KAINAIWA/BLOOD TRIBE v ALBERTA (MINISTER OF ENERGY), 2020 ABCA 387
14.36: Case management officers
This was an Application to rescind the direction of the Court of Appeal’s Case Management Officer adjourning an underlying Appeal. The Respondent on the Application, and the Appellant on the Appeal (the “Blood Tribe”) had sought to obtain mineral rights over lands that had recently been incorporated into their territory. The Applicant on the Application, and the Respondent on Appeal (“Alberta”) had in response informed the Blood Tribe that it would not transfer the rights, and the Blood Tribe then commenced a Judicial Review of that decision. The reviewing Justice found the decision of Alberta to be unreasonable, but also held that the remedy sought by the Blood Tribe was unavailable. The Blood Tribe then appealed the Decision of the reviewing Justice.
Subsequently, Alberta released a reconsideration decision once again denying the transfer of the rights. The Appeal was set to be heard two days after the reconsideration decision, and the parties adjourned the Appeal sine die in order to consider whether the best procedural path forward was continuing with the Appeal or commencing a Judicial Review of the reconsideration decision. The Blood Tribe filed an Application for Judicial Review of the reconsideration decision. Shortly thereafter, Alberta asked the Court of Appeal’s Case Management Officer to set the original Appeal down for a hearing, and the Blood Tribe opposed this and took the position that the Appeal should remain adjourned sine die pending the outcome, and possible Appeal, of the second Judicial Review. The Case Management Officer directed that the Appeal remain adjourned sine die which led to Alberta making its Application to rescind the direction of the Court of Appeal’s Case Management Officer.
Antonio J.A. noted that Rule 14.36(3) provides that anyone affected by a direction of a Case Management Officer may apply to a single Appeal Judge to have that direction rescinded, confirmed, amended or enforced. Antonio J.A. further noted that Case Management Officers are not members of the judiciary, and Rule 14.36(3) does not use the words “appeal” or “review”, and therefore concluded that Applications under the Rule should not be conceived of as “appeals.” Antonio J.A. determined that a Justice hearing an Application under Rule 14.36(3) could deliberate the issue considered by the Case Management Officer directly, and could make their own decision. Her Ladyship was satisfied that the Appeal should remain adjourned sine die, and dismissed the Application.View CanLII Details