3.68: Court options to deal with significant deficiencies

Case Summary

The Crown in Right of Alberta (“Alberta”) and the Attorney General of Canada (“Canada”) brought an Application to Appeal the Decision of the Case Management Judge who declined to strike certain portions of a twice-Amended Statement of Claim. Alberta and Canada challenged the Case Management Judge’s application of Rule 3.68 to the facts of the case.

The Action involved allegations of breaches of Treaty obligations by Alberta and Canada. It was alleged that the Treaty imposed obligations on Alberta and Canada to manage certain lands within Alberta to ensure that the members of the Beaver Lake Cree Nation (“BLCN”) were able to exercise their rights to hunt, fish and trap. BLCN alleged that Alberta and Canada failed to discharge their responsibilities and, as such, its members could no longer exercise these rights in the manner anticipated by the Treaty. BLCN alleged that the situation resulted from the cumulative effect of various government authorizations of developments related to oil and gas, forestry, mining and other activities.

The Court held that the interpretation of a pleading is a question of law, subject to correctness, and whether a pleading discloses a cause of action is a question of law, subject to correctness. Otherwise, a Decision to strike a pleading is owed deference and will be reviewed against the standard of reasonableness.

With respect to the issues of whether the Case Management Judge correctly stated the law on striking pleadings, the Court concluded that the Case Management Judge had declined to consider some of the Affidavit evidence tendered by Alberta and Canada. Affidavit evidence must be considered in Applications to strike, with the exception of Applications relating to Rule 3.68 (2)(b) – striking for want of a reasonable claim, in which case, Affidavit evidence cannot be considered. The Case Management Judge may have erred by not considering Affidavit evidence where the Application related to grounds other than as set out in Rule 3.68 (2)(b); however, the Court held that if there was such error, it was of no consequence.

The Court reached the same holding on the issue of whether the Case Management Judge erroneously refused to consider Affidavit evidence in support of the Application to strike.

The Court also considered the issues of whether: the Case Management Judge erred in declining to strike the portions of the current Statement of Claim which made factual allegations relating to the granting of the challenged authorizations; the Case Management Judge should have ordered further particulars in relation to the implicated seven Federal projects; the Case Management Judge erred in declining to strike allegations of a treaty right to hunt, fish and trap on a commercial basis or on a basis other than for food; the Case Management Judge erred in refusing to strike the prayers for injunctive relief against the Crown; the Case Management Judge erred in refusing to strike the claim for damages for prospective actions; the Case Management Judge erred in refusing to strike the claim for ongoing Court supervision over the relationship and conduct of the parties; the Case Management Judge misinterpreted the law on fiduciary duty; and whether the Case Management Judge failed to provide adequate reasons for the Decision.

The Court dismissed the Appeals in their entirety.

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