3.68: Court options to deal with significant deficiencies

Case Summary

In ruling that the Plaintiffs’ Statement of Claim (the “Claim”) should be struck, the Court reviewed Rule 3.68. The Court found that the Plaintiffs did not have legal capacity to sue for the allegations set out in the Statement of Claim and that therefore the Court lacked jurisdiction on the matter.

The Court found that the first Plaintiff, the Papaschase First Nation (“PFN”), was not a juridical person and thus could not sue in its own name. Although Indian Bands as defined in the Indian Act, RSC 1985, c i-5 (the “Act”) can be juridical persons, the PFN was not registered under the Act. The Court also found that the second Plaintiff, Chief Calvin Bruneau, could not sue for alleged wrongs such as defamation without amending the Claim to sue in his personal capacity. The Plaintiffs were unwilling in oral argument to amend the named Plaintiffs to Calvin Bruneau and the Papaschase Cree Nation Society, which both would have standing.

While, given the Court’s conclusion that the Plaintiffs lacked capacity to sue, it was not necessary for the Court to consider whether the Claim should also be struck on the basis that it disclosed no reasonable cause of action, was frivolous or constituted an abuse of process, Bercov J. conducted the analysis in the event the Court was wrong. The Court first reviewed the test for determining whether an Action should be struck for disclosing no reasonable claim (or cause of action), emphasizing that a claim should only be struck if it is “plain and obvious, assuming the facts pleaded to be true, that the pleading discloses no reasonable cause of action” (R v Imperial Tobacco Canada Ltd., 2011 SCC 42). The Court found that, assuming the allegations in the Claim were true and considering the Claim in a broad and liberal manner, the Action as currently pled had no reasonable prospect of success.

The Court concluded that this was not a case where it was more efficient to amend the pleadings as opposed to strike them entirely. The Court advised that for the Action to proceed, parties with legal capacity to sue must be substituted for the current Plaintiffs. Further, some of the alleged wrongdoings, such as breaches of privacy, must be brought by individuals whose privacy rights were violated.

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