PIIKANI NATION v MCMULLEN

This decision arose from a long-running, case-managed litigation involving Piikani Nation (the “Nation”) and several Defendants, including Dale McMullen (the “1001 Action”), in which the Nation alleged breaches of legal and equitable duties regarding the Piikani Investment Corporation and Piikani Energy Corporation. Although the 1001 Action had been active for 15 years, it had not progressed beyond the early procedural stages due to extensive interlocutory applications and appeals. In 2025, the Nation filed a partial discontinuance against the remaining Defendants after earlier discontinuing against McMullen. The Defendants opposed the discontinuance and sought permission to apply to strike the 1001 Action for delay.

McMullen had previously been found in contempt of Court and was subject to “Restriction Decisions” that prevented him from filing new applications until he complied with Court Orders and paid outstanding costs. He also was no longer a party to the 1001 Action after the earlier discontinuance against him. The Court held that, for those reasons, McMullen could not pursue the proposed Application to set aside the later discontinuance.

Pursuant to Rule 4.36(1), a plaintiff may discontinue an action as of right before a trial date is set. The remaining Defendants argued that prior Case Management Orders directing the various Actions to be heard together effectively required leave before discontinuance. However, the Court rejected that submission and ruled that scheduling directions did not amount to the formal setting of a trial date. The Court also found no evidence that the Nation was “escaping by the side door” to avoid a decision on the merits. Since the claims would likely be statute-barred if the Nation tried to recommence them, there was no risk of the Nation abusively relitigating the same issues. The discontinuance was therefore permitted.

The remaining Defendants also sought to strike the 1001 Action for long delay pursuant to Rule 4.33. The Court denied this request as moot since the discontinuance had already achieved the substantive result the Defendants sought (termination of the claim), and there was no remaining Action to strike. The Court further dismissed technical service objections relying on Rule 11.27, which permits validation of irregular service where the document likely came to the recipient’s attention. Given that the Defendants were actively challenging the discontinuance, any service irregularity was immaterial and capable of validation.

Pursuant to Rule 4.36(4), the remaining Defendants were automatically entitled to a costs award for having defended against the now-discontinued claim. The Court ruled that the end of the 1001 Action did not prevent the Defendants from pursuing their separate indemnity Actions.

In the result, the Court denied permission to file both the proposed Application to set aside the discontinuance and the proposed delay Application. It directed a further Case Management Conference to determine the final costs of the 1001 Action and to set a path forward for the remaining Indemnity Actions. The Court also noted that materials produced in the discontinued Action may be used in related proceedings, subject to Rule 5.33 or relief from the implied undertaking rule where appropriate.