wrong and
counterproductive.
The order is improper because it is the duty of a
trial judge faithfully to follow the decisions of his
Court of Appeal; the more so when the decision is
given in the very cause or matter with which the
judge is seized. Here, the Judge was in breach not
only of the rule of stare decisis but also the rule of res
judicata, for the status of Saskatchewan Water Cor
poration had been definitively and finally settled for
the purposes of this record by this Court's order of
November 22, 1990.
Muldoon J.'s order was also wrong. Clearly he
believes sincerely, perhaps passionately, that he is
right but in my view there can be no doubt that he is
in error. Simply put, that error lies in his apparent
belief that only a federal board, commission or other
tribunal may be a respondent in proceedings taken
under section 18 (other than proceedings against the
Attorney General). Section 18 does not create juris
diction over persons at all but rather over subject-
matter. That subject-matter is the decisions of federal
boards, commissions or other tribunals. Frequently
the persons constituting such board, commission or
tribunal are not necessarily, or even properly, parties
to the proceedings before the Court. By the same
token, parties to proceedings before a federal board,
commission or tribunal are always properly (and usu
ally necessarily) made parties when those proceed
ings, or the results thereof, are the subject of an
attack under section 18 of the Federal Court Act.
In the present case, the Tetzlaffs were seeking an
order in the nature of certiorari to quash and set aside
a decision of the Minister (a federal board, commis
sion or tribunal) granting a licence under the Interna
tional River Improvements Act to Saskatchewan
Water Corporation. Jurisdiction, ratione materiae, lay
in the Trial Division by virtue of section 18. Sas-
katchewan Water Corporation's interest in the pro
ceedings is manifest for its licence was being put at
risk. It was, and is, a necessary party respondent in
those proceedings.
Finally, and with respect, the order under appeal
was counterproductive. No one sought it. It does not
advance matters. On the contrary, it impedes the pro
gress of the litigation. It flies in the face of two recent
decisions of two different panels of this Court. It was
bound to be appealed and such appeal could only
result in the needless expenditure of both public and
private funds. The Court has wasted its time and
effort and so have the parties. The latter, it should be
noted, appellants and respondents both, have no one
to whom they can look to recover the costs needlessly
incurred. Before doing something with such serious
consequences any judge should hesitate and ask him
self earnestly if he is really the only one to be in step.
I would allow the appeal and quash the order of
February 1, 1991. I would alter the style of cause on
these appeals to that shown at the beginning of these
reasons. There can be no order as to costs.
Court File number A-203-91
It will be recalled that this appeal attacks Muldoon
J.'s order of February 8, 1991. That order was given
pursuant to a notice of motion filed January 15, 1991,
the substance of which is reproduced above.
The order of Muldoon J. reads as follows:
1. THIS COURT ORDERS AND ADJUDGES that insofar as they are or
may be omitted from the mandate conferred by the respondent
on the three-member panel of John Archer, William J. Stolte
and Roderick R. Riewe, the terms and conditions expressed in
the first paragraph of this Court's order pronounced on Decem-
ber 28, 1989 shall be included in, or added to the said panel's
mandate forthwith by the respondent, pursuant to the said
Environmental Assessment and Review Process Guidelines
Order, that is:
... said Panel is to conduct a public review of all the signif
icant adverse environmental effects, called significant and
moderate impacts not mitigable with known technology for
which mitigation is not factually provided, mentioned in
Volume I, Technical Report, of the Initial Environmental
Evaluation of the Rafferty-Alameda Dam Project performed
by Environment Canada and dated August, 1989, a copy of
which Volume I is annexed as exhibit "E" Vol. Ito the affi
davit of Kenneth A. Brynaert sworn October 6, 1989, and
filed in Court file No. T-2102-89.
and was confirmed by the Federal Court of Appeal in its unan
imous judgment dated December 21, 1990, (A-48-90), except
insofar as any of the aforementioned mandated duties have
already been fully, carefully and satisfactorily performed by
the panel which resigned on October 12, 1990, unless bringing
the former panel's data, recommendations and public review
up-to-date be necessary or desirable because of the effluxion of
time or inaccessibility to the panel and to the public of the for
mer panel's work and records; and
2. THIS COURT FURTHER ORDERS that in any further applications,
failures, contentions or any matter whatsoever between the
parties, the intervener, their agents, servants and contractors
regarding the aforesaid Rafferty-Alameda Dam Project and the
continuity, suspension, conditions or quashing of the Minis
ter's licence therefor, this Court shall remain seized of these
matters; and it may be convoked on proper, timely notice to
any of the appropriate parties, persons, firms or corporations
above mentioned or any interested person, including the inter-
vener, for such relief by way of judicial review and extraordi
nary remedies as may be granted according to law or equity;
and
3. THIS COURT FURTHER ORDERS AND ADJUDGES that the respon
dent and the intervener do pay the applicants' costs of and inci
dental to this application on a solicitor-and-client basis forth
with after taxation thereof, payable 50% by the respondent and
50% by the intervener; [Appeal Book (A-203-91), pages 49-
50.]
The appellant argues that Muldoon J. was functus
officio and had no jurisdiction to make any order at
all on February 8, 1991. The burden of the argument
is that the motion was made in the original section 18
proceedings which had been launched by the Tet-
zlaffs and that those proceedings had been finally dis
posed of and concluded by Muldoon J.'s order of
December 28, 1989, confirmed by this Court's judg
ment of December 21, 1991. I do not agree.
While it is true that in one sense the section 18 pro
ceedings had been disposed of by Muldoon J.'s order
of December 28, 1989, it will be recalled that that
order required the Minister to appoint a panel to con
duct a public review of the project and ordered the
cancellation of the licence issued to Saskatchewan
Water Corporation in the event that he should fail to
do so. While the Minister had complied timely with
the order to appoint a panel, that compliance was
effectively nullified by the panel's subsequent resig
nation on October 12, 1990. At the time the Tetzlaffs
brought their motion over three months had gone by,
the original order had been confirmed by this Court
and the Minister had apparently done nothing further
about renewing compliance and appointing another
panel to complete the public review. In those circum
stances, it was, in my view, quite proper for the
Tetzlaffs to address themselves to the Court and to
request what was in effect a renewal of the order pre
viously made in this same file. Such an application
should, however, have been made to the Court; it is
not proper for the applicants to do as the introductory
paragraph of this notice of motion appears to do and
address themselves to Muldoon J. specifically. It is
for the Court and not the parties to determine which
judge or judges should hear any particular matter.
When Muldoon J. came to give his order on Febru-
ary 8, 1991, the situation had changed again: three
days earlier the Minister had finally appointed a new
panel to conduct the review. Paragraph 1 of Muldoon
J.'s order, which in effect does no more than ensure
that the new panel's mandate shall be no less exten
sive than that of the old panel, was, in the circum
stances, quite proper.
The same, in my view, is also true of paragraph 3
in which the Minister and Saskatchewan Water Cor
poration were ordered to pay the Tetzlaffs' costs on a
solicitor and client basis. This was truly a case of
compliance at the last possible moment and Muldoon
J. was quite entitled to exercise his discretion as to
costs in the way that he did.
Paragraph 2 of the order under appeal is quite
another matter. In his reasons for order, Muldoon J.
adverted, on two occasions, to his view, that there is a
need for continuing review. He said:
In view of the judgment of the Appeal Division, because the
Minister appointed the panel according to law prior to the pro
nouncement of the Court's order herein, there is now substan
tially no /is to support the order except for costs of these pro
ceedings and a provision for continuing review as further
elaborated hereinafter. [Appeal Book (A-203-91), page 45.]
and again:
On this occasion the Court will give directions which ought
to have been given in the order, as distinct from the Court's
reasons, of December 28, 1989. The way to do so is now
clearer by virtue of the judgment of the Court of Appeal. The
Court retains jurisdiction over this matter, these parties and
Sask Water insofar as an intervener can be bound, in regard to
the same licence for the same Rafferty-Alameda project,
including the requirements of IRIA, so that the parties, and
Sask Water if it chooses to become a party applicant, may on
proper notice to all interested parties and interveners have fur
ther resort to the Court for such relief as to the Court seems
lawful and just, if at any time the office of environmental
review panel becomes vacant, either entirely, or by loss of quo-
rum, before the panel discharges its duty by submitting its
report. The judgment of the Court of Appeal is a matter of res
judicata, as between these parties and Sask Water. [Emphasis
added.] [Appeal Book (A-203-91), page 46.]
The underlined portion makes it quite clear, in my
opinion, what Muldoon J. quite properly had in mind.
He had just lived through a series of events in which
the first panel had resigned and the Minister had had
to be dragged, figuratively, to the courtroom door
before appointing a second panel. The frustration of
the Court's original order of December 28, 1989,
should not be allowed to happen again.
What Muldoon J. did, however, in his formal
order, far surpasses anything called for by the ration
ale given in the reasons. For convenience, I
reproduce again paragraph 2 of that order:
2. THIS COURT FURTHER ORDERS that in any further applications,
failures, contentions or any matter whatsoever between the
parties, the intervener, their agents, servants and contractors
regarding the aforesaid Rafferty-Alameda Dam Project and the
continuity, suspension, conditions or quashing of the Minis
ter's licence therefor, this Court shall remain seized of these
matters; and it may be convoked on proper, timely notice to
any of the appropriate parties, persons, firms or corporations
above mentioned or any interested person, including the inter-
vener, for such relief by way of judicial review and extraordi
nary remedies as may be granted according to law or equity;
This is truly breathtaking in its sweep. It is an
assertion of jurisdiction over matters and persons not
then before the Court and without regard to the lim
ited scope of the original section 18 application
which was restricted to the appointment of a panel to
comply with EARPGO and the quashing of the
licence in the event of non-compliance.
The order also seems to have been meant by Mul-
doon J. (and was certainly so understood by the par
ties) to indicate that Muldoon J. was himself person-
ally seized of the matter and that all subsequent
applications, consequent thereon, should be made to
him alone. This is not a proper subject-matter of an
order of the Court although it may, in appropriate cir
cumstances, be dealt with by a simple administrative
direction. The distinction is not purely academic: an
order must be complied with and can only be varied
by another order or on appeal; a direction may have
the same practical effect but allows the Court, and
particularly its Chief Justice, the necessary flexibility
to deal with the flow of judicial business.
I would add that, in my view, this is not a case in
which it is even desirable that an individual judge
should retain control of the proceedings. I repeat that
the original section 18 application was relatively lim
ited in its scope and was initially dealt with by Mul-
doon J.'s original order of December 28, 1989. It was
only the fortuitous and extraordinary occurrence of
the resignation of the first panel coupled with the
Minister's reluctance to appoint a second panel that
gave rise to the necessity for further proceedings. The
jurisdiction of the Court to entertain such proceed
ings may conveniently be described as a jurisdiction
to control its own process and to ensure that its orders
are complied with. No order is necessary to give the
Court such jurisdiction.
It is also my view that the enforcement of the
Court's orders is not something which the judge who
gave the original order is necessarily best suited to
do; if his order is in some sense defective or deficient
the judge may be too inclined to overlook the blem
ishes or to read into his own words things which are
not there. The matter is, at bottom, one of the judi
cious exercise of discretion and I only make this
additional comment for the purpose of emphasizing
that it was in no way necessary for the application of
January 15, 1991 to be addressed to Muldoon J. per
sonally.
I would allow the appeal by striking out paragraph
2 of the order of February 8, 1991 and re-numbering
the following paragraphs. Since the appellant's suc-
cess on the appeal is limited, I would make no order
as to costs in this Court. The order for costs in the
Trial Division should remain undisturbed.
Court File number A-1010-91
This appeal deals with Muldoon J.'s order of Sep-
tember 30, 1991. It will be recalled that that order
was given following a notice of motion by the
Tetzlaffs filed August 23, 1991; the order dealt pri
marily with a preliminary objection raised by the
Minister and Saskatchewan Water Corporation based
upon the fact that the second panel had reported on
September 10, 1991. It is worthwhile to reproduce
the substance of the motion of August 23, 1991:
TAKE NOTICE that an Application will be made on behalf of
the Applicants, pursuant to the Order of Mr. Justice Muldoon
in this matter dated February 8, 1991, before Mr. Justice Mul-
doon at The Federal Court of Canada, at Winnipeg, Manitoba
on Wednesday, the 11th day of September, 1991 at 10:00
o'clock in the fore noon or so soon thereafter as counsel may
be heard for:
1. An Order enforcing compliance with the Order issued
herein February 8, 1991, (the "Order"), including
a) A direction that the three-member panel of John Archer,
William J. Stolte and Roderick R. Riewe (the "Panel")
shall in the course of the Public Review which the Order
required it to conduct (the "Public Review"), determine
whether the Rafferty-Alameda Dam Project (the "Propo-
sal") is "compatible with a sound development of the
resources and economy of Canada", in accordance with
paragraph 6(h) of International River Improvements Regu
lations:
b) A direction that the Panel require the Intervener to file an
Environmental Impact Statement (the "EIS") and support
ing documents, pursuant to subsection 34(a) of the Envi
ronmental Assessment and Review Guidelines Order
SOR/84-467; that the Respondent ensure that this respon
sibility of the Intervener is fulfilled as required by para
graph 33(1)(a) thereof; and that the Panel issue the appro
priate Guidelines under subsection 30(1) thereof;
c) A direction that the EIS contain an "economic analysis of
the direct and indirect benefit and costs of and resulting
from" the Proposal in accordance with paragraph 6(g) of
the International River Improvement Regulations (the
`Benefit/Cost Analysis"), the Benefit/Cost analysis to
include an analysis of the direct and indirect costs of the
Proposal in the areas of federal responsibility as well as in
the areas of provincial responsibility, and an analysis of
the agricultural and recreational benefits of the Proposal in
light of the evidence presented to the Panel including, in
particular, the evidence as to the rate of evaporation from
the proposed reservoirs;
d) A direction that the Applicant have an opportunity to con
sider the EIS, including the Benefit/Cost Analysis, and
bring evidence before the Panel in respect thereof; and
e) A direction in general that the Panel not conduct its Public
Review on the assumption that the Proposal will be con
structed and maintained as an international river improve
ment under the International River Improvements Act,
R.S.C. 1985, Chap. I-20 (the "TRIA") and that the Panel is
therefore confined in its mandate to mitigation of the envi
ronmental effects of the Proposal, but instead to conduct
its Public Review with the object of determining whether
the Proposal is compatible with a sound development of
the resources and economy of Canada, and whether it
should be constructed and maintained as an international
river improvement;
and such other direction as the Court deems appropriate;
[Emphasis added.] [Appeal Book (A-1010-91), Vol. I, pages
0001-0003.]
In my view, it is clear that this notice of motion
has its genesis directly in the overbroad terms of par
agraph 2 of the order of February 8, 1991. Nothing
else could possibly justify a party inviting the Court,
or the latter accepting, in the context of the original
section 18 proceedings, to get involved in:
1) The manner in which the panel was to conduct its review;
2) The questions, (other than those specifically mandated by
EARPGO) that it should consider;
3) The material to be filed by the parties; and
4) The procedure to be followed.
It will be recalled that the original proceedings and
the original order went only to the appointment of a
panel. The motion goes far beyond any question of
enforcing that order, and, indeed, has really nothing
to do with it. As Muldoon J. himself had quite prop
erly said in the course of his reasons, in support of
the order of February 8, 1991, "because the Minister
appointed the panel ... , there is now substantially no
/is to support the order". This motion raised an
entirely new dispute and a new set of questions.
The danger of allowing such open-ended proceed
ings as those envisaged in paragraph 2 of the order of
February 8, 1991 is well illustrated by what actually
happened here. When the Tetzlaffs' motion of August
23, 1991, came on, on September 11, 1991, the Min
ister and Saskatchewan Water Corporation made a
preliminary objection based on the filing of the sec
ond panel's report the day before. Muldoon J., after
hearing the argument on the preliminary objection,
took the matter under reserve and on September 30,
1991, gave the order now under appeal. The first par
agraph of that order reads as follows:
1. THIS COURT ORDERS AND ADJUDGES that the document, a copy
of which is exhibited in these proceedings, presented to the
respondent on September 10, 1991, by the aforesaid panel is
not any report at all contemplated by the International River
Improvements Act, R.S.C. 1985, Chap. I-20, the International
River Improvements Regulations 1978 C.R.C., Chap. 982, or
the Environmental Assessment and Review Process Guidelines
Order, SOR/84-467, 11/7/84 Canada Gazette Part II, Vol. 118,
No. 14, and the combined effect of all of them; [Appeal Book
(A-1010-91), Vol. H, page 04571
The overreach is marked. At no point in the pro
ceedings was any formal attack launched on the
panel's report yet the Court purports to declare it to
be "not any report at all". What is the panel, which
was not even before the Court, to do now? What, for
that matter, is the Minister, who was before the
Court, to do? He has complied with the Court's pre
vious order and has referred the matter to a panel in
precisely the terms ordered by the Court. Should he
strike yet a third panel? Or ask the previous panel to
reconsider or expand on its report? And what if they
refuse, asserting quite reasonably that they have done
exactly what they were mandated to do?
In my view, the Court should quite simply have
refused to entertain the motion of August 23, 1991. It
did not raise any issues of compliance with or
enforcement of the order of December 28, 1989.
Those, in my view, would be the only issues which
could properly be raised in the context of the lis with
which the Court had, to that point, been seized. That
is not to say, of course, that there may not be other
serious issues which may come up as to the proce
dure which was followed by the panel, or as to the
relationship between the public review ordered under
EARPGO and the requirements of the International
River Improvements Act and the accompanying regu
lations. Those questions are different from the ques
tions raised on the original section 18 application
brought by the Tetzlaffs. If they are to he litigated it
must be by way of other proceedings.
The parties addressed considerable argument to us
on the merits of these questions raised by the Tet-
zlaffs' notice of motion of August 23, 1991, but since
it is my view that they were not properly before Mul-
doon J. I think I should not comment on them. If
those questions should come before the Court in
appropriate proceedings I would expect that Muldoon
J., having expressed himself on them, would quite
properly wish to disqualify himself.
I would allow the appeal and the cross-appeal, with
costs. I would set aside the order of September 30,
1991 and I would dismiss the application of August
23, 1991 with costs.
HEALD J.A.: I concur.
MACGUIGAN J.A.: I concur.
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.