Federal Appeal


Municipal Law

Municipal liability

Practice and procedure

International Boundary Waters Treaty Act not applying to action against municipal and provincial governments relating to flood damage

Plaintiffs alleged that portions of road allowance in defendant municipality were built up to serve as dike that blocked natural flow of water across international border north into Manitoba and caused extensive flooding and damage to plaintiffs’ land on American side of international border. Plaintiffs sought injunctive relief and damages, and claims were based on s. 4(1) of International Boundary Waters Treaty Act (“Act”). Defendants, municipality and Government of Manitoba, were successful in motions to strike out amended statement of claim on basis that Federal Court did not have jurisdiction. Plaintiffs appealed. Appeal dismissed. Court carefully considered reasons given by motions judge in concluding that Parliamentary record supported his interpretation of section 4 of Act. He expressed his view as to meaning and intent of what was discussed by Parliament. At paragraph 61 of his reasons, he opined that Parliamentary record supported interpretation that section 4 of Act “only covers downstream situations where there is interference or diversion of ‘waters in Canada’ that would otherwise flow across the border into the United States (the Article II situation) and not Article IV situation”. Motions judge did not place undue reliance upon those debates or fail to appreciate context in which they occurred.

Pembina (County) Water Resource District v. Manitoba (2017), 2017 CarswellNat 1898, 2017 FCA 92, M. Nadon J.A., Donald J. Rennie J.A., and Yves de Montigny J.A. (F.C.A.); affirmed (2016), 2016 CarswellNat 1967, 2016 FC 618, James Russell J. (F.C.).

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