PIIKANI NATION v RAYMOND JAMES PIIKANI NATION v RAYMOND JAMES LTD, 2026 ABKB 621

The Defendant, Janet Potts (“Potts”), applied to set aside a filed Discontinuance of an Action against her by the Plaintiff, Piikani Nation. In the underlying Action, Piikani Nation alleged that its investment advisors and several councillors, including Potts, conspired to defraud it. Potts never filed a Statement of Defence and was noted in default. In 2018, Piikani Nation amended its Statement of Claim to remove the specific allegations against Potts but never served the Amended Statement of Claim (the “ASOC”) on her.

In 2025, the Court permitted Potts to apply to set aside her Noting in Default and strike the ASOC (the “Potts Application”), and directed the parties to book a Trial for the earliest available dates in 2027. Before a Trial date was scheduled, Piikani Nation filed a Discontinuance of their Action as against Potts (the “Discontinuance”).

Pursuant to Rule 4.36(1), a Plaintiff may discontinue as of right “before a date is set for Trial”. After that point, Rule 4.36(2) requires the written agreement of every party, or the Court’s permission. Reading Rule 4.36 with the trial scheduling Rules, Marion J. confirmed that a trial date is set only when a precise date has been scheduled and the parties notified. A direction to book the earliest available dates was insufficient. The Discontinuance was therefore properly filed pursuant to Rule 4.36(1).

However, the Court retained inherent jurisdiction to set aside a Discontinuance that operates abusively or unfairly, including where it is used to avoid a legitimate procedural step. The central issue was therefore whether the Discontinuance improperly avoided the Potts Application, which the Court had already permitted to proceed.

The Court found that the Potts Application had merit in part. Potts’ deemed admissions arose from the allegations pleaded against her and fell away when those allegations were removed from the ASOC. Further, Rule 3.62(2) required Piikani Nation to serve the ASOC on Potts because, despite being noted in default, she remained a party.

Marion J. also held that it was “plain and obvious” under Rule 3.68(2)(b) that the ASOC disclosed no reasonable claim against Potts. It identified her only as a councillor and pleaded no conduct capable of supporting a claim against her. The Court rejected Piikani Nation’s argument that Potts first had to set aside her Noting in Default before seeking to strike the ASOC, noting that Rule 3.42(b) itself provides that a party cannot be noted in default if they have filed an Application to strike out a claim. Alternatively, if necessary, it would have been “fair and just” pursuant to Rule 9.15(3) to set aside the Noting in Default.

Justice Marion found that allowing the Discontinuance to stand could prejudice Potts’ position on costs because, having never defended the Action, she was arguably not entitled to costs under Rule 4.36(4). However, if the Discontinuance was set aside and the ASOC struck, ordinary costs principles would apply, and Potts had a reasonable prospect of recovering some costs despite being self-represented. The Court held that the Discontinuance unfairly avoided the Potts Application and the potential costs consequences that could follow.

Piikani Nation’s Application to validate service of the original Statement of Claim pursuant to Rule 11.27 was consequently moot. Had it been necessary, the Court would have validated service because Potts had actual notice of the Statement of Claim, including having appended a copy to an Affidavit she swore in 2007.

Accordingly, the Discontinuance was set aside and the ASOC was struck as against Potts.