This was an Application by Mitch Sylvestre (the “Referendum Proponent”) to strike a statutory Reference brought by the Chief Electoral Officer (the “CEO”) under the Citizen Initiative Act, SA 2021, c C-13.2 (the “CIA”). The Court was asked to decide how the Rules apply in the Reference context and whether the CEO’s Reference should be removed at the threshold stage.

The Court held that Rule 3.68 governs striking but must be adapted for a statutory Reference. The standard remains a high one. The moving party must show it is plain and obvious that the proceeding will fail or that it is frivolous, improper, or an abuse of process. Because a Reference is not ordinary, pleadings-based litigation, the analysis targeted the question referred rather than pleaded facts. The proper inquiries are whether the question stated is a legal question suitable for judicial determination, whether the answer is so clear that no hearing on the merits is required, and whether the Reference or the way it has been framed is an abuse of process.

Applying that framework, the Court found the CEO complied with the CIA by stating a legal question for the Court rather than pleading facts. The central question, of whether the constitutional referendum proposal contravened sections 1 to 35.1 of the Constitution Act, 1982, was a legal question within judicial competence. It was not plain and obvious that the proposal was constitutional. On the record, a full hearing was required. The prematurity and abuse arguments failed because the timing of a Reference was set by the statute and the Reference occurred at the Application stage by legislative design, not as a matter of executive preference.

Justice Feasby also addressed intervention under Rule 2.10. Although intervenors are uncommon in the Court of King’s Bench, the Rule permits the Court to grant status and set terms for participation. Applying the Court of Appeal criteria, Feasby J. focused on whether the proposed intervenor had a direct and significant interest or could offer a useful perspective or expertise that would assist the Court, while ensuring the proceeding remained efficient and would not expand unduly. The Court noted that evidence is not typically received on a Reference, but it may be permitted where it would assist, for example from First Nations on asserted Aboriginal and treaty rights.

The Court noted that the strike Application proceeded in a largely non adversarial posture. In such circumstances the Applicant bears a heightened burden to address potential contrary arguments because the Reference raised issues of broad public importance. On the adapted Rule 3.68 analysis, and given the statutory scheme that empowered and timed the Reference, the motion to strike was dismissed and the matter was permitted to proceed.