WAQUAN v CANADA (ATTORNEY GENERAL)

The Defendants applied to strike the Plaintiffs’ Action for delay under Rules 4.33 and 4.31. The Court granted the Application, in part, dismissing the claim of the Mikisew Cree First Nation (“MCFN”) but allowing the Individual Plaintiffs’ claims to proceed.

The Court considered the operation of Rule 4.33, which mandates dismissal where three or more years have passed without a significant advance in an action. The Court emphasized that a “significant advance” requires a functional analysis, focusing on whether the step meaningfully moved the action toward resolution. Steps such as correspondence, attempts to schedule case management, or unresolved applications do not qualify unless they genuinely advance the litigation.

Applying this approach, the Court held that the last significant advance occurred on January 8, 2020, when the Plaintiffs served Replies to Demands for Particulars. Subsequent steps, including  filing Applications, responding Briefs, and attempts to schedule Case Management, did not materially advance the Action. Accordingly, more than three years had passed without a significant advance, engaging Rule 4.33.

The Court rejected arguments that time should be excluded due to a “standstill agreement” or “institutional delay.” A valid standstill agreement under Rule 4.33(5) must clearly and explicitly suspend time for the purposes of the Rule, which was not established. Further, the Rules do not recognize “institutional delay” as a basis to suspend the limitation period.

However, the Court found that the exception in Rule 4.33(2)(b) applied. The Defendants’ on-going participation after the expiry of the three-year period, particularly their efforts to schedule and advance their own Application, constituted participation in a “proceeding” sufficient to reasonably lead the Plaintiffs to believe the delay had been waived.

The Court also found, in the alternative, that the Action was effectively stayed by a prior Case Management Order under Rule 4.33(2)(a), which relieved the Defendants from filing Statements of Defence pending further Order. This prevented the Action from progressing in the usual manner.

The Court then considered Rule 4.31, which permits dismissal where delay has caused significant prejudice. It found that the delay was inordinate and inexcusable, noting that the Action was over ten years old, pleadings had not closed, and key issues remained unresolved. The delay was attributed primarily to the Plaintiffs, including the failure of MCFN to clarify its position and prolonged inactivity across multiple stages of the litigation.

The Court further found that the delay caused significant prejudice. The passage of time impaired witness memory, and several key witnesses had died or became unavailable. Given the nature of the allegations, fraud, misrepresentation, and breaches of duty, this prejudice was particularly serious. The Plaintiffs failed to rebut the presumption of prejudice or demonstrate that documentary evidence would adequately mitigate these concerns.

Despite these findings, the Court exercised its discretion not to dismiss the Individual Plaintiffs’ claims due to the unique context of Indigenous land claims and the importance of resolving such matters on their merits. However, no such compelling reason applied to MCFN, which had delayed the Action and failed to clarify its position. As a result, MCFN’s claim was dismissed, while the Individual Plaintiffs’ claims were permitted to proceed under continued Case Management.