Rowbotham, Greckol and Strekaf JJA

3.68: Court options to deal with significant deficiencies

Case Summary

The Plaintiffs Appealed the Decision of a Chambers Judge to strike the Plaintiff’s Action on the basis that the Plaintiffs lacked standing. The Plaintiffs had commenced an Action on their own behalf and on behalf of the Mikisew Cree First Nation (“MCFN”) which contained many of the same allegations which had been at issue in an Action brought in 1996 by the MCFN, and resolved in 2009 pursuant to a settlement agreement and resulting Consent Judgment (“1996 Action”). The Plaintiffs’ Action also contained several allegations concerning the conduct of counsel for both the Defendants and Plaintiffs in the 1996 Action.

The Chambers Judge had held that the Plaintiffs’ Claims related to collective rights held by the MCFN and the Plaintiffs lacked the authority to represent the entire MCFN. The Chambers Judge further held that it would offend certainty and public policy to set aside the settlement agreement and Consent Judgment. The Court of Appeal confirmed that Decisions to strike a Claim under Rule 3.68(1) are subject to deference, absent an extricable error in law and that in applications pursuant to Rule 3.68, Courts must “err on the side of generosity”, allowing “novel, but arguable, actions to proceed”.

The Court held that the Chambers Judge erred in finding that the Plaintiffs’ Claims on their own behalf disclosed no reasonable cause of action, as the Claims were novel and there was very little law on the point, such that it was not “plain and obvious” that the Claims disclosed no cause of action. However, the Court held that the Chambers Judge did not err in finding that the Plaintiffs had no standing to pursue derivative Claims on behalf of the MCFN. The Court also dismissed the Plaintiffs’ Appeal respecting Claims asserted against counsel for the Defendants in the 1996 Action, holding that such claims are “interpreted strictly” and that there is no general duty of care owed by a lawyer for a defendant in an Action to the Plaintiff in that suit.

The Appeal was therefore allowed in part.

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