This Decision concerned an Application by the Defendants to dismiss an Action for long delay pursuant to Rule 4.33. The Plaintiff, Samantha Whalen, was an elected councillor of the Fort McMurray 458 First Nation (“FMFN”). The Defendant, Bradley Callihoo, was FMFN’s Chief Executive Officer, while certain other individual Defendants were elected FMFN councillors. The corporate Defendant was a numbered company incorporated and controlled by Mr. Callihoo.

In the underlying Action, Ms. Whalen claimed that following her election in June 2018, she uncovered financial irregularities in respect of FMFM. Specifically, Ms. Whalen, through a Statement of Claim filed on August 23, 2018, argued that she discovered, among other things, that Mr. Callihoo received a payment of $600,000 in relation to a settlement received by FMFN.

Ms. Whalen first attempted to characterize the underlying Action as part of a larger “governance dispute” with FMFN, which, she argued, led to other litigation that had the effect of advancing the present Action; namely, there was a quasi-related injunction Action and Judicial Review proceedings. The Court, through Application Judge Park, noted that in certain circumstances, an advance in one Action can constitute a significant advance in a different Action for purposes of a 4.33 Application. While the Court agreed with Ms. Whalen that there was some “underlying commonality” among the proceedings, it was a stretch to characterize them as being “inextricably linked”.

Turning to settlement discussions that had ensued between the parties in 2019 and early 2020, the Court found “numerous meetings” were held and there were “many, many conversations about settling”. Settlement discussions, in and of themselves, do not generally constitute a significant advance in an Action. However, settlement discussions that have the effect of narrowing the issues in dispute may be viewed as a “significant advance” for the purposes of Rule 4.33.

At the outset of the litigation, one of the primary points of contention, in addition to the alleged FMFN settlement payment to Mr. Callihoo, had to do with the payment to the parties of various Christmas bonuses. Ms. Whalen contended that these bonuses, which amounted to hundreds of thousands of dollars in the aggregate, were paid out unlawfully. The Christmas bonuses were among the issues considered by the parties during their settlement discussions. Although the negotiations did not result in the conclusion of the proceedings, the evidence pointed to the parties’ positions becoming more “congruent” as settlement discussions progressed, and thereby resulted “in a narrowing of the issues in dispute”. In light of the foregoing, Applications Judge Park found that the settlement discussions engaged in by the parties significantly advanced the Action. The Defendants’ Application was dismissed.