The Claim against the Attorney General of Canada and Her Majesty the Queen in Right of Alberta related to the surrender of reserve lands to Canada and the subsequent sale thereof. In the context of a Summary Judgment Application by the Appellants (Defendants), the Respondents (Plaintiffs) filed 15 constitutional questions. The Appellants applied to strike the constitutional questions. The Justice in Chambers struck 14 of the 15 questions. The Appellants submitted that the Justice in Chambers ought to have struck the remaining question.

The Appellants submitted that the Amended Statement of Claim did not support the constitutional question. The Court held that although the Pleading was not very clear, there was enough pleaded to support the raising of the constitutional question.

Additionally, the Appellants submitted that the raising of the constitutional question was an abuse of process. The Appellants argued that to allow the constitutional question effectively amended the Pleading, and there was no opportunity to oppose this. The Court held that there was no amendment. There was simply a notice that based on the Pleadings and evidence the Court would be asked to consider a constitutional question. The Appellants also submitted that the raising of the constitutional question six years after commencement of the Action was an abuse of process that prejudiced them. The Court held that the Justice in Chambers addressed the issue of prejudice in a not unreasonable manner, and thus was entitled to appellate deference.

The Appeal was dismissed.