3.19: Sending in certified record of proceedings
3.22: Evidence on judicial review
3.68: Court options to deal with significant deficiencies

Case Summary

The Applicant sought Judicial Review of a decision of the Aboriginal Consultation Office (“ACO”), which had found that a project proponent did not have to consult with any Aboriginal organization regarding a certain oilsands mining project (the “Decision”).

The Respondents, Her Majesty the Queen in Right of Alberta and the ACO (the “Alberta Respondents”) applied to strike the Applicant’s Originating Application as an abuse of process.

The Applicant applied (i) to admit evidence that was not before the ACO when it made the Decision; (ii) for an Order directing the Alberta Respondents to file an unredacted copy of the ACO’s records so that the Court could review the validity of certain redactions; and (iii) for an Order to amend its Originating Application to add a “basket clause” into its prayer for relief.

The Court first considered whether the Applicant’s Originating Application should be struck as an abuse of process. Whitling J. noted that Rule 3.68 allows the Court to strike out all or part of a claim if it constitutes an abuse of process. The test for striking pleadings for an abuse of process is “whether it is plain and obvious the action will fail” (Lameman v Alberta, 2013 ABCA 148). The Court found that the Originating Application was a collateral attack on a previous decision of the Ministry of Indigenous Relations that the Applicant did not make a credible assertion of Métis Aboriginal rights. As a result, the Court struck the Applicant’s Originating Application.

In the event that striking the Originating Application was an error, Whitling J. considered the Applicant’s Application to admit fresh evidence. Whitling J. noted that Rule 3.22 allows the Court to permit additional evidence on a Judicial Review, though the general rule is that evidence that was not before the original decision-maker is inadmissible on Judicial Review (Gowrishankar v JK, 2019 ABCA 316). The Court determined that the Applicant’s proposed evidence did not fall within an exception to the general rule and denied the Application to admit new evidence.

The Court then considered the Applicant’s request to order the Alberta Respondents to file an unredacted copy of the ACO’s records. Whitling J. noted that Rule 3.19(3) allows the Court to make such an Order if the Court is not satisfied with the explanation for not sending all or part of the record of proceedings. The Alberta Respondents explained that the redactions concerned privileged information and information submitted by another community respecting a potential duty to consult that community. The Court was satisfied with the Alberta Respondents’ explanation for the redactions and denied the Applicant’s request.

Finally, the Court denied the Applicant’s request for an Order to amend its Originating Application as it had already been necessary to strike the Originating Application on the basis that it sought unavailable relief.

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