In 2003, the Stoney Nakoda Nations commenced an Action against the governments of Alberta and Canada seeking a declaration of Aboriginal title and rights to a large area of land in southern Alberta. In 2018, two members of the Blackfoot Confederacy brought Applications to join the Action as Defendants.

As pleadings had closed, the addition of the Applicants as Defendants was considered pursuant to Rule 3.74. The Case Management Justice noted the threshold requirement in Rule 3.74 that an Application to add a Defendant must be brought by a party to the Action. As the Applicants were not parties to the Action, the Court dismissed the Applications on that ground.

In arguing against a strict interpretation of Rule 3.74, the Applicants requested that the Court invoke its broad discretion pursuant to Rule 1.2 and section 8 of the Judicature Act, 2000 c J-2. The Court did not find it appropriate to exercise discretion to override the clear language of Rule 3.74. The relevant language in Rule 3.74 was described as deliberate, and notably distinct from the language of Rule 3.75 governing the addition of parties to an Application for Judicial Review.

The Court went on to hold that it would be inappropriate to exercise discretion in favour of the Applicants, reasoning that the interests of justice would not be served by adding the proposed Defendants while pre-Trial activities were well underway. Rather, the Court suggested that the appropriate mechanism for the Applicants to pursue involvement in the Action was through an Application for intervener status pursuant to Rule 2.10.

Lastly, the Court addressed the Applicants’ reliance on former Rule 38, which was in force at the commencement of the Action, and would have permitted the Applicants’ standing to apply for addition as Defendants. While Rule 15.2 provides that the current Rules apply to all existing proceedings, with “existing proceedings” defined in Rule 15.1 as proceedings commenced but not concluded under the former Rules, Rule 15.6 permits recourse to a former Rule to relieve difficulty or doubt arising on account of the transitional Rules. The Court was not satisfied that it was proper to override Rule 3.74, noting that such an override should be a rare exception, especially as the current Rules have now been in force for nearly a decade.