Kitimat (District) v. Alcan Inc., (2006) 234 B.C.A.C. 65 (CA)

• Judge: Saunders, Levine and Smith, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: September 05, 2006
• Jurisdiction: British Columbia
• Citations: (2006), 234 B.C.A.C. 65 (CA);2006 BCCA 562

Kitimat v. Alcan Inc. (2006), 234 B.C.A.C. 65 (CA);

    387 W.A.C. 65

MLB headnote and full text

Temp. Cite: [2006] B.C.A.C. TBEd. DE.033

District of Kitimat and Richard W. Wozney (respondents/petitioners) v. Minister of Energy and Mines and Her Majesty the Queen in Right of the Province of British Columbia as represented by the Attorney General of British Columbia (respondent/respondent) and Alcan Inc. (appellant/applicant)

(CA034165; 2006 BCCA 562)

Indexed As: Kitimat (District) v. Alcan Inc.

British Columbia Court of Appeal

Saunders, Levine and Smith, JJ.A.

December 12, 2006.

Summary:

The District of Kitimat and its mayor brought a petition for judicial review, seeking various orders that instruments regulating Alcan Inc. and its hydroelectric generation at Kemano, British Columbia, were ultra vires, or alternatively limiting the purpose for which the power generated by Alcan could be used. The petitioners did not join Alcan as a party to the petition. Alcan applied to be named as a respondent. The application was dismissed. Alcan appealed.

The British Columbia Court of Appeal allowed the appeal, holding that Alcan should be joined as a respondent to the litigation.

Editor's Note: For a previous decision involving these parties see 223 B.C.A.C. 27; 369 W.A.C. 27.

Administrative Law - Topic 3347

Judicial review - General - Practice - Parties (incl. standing) - The District of Kitimat and its mayor brought a petition for judicial review, seeking various orders that instruments regulating Alcan Inc. and its hydroelectric generation at Kemano, British Columbia, were ultra vires, or alternatively limiting the purpose for which the power generated by Alcan could be used - The petitioners did not join Alcan as a party to the petition - Alcan sought to be named as a respondent - The British Columbia Court of Appeal held that Alcan should be joined as a respondent - Alcan was a necessary party for a full determination of the issues, including at the appellate level, and it therefore "ought to have been joined as a party" under rule 15(5)(a)(ii) - Alcan was also entitled to be joined as a respondent under rule 15(5)(a)(iii) - There was an issue between Alcan and Kitimat related both to the relief claimed in the proceeding and the subject matter of the proceeding - Since Alcan's interests could be directly affected by the order obtained by the petitioners, it was just that Alcan should be in a position to appeal such an order - It was inadequate to for it to be an intervener - See paragraphs 24 to 49.

Administrative Law - Topic 3347

Judicial review - General - Practice - Parties (incl. standing) - The District of Kitimat and its mayor brought a petition for judicial review, seeking various orders that instruments regulating Alcan Inc. and its hydroelectric generation at Kemano, British Columbia, were ultra vires, or alternatively limiting the purpose for which the power generated by Alcan could be used - The petitioners did not join Alcan as a party to the petition - Alcan sought to be named as a respondent - Alcan argued that the petitioners' service on it under rule 10 had the effect of making it a respondent once it filed a response in Form 124 - The British Columbia Court of Appeal rejected the argument - The court stated that it was inconsistent with the premise that the scope of the litigation was generally within the control of the petitioners to leave the designation of respondent within the sole control of any of the broad class of persons who may have been served under rule 10(4) - Nor did rule 51A give a person status as a full party to a proceeding in the event that the person who was not yet a respondent filed a Form 124 - See paragraphs 19 to 23.

Practice - Topic 351

Parties - Joinder of parties - General - Person whose participation is necessary for full and effectual adjudication - [See first Administrative Law - Topic 3347 ].

Practice - Topic 725

Parties - Adding or substituting parties - Respondents - Interested persons defined - [See first Administrative Law - Topic 3347 ].

Cases Noticed:

Wastech Services Ltd. v. Costello, [1996] B.C.T.C. Uned. 279; 20 B.C.L.R.(3d) 161 (S.C.), refd to. [para. 8].

Lawrence Construction Ltd. v. Fong et al., [2001] B.C.T.C. 813; 18 C.P.C.(5th) 377 (S.C.), refd to. [para. 29].

Morishita v. Richmond (Township) (1990), 44 B.C.L.R.(2d) 390 (C.A.), refd to. [para. 30].

Canadian Labour Congress v. Bhindi (1985), 61 B.C.L.R. 85 (C.A.), refd to. [para. 31].

Paramount Drilling and Blasting Ltd. v. North Pacific Roadbuilders Ltd. et al. (2005), 214 B.C.A.C. 212; 353 W.A.C. 212; 43 B.C.L.R.(4th) 101; 2005 BCCA 378, refd to. [para. 33].

Robson Bulldozing v. Royal Bank of Canada (1985), 62 B.C.L.R. 267 (S.C.), refd to. [para. 34].

Gurtner v. Circuit et al., [1968] 2 Q.B. 587 (C.A.), refd to. [para. 37].

Canada (Attorney General) v. Aluminum Co. of Canada Ltd. (1987), 10 B.C.L.R.(2d) 371 (C.A.), refd to. [para. 45].

Police Complaint Commissioner (B.C.) v. Jones, [2003] B.C.T.C. 279; 12 B.C.L.R.(4th) 89 (S.C.), refd to. [para. 47].

Statutes Noticed:

Rules of Court (B.C.), Supreme Court Rules, rule 10(4), rule 10(5) [para. 10]; rule 15(5)(a)(ii), rule 15(5)(a)(iii) [para. 12]; rule 51A [para. 9].

Authors and Works Noticed:

Blake, Sara, Administrative Law in Canada (3rd Ed. 2001), p. 168 [para. 47].

Calvert, Frederic, A Treatise Upon the Law Respecting Parties to Suits in Equity (2nd Ed. 1847), generally [para. 24].

Muldoon, Paul R., Law of Intervention; Status and Practice (1989), p. 3 [para. 14, footnote 1].

Smith, John Sidney, The Practice of the Court of Chancery (6th Ed. 1857), generally [para. 24].

Story, Joseph, Commentaries on Equity Pleadings (8th Ed. 1870), ss. 76c, 77 [para. 24].

Counsel:

D. Webster, Q.C., and D.R. Bennett, for the appellant;

J.J.L. Hunter, Q.C., and M.S. Oulton, for the respondent, District of Kitimat.

This appeal was heard on September 5, 2006, at Vancouver, British Columbia, before Saunders, Levine and Smith, JJ.A., of the British Columbia Court of Appeal. The following judgment of the Court of Appeal was delivered by Saunders, J.A., on December 12, 2006.