ALBERTA UNION OF PROVINCIAL EMPLOYEES v HER MAJESTY THE QUEEN (ALBERTA)

The Applicant, Her Majesty the Queen in Right of Alberta, applied under Rule 3.68 to strike the Respondents’ Statement of Claim, which challenged the constitutionality of the Critical Infrastructure Defence Act, SA 2020, c C-32.7 (“CIDA”). The Applicant argued that the Action was an abuse of process because the Respondents lacked standing, the claim was premature and non-justiciable, and the pleadings disclosed no reasonable cause of action.

The Respondents, including the Alberta Union of Provincial Employees and individual union representatives, alleged that the CIDA infringed Charter freedoms of expression, assembly and association, as well as section 7 rights, by creating a chilling effect on lawful demonstrations, leafleting, picketing and collective bargaining activities. Although none of the Respondents had been charged under the legislation, they contended that the breadth of the Act and its application to “essential infrastructure,” including highways and sidewalks, created an immediate impact on protected activities.

Justice Leonard found it appropriate to consider the issue of standing in an Application pursuant to Rule 3.68, noting that if there was no standing to bring a claim, it would follow that the claim would have no reasonable prospect of success. Leonard J. held that the Respondents did not have private interest standing because they had not been charged under the CIDA and could not rely on hypothetical future prosecutions. However, the Court found that they satisfied the test for public interest standing. Applying the flexible approach from Downtown Eastside Sex Workers United Against Violence Society v Canada (Attorney General), 2012 SCC 45, Justice Leonard concluded that the claim raised serious constitutional issues, that the Respondents had a genuine interest in the outcome, and that the Action was a reasonable and effective means of bringing the issues before the Court. The Court emphasized that the absence of an evidentiary record was not fatal where the legislation could be assessed through reasonably foreseeable hypothetical scenarios.

Justice Leonard further held that it was not plain and obvious that the claim would fail. The broad scope of the CIDA, its application to public streets and sidewalks, and the undefined concept of acting “without lawful right” gave rise to arguable constitutional questions concerning freedom of expression, assembly, association, liberty interests, and potential overbreadth. The Court was satisfied some portions of the Respondents’ claim raised a serious issue of the validity of the CIDA.

The Application to Strike was dismissed. The Respondents were awarded costs, with directions that if the parties could not agree on quantum, they were to contact the Court within 30 days to arrange a process for resolving costs.