3.68: Court options to deal with significant deficiencies

Case Summary

The Fort McKay Metis Community Association (“FMMCA”) and the Metis Nation of Alberta Association Local Council #63 Fort McKay (“Local Council”) brought an Originating Application for a Declaration from the Court that they were the authorized legal entity to represent their members during development consultation in the Fort McKay area. The Metis Nation of Alberta Association (“MNAA”) brought an Application to strike the Originating Application pursuant to Rule 3.68.

The Originating Application sought a Declaration for the right to represent the Metis community members during any consultation, not just a specific one. As such, the Court found the breadth of the Application to be contrary to the framework from Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73. The duty to consult is fact specific for each circumstance and its form cannot be predetermined. In the alternative, Justice Gates considered whether this case was appropriate for declaratory relief and applied the test from Ewert v Canada, 2018 SCC 30, being that: (1) the Court must have jurisdiction to hear the issue; (2) the dispute is real and not theoretical; (3) the party raising the issue has a genuine interest in its resolution; (4) the Respondent has an interest in opposing the remedy sought, and (5) there is a practical utility to the declaration to settle a live controversy.

As the Originating Application was too broad and not specific to a certain duty to consult, Justice Gates found the Originating Application was theoretical or hypothetical and did not settle a live controversy at the time of the hearing. Further, the Crown was the party interested in opposing the remedy sought but was not a named party. Justice Gates noted that the test under Rule 3.68 is whether the claim has no reasonable prospect of success, that this test is a stringent one, and an Applicant’s claim should be given a broad interpretation. Justice Gates found that the Originating Application disclosed no reasonable claim and should be struck under Rule 3.68(2)(b).

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