Burnell v International Joint Commission,
| Date | 09 July 1976 |
| Court | Federal Court (Canada) |
(Thurlow A.C.J.)
State territory Parts of Rivers International rivers Functions and competence of international commissions on international rivers Capacity of International Commission to sue and be sued Relevance of powers and functions of the Commission International Joint Commission on St Lawrence River Canada-United States International Boundary Waters Treaty, 1909 International Boundary Waters Treaty Act The law of Canada
Summary: The facts:The International Joint Commission was set up by a treaty between Canada and the United States in respect of, inter alia, the St Lawrence River, an international river flowing through both countries. The plaintiff sued the defendant for damages arising from the alleged flooding of his property on an island in the St Lawrence River. The treaty was given effect in Canadian municipal law by appropriate legislation. It was contended on behalf of the Commission that it was not a legal person capable of being sued.
Held:The Commission did not have the capacity to sue or to be sued. The action was therefore dismissed.
The Commission was a body the functions of which were advisory and quasi-judicial in character. Nowhere in the Act or the Treaty was it established as a body corporate nor was a capacity expressly conferred on it to sue or be sued.
The following is the text of the judgment of the Court:
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 para. 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 manipulated 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 120 and the schedule thereto.
and in paras. 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. Lawrence River. The Plaintiff says and the fact is that the Defendant 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 Defendant 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 120 and the schedule thereto.
8. The Plaintiff says that the Defendant has caused a continuing 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 statement of claim, sought and obtained leave to enter a conditional appearance for the purpose of objecting 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 dismiss the action on the ground that the Court does not have jurisdiction to entertain it against the defendant. Rule 419(1)(a) provides that:
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...
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