1.2: Purpose and intention of these rules
3.68: Court options to deal with significant deficiencies
4.1: Responsibilities of parties to manage litigation
4.31: Application to deal with delay
4.33: Dismissal for long delay
7.3: Summary Judgment (Application and decision)

Case Summary

The Defendant, Dale McMullen (“McMullen”), brought an Application for leave regarding the underlying Action of Piikani Nation (Nation) et al v McMullen et al, QB Action No. 1001 10326 (the “Underlying Action”), to strike or dismiss the Underlying Action pursuant to Rules 4.31, 4.33, 7.3, or 3.68. In the fourth alternative, McMullen sought leave to bring an Application to strike the Underlying Action for breach of a covenant by the Piikani Nation (the “Nation”) to cause the Piikani Investment Corporation (“PIC”) to take insurance to indemnify McMullen for losses and injury alleged in the Underlying Action (collectively the “Leave Application”). This was the sixth such leave decision in the Underlying Action (“Leave Decision #6”).

Rooke A.C.J., as the Case Management Justice, referenced and repeated much of the historical setting giving rise to the other five decisions preceding Leave Decision #6. Reviewing the complex procedural history among the parties, Associate Chief Justice Rooke found that the Underlying Action involved complex matters of fact and law that could not be clearly determined without a complete Trial. His Lordship noted further that the Nation’s claims in the Underlying Action were not hopeless under Rule 3.68, as it was not plain and obvious that they could not succeed. Further, Associate Chief Justice Rooke noted that the alleged agreement which McMullen relied upon for the fourth alternative relief was clearly still in issue, as the Nation had denied that the alleged agreement was valid or enforceable. Accordingly, Associate Chief Justice Rooke denied McMullen’s Leave Application pertaining to Summary Dismissal under Rule 7.3, abuse of process under Rule 3.68; and the alleged breach of covenant.

Turning to the relief sought under Rules 4.31 and 4.33, Associate Chief Justice Rooke found that there may be “odds taken” on whether McMullen’s proposed Applications under these Rules would be successful, and what Costs may flow from a decision on those issues. Accordingly, Associate Chief Justice Rooke concluded by allowing the Leave Application to proceed on these two heads of relief. His Lordship cautioned that all aspects of the Underlying Action continue to interfere with Rule 1.2, and reiterated the obligation of the parties to resolve the real issues in dispute by facilitating the quickest means of resolving the dispute at the least expense and delay.

His Lordship concluded by noting that Leave Decision #6 was stayed until further Order of the Court, with the intent that it would continue to be stayed until the issue of McMullen’s other outstanding Application to disqualify Gowlings LLP as the Nation’s counsel was determined.

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