The Alberta Union of Public Employees (the “AUPE”), along with Guy Smith, Susan Slade, and Karen Weiers, filed a Statement of Claim against the Provincial Government raising constitutional challenges against the Critical Infrastructure Defence Act, SA 2020, c C-32.7 (the “CIDA”).

The Defendant applied to strike the Statement of Claim pursuant to Rule 3.68 as an abuse of process, alleging that the pleading disclosed no reasonable claim, and challenging the Plaintiffs’ standing. Justice Leonard applied the “stringent” test for striking a claim pursuant to Rule 3.68(2), noting that a claim should only be struck where it is “plain and obvious” that the claim cannot succeed or is “bound to fail”. Her Ladyship noted that the power to strike must be used sparingly.

Justice Leonard noted that the Defendant alleged that the Statement of Claim was an abuse of process for lack of standing, but Her Ladyship noted that there was no authority for that proposition. Her Ladyship went on to determine whether the Plaintiffs had standing, as she found that would be determinative of whether there was a reasonable claim pursuant to the Rule 3.68 Application to strike.

The Plaintiffs asserted private and public interest standing. Justice Leonard found that the Plaintiffs had public interest standing only. To establish private interest standing, the Plaintiffs had to show a “direct relationship between the person and the state” where “the state engages a person in a court process.” On that basis, Justice Leonard found that AUPE lacked private interest standing because it was “not a defendant in an action commenced pursuant to the CIDA.” Similarly, the individual Plaintiffs were found not to have private interest standing.

In determining whether the Plaintiffs had public interest standing, Justice Leonard weighed and considered cumulatively (a) whether the case raised a serious justiciable issue; (b) whether the Plaintiffs had a genuine interest in the outcome; and (c) whether the proposed suit is a reasonable and effective means to bring the case to Court. Justice Leonard found that the constitutional issues raised were serious and far from frivolous, that the law was reasonably foreseeable in application and therefore justiciable, that the Plaintiffs had a genuine interest in the issues, and that the claim was a reasonable and effective means for the Court to assess the constitutional issues.

Since the Plaintiffs had public interest standing to bring the Statement of Claim, Justice Leonard found that the pleadings disclosed a reasonable claim and should not be struck. The Defendant’s application to strike the Statement of Claim pursuant to Rule 3.68 was dismissed, with Costs awarded to the Plaintiffs.