CROY v ALBERTA

The Defendant, Alberta, applied to strike or, alternatively, summarily dismiss the Plaintiffs’ claims on the basis that they were bound to fail. In the Action, the Plaintiffs sought damages for Alberta’s destruction of an alleged ‘Sundown Cabin,’ to which the Plaintiffs claimed Treaty and Indigenous rights.

The Court considered Rule 3.68(1), finding that Courts must strike a balance to avoid impeding legal development.  Justice McLeod relied on the cases of Hryniak v Mauldin, 2014 SCC 7 and Weir-Jones Technical Services Incorporated v Purolator Courier Ltd, 2019 ABCA 49 in applying Rule 7.3(1)(b).

McLeod J. first considered Alberta’s argument that the Plaintiffs did not have standing to make a claim because they attempted to advance Treaty Rights as individuals rather than as a collective. The Court held that the jurisprudence had not reached the conclusion that claims founded in communal rights could not be pursued by individuals, and refused to dismiss the claims on that basis.

Justice McLeod then considered Alberta’s argument that the Application was a collateral attack or abuse of process because the Plaintiffs failed to challenge the Orders which required the Sundown Cabin to be removed. The Court did not find this argument persuasive and refused to dismiss the Action on that basis.

Alberta also advanced an argument that it had immunity pursuant to Section 59.22 of the Public Lands Act, RSA 2000, c P-40. The Court held that there was a lack of clarity surrounding the law on that issue and refused to dismiss the Plaintiffs’ claim on that basis.

The Court also considered Alberta’s arguments that the cabin in question was not a Sundown Cabin and determined that there were triable issues to be considered. McLeod J. ultimately dismissed Alberta’s Application.