ORR v ALOOK, 2013 ABQB 86


3.68: Court options to deal with significant deficiencies
7.3: Summary Judgment (Application and decision)

Case Summary

The Applicants sought summary dismissal. The Plaintiff, Andrew Orr, and the Defendant, James Alook, had been rivals for leadership of the Defendant, Peerless Trout First Nation, since the mid-nineteen nineties. There were three parts to the Action: defamation, conflict of interest and breach of contract.

The defamation allegation related to the posting of a “draft” Statement of Claim at the band office. The Court dismissed the defamation allegation holding that there was no merit to the Claim. The Court also held that the alleged defamation was not sufficiently particularized.

The Applicants alleged that when James Alook was the Chief of Peerless Trout First Nation he used a non-profit corporation for his personal benefit, instead of the benefit of Peerless Trout First Nation. Relating to alleged conflicts of interest, Master Schlosser held that:

In a summary dismissal application, the Applicant bears the legal burden throughout. Once the Applicant has discharged its evidentiary burden of, in this case, showing that there is no merit to a portion of the claim, the evidentiary burden then falls to the Respondent to show that there is at least an arguable case. The law in this area is well settled. In this case, the Respondent tendered no evidence. There is nothing to displace the Applicant’s position that the conflict allegations and the claims in paras. 18-21 are without merit. Accordingly, this portion of the claim is dismissed.

The last issue related to an alleged breach of contract relating to the negotiation of land claims. Peerless Trout First Nation submitted that it could not be held liable because the alleged breaches occurred before its formation as a band under the Indian Act, RSC 1985, c I-5. The predecessor groups were community associations registered under the Societies Act, RSA 2000, c s-14. Peerless Trout First Nation argued that it could not be sued for any contracts formed prior to it becoming a band. The Court undertook an extensive analysis. The Court held that the acquisition of band status is very different than the formation of a corporation. The Court did not strike this portion of the Pleading, holding that it was not plain and obvious that the corporate analogy argument would doom the Respondent’s claim.

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