This was an Appeal by Alberta from a Chambers Judge’s Decision dismissing its Application under Rule 3.68 to strike, or alternatively stay, the Statement of Claim (the “Claim”) filed by the Mikisew Cree First Nation and Athabasca Chipewyan First Nation (collectively, the “Nations”). In the Claim, the Nations alleged that Alberta’s framework for consulting Indigenous communities on oil sands development was unconstitutional. Alberta argued that the Claim disclosed no reasonable cause of action, sought improper declaratory relief amounting to a collateral attack on prior regulatory approvals, and constituted an abuse of process due to a related Judicial Review.

The Court of Appeal confirmed that whether a pleading discloses no reasonable claim, or constitutes an abuse of process, are both questions of law reviewable on a correctness standard, while the ultimate determination of the appropriate remedy is discretionary and should be reviewed with deference. Ultimately, the Court held that the Chambers Judge made no reviewable error.

In applying Rule 3.68, the Court emphasized that a pleading should only be struck if it is plain and obvious that it will fail, assuming the facts as pleaded are true. The Court noted that the Chambers Judge correctly applied a generous approach, recognizing that novel or developing claims should be allowed to proceed unless they are clearly untenable. Further, the Court endorsed the principle that striking a pleading for abuse of process is an exceptional remedy, particularly in the Aboriginal law context, where the Supreme Court of Canada has cautioned against premature dismissal. Accordingly, the Court of Appeal found that it was not plain and obvious that the declaratory relief sought by the Nations was unavailable, nor that the Claim amounted to an abuse of process.

Regarding Alberta’s concerns about duplicative proceedings and the potential for inconsistent outcomes between the Claim and the Judicial Review, the Court of Appeal found that this was insufficient to justify a stay under Rule 3.68. The Court further noted that such concerns could be addressed under Rule 3.72, which allows the Court of King’s Bench to consolidate, coordinate, or stay actions to ensure efficient use of judicial resources.

In the result, the Court dismissed the Appeal, confirming that Alberta may still seek relief under Rule 3.72 in the Court of King’s Bench if appropriate.