Costigan, slatter AND veldhuis jja

3.68: Court options to deal with significant deficiencies
7.3: Summary Judgment (Application and decision)
13.18: Types of affidavit

Case Summary

The Plaintiff Sturgeon Lake Indian Band (“Band”) commenced an Action against the Defendant Attorney General of Alberta and Her Majesty the Queen in Right of Alberta (the “Crown”) in 1987 which the parties settled through a Treaty Land Entitlement Settlement Agreement. A subsequent Statement of Claim was filed by the Plaintiff Band and individual Band members (“Appellants”) in 1997 which the Crown argued contained claims which had been previously settled. The Crown successfully applied to strike or summarily dismiss significant portions of the Statement of Claim. The Appellants appealed on the basis that the Case Management Judge had summarily dismissed the Action before considering the Appellant’s Application to amend their Pleadings.

The Court of Appeal reviewed and the test for Summary Judgment and for striking Pleadings, and held that the Case Management Judge, who had been managing the Action for 15 years did not make any reviewable error in deciding to summarily dismiss or strike out portions of the Statement of Claim prior to determining any amendments. No part of the struck or dismissed portions could have been saved by the proposed amendments.

The Appellants also argued that the Crown had relied on inadmissible hearsay evidence in its Affidavits, and that the claims should not have been summarily dismissed in the face of conflicting Affidavits. The Court of Appeal considered Rule 13.18(3), which provides that if an affidavit is used in support of an application that may dispose of all or part of a claim, the affidavit must be sworn on the basis of the personal knowledge of the person swearing the affidavit. The Court of Appeal compared the former and current Rules related to hearsay Affidavits, and noted that Rule 13.18(3) provided that hearsay Affidavits cannot be used to obtain final relief. The Court further stated that case law has long recognised that some flexibility is required in interpreting the Rule on the use of hearsay evidence in affidavits. To apply the Rule strictly would preclude Summary Judgment by big organizations. The Court of Appeal also noted that historical aboriginal claims pose a particular “problems of proof” as many of the people who were present during treaty negotiations are no longer alive. Therefore the parties to the litigation have to rely on documents found in their business records that are then attached as exhibits to their Affidavits.

The Court of Appeal observed that there were some authorities which warn of the dangers of summary judgment in the face of conflicting Affidavit evidence. However, the Court of Appeal stated that the modern authorities mark a cultural shift away from Trial as the “default method of proving disputed facts”. The Rules permit a Judge to make findings of fact in a Summary Judgment Application, and conflicting evidence on the record does not mean that the Court cannot make a “fair and just adjudication”.

The Court of Appeal determined that the Appellants had not shown that the Case Management Judge had made a reviewable error, and the Appeal was dismissed.

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