This Decision arose from an Application by the Defendant to strike the Pleadings in two related Proceedings: a declaratory relief Action, and a Judicial Review Application. Alternatively, the Defendant sought the stay of the declaratory relief Action pending the outcome of the Judicial Review. The Plaintiffs opposed the Application and cross-applied to amend their Pleadings.

Justice Feth considered the threshold to amend Pleadings under Rules 3.62 and 3.65. The proposed amendments sought to clarify the Defendant’s concerns about vagueness and to provide further information. The Defendants argued the amendments were “hopeless.” The Court found that the Pleadings could be amended as the amendments would not cause significant prejudice to the Defendants but would merely clarify existing claims.

The Court then analyzed whether the Statement of Claim or portions thereof may be struck for not disclosing a reasonable cause of action according to Rules 3.68(1) and (2)(b). No evidence may be considered pursuant to Rule 3.68(3). The pleaded facts are presumed to be true except where claims are based on assumptions or speculation or where they are patently ridiculous or incapable of proof. However, the approach must be generous, and the Court must err on the side of permitting a novel but arguable claim.

Justice Feth analyzed the four criteria from Ewert v Canada, 2018 SCC 30, which governs the Court’s discretion to grant declaratory relief. If the criteria are met, the Court assesses the practical utility of a declaration to decide whether to exercise its discretion. Feth J. found that the test for declaratory relief was satisfied. The Pleadings established a live controversy between the Parties and the declaration sought had a practical effect. The Court held there was a reasonable prospect of success. The Application to strike the Amended Statement of Claim was dismissed.

The Court also found the Amended Statement of Claim was not a collateral attack and therefore not an abuse of process that could be struck pursuant to Rule 3.68(2)(d). Justice Feth found that parts of the Pleadings that involved the Federal Crown were not to be struck under Rule 3.68(2)(c) because the allegations provided relevant and necessary historical background despite the Federal Crown not being a named Party.

The Court determined, under Rules 3.15(2) and (3), that the Judicial Review Proceedings were not defective due to the Plaintiffs not serving other First Nations or stakeholders. The Judicial Review focused on the duty to consult owed specifically to the Plaintiffs. No other groups were “directly affected” within the meaning of the Rule to require service. Feth J. allowed the amendment to the Originating Application because the amendments merely clarified the existing pleadings and did not seriously prejudice the Defendants.

The Court noted that striking an Originating Application for non-justiciability on a “plain an obvious standard” is challenging, especially without the Certified Record of Proceedings under Rule 3.19. However, Feth J. found the Amended Originating Application raised arguable justiciable issues and was not plainly without merit. The Application to strike the Amended Originating Application was dismissed.

Lastly, the Court analyzed whether the Action should be stayed pending Judicial Review. The Defendants relied on Rules 3.68(1)(d) and (2)(d) such that the Court may order an Action to be stayed where a Pleading or Commencement Document constitutes an abuse of process. Justice Feth concluded that the issues in the Action and Judicial Review were discrete and engaged different injuries and remedies. Therefore, the Action and Judicial Review were not duplicative or an abuse of process. The Court declined to Stay the Action pending Judicial Review.