Topolniski J

3.15: Originating application for judicial review
3.65: Permission of Court to amendment before or after close of pleadings
9.1: Form of judgments and orders
10.31: Court-ordered costs award
10.33: Court considerations in making costs award

Case Summary

The Applicant, McCargar sought leave to amend his Amended Originating Application. Following the filing of an Amended Originating Application, a 3 day special chambers hearing was scheduled from October 18, 2016 to October 21, 2016. On the morning of the hearing, the Applicant served the Respondents with a form of his Amended Amended Originating Application and also presented the form to the Court. As a result, the hearing was adjourned and rescheduled for November 10, 2017. On November 9, 2017, the Applicant wrote to the Court and proposed additional changes to the Amended Amended Originating Application, which would have reframed the Application to one of Judicial Review.

Topolniski considered Rule 3.15 and stated that, except for Judicial Review for habeas corpus Applications, a Notice of Application for Judicial Review “must be filed and served within six months after the date of the impugned decision”. In addition, Affidavits in support of such Applications “must be filed and served one month or more before the scheduled hearing”.

Topolniski J. noted that amendments of pleadings pursuant to Rule 3.65 are subject to limited exceptions, including a determination of whether the proposed amendments were hopeless. A pleading is hopeless only when it is “clear and obvious that there is no triable issue”. In determining whether the Applicant’s Originating Application was hopeless, Topolniski J. reviewed the proposed amendments, and held that, since the Applicant had reframed the Amended Amended Originating Application to one of Judicial Review, whether the Applicant was entitled to Judicial Review was vital in determining whether the Application was hopeless. Topolniski J. held that the Métis Nation of Alberta Association was not a body subject to Judicial Review, and as such, the Applicant’s Application was hopeless.

With respect to thrown away Costs for the adjourned Application, Justice Topolniski stated that the award of Costs is discretionary, and is generally governed by the considerations in Rules 10.31 and 10.33. While Topolniski J. found that the Applicant’s conduct constituted “litigation by ambush”, Her Ladyship was not prepared to award solicitor-client Costs to the Respondents based on the Applicant’s conduct. Instead, Topolniski J. awarded enhanced costs of 1.5 times Schedule C, Column 1 for Special Applications with written submissions.

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