Aseniwuche Winewak First Nation v Canada

The Alberta Court of Queen’s Bench released a decision on April 14, 2015 in Aseniwuche Winewak First Nation v. Canada (Attorney General), dismissing an application to strike an action for an alleged failure to significantly advance the litigation.


The plaintiffs in this lawsuit initiated a lawsuit against the federal and provincial governments in 2004 in relation to “allegations of historic [A]boriginal rights in Alberta”.  Between 2010 and 2012, the Alberta Rules of Court changed so as to require parties to “significantly advance” litigation within a three year period or risk having that litigation struck. Previous to this legislative change, parties were given up to five years to significantly advance litigation before being struck in this fashion. On the basis of the new rules coming into effect in November 2010, the plaintiffs had until November 1, 2013 to significantly advance their lawsuit. The federal and provincial governments jointly asserted that nothing had been done which significantly advanced the litigation during this time period and they sought to have the action struck on this basis.

The plaintiffs argued that during the three-year period in which it appeared that nothing was happening to advance their action, in reality they were attempting to sort out a conflict of interest issue in relation to their counsel.  The provincial government first alleged that there was a potential conflict of interest between the plaintiffs and other clients of the law firm acting on their behalf in this matter. Another potential conflict issue arose when a senior government lawyer and deputy minister from Alberta left the government’s Aboriginal law department and, after a period of time, joined the law firm acting on the plaintiffs’ behalf. The plaintiffs alleged that in the course of resolving these conflict issues the provincial government refused to complete its document disclosure. The provincial government commenced a parallel action to resolve the conflict issues and this was accomplished through a court order executed in August 2012. The plaintiffs argued that this order ought to be accepted as “an act which was absolutely required and which did in fact significantly advance the action”.

Court’s decision

The Court first set out to review past decisions in order to find comparable situations to aid the Court’s determination. It found that a variety of actions could constitute significant advances to litigation, including: completing procedural steps under the Rules of Court; serving an affidavit of records; conducting questioning; providing meaningful responses to undertakings; obtaining a trial date; or appointing a case management justice, among others. However, there were also various actions that had not been found sufficient to satisfy this requirement, including: merely exchanging correspondence between parties or their counsel; merely proposing a litigation plan; changing counsel; or providing responses to undertakings that are not complete or are primarily “non answers”, among others. The Court also cited jurisprudence for the principle that it generally needs to interpret the Rules of Court “in a manner most favourable to the preservation of the right to litigate”.

The Court found that the conflict of interest issue in this case, which included the provincial government’s withholding of documents that would otherwise have been disclosed to the plaintiffs, needed to be resolved in a manner that either would allow the plaintiffs to continue with their current counsel or force them to get new counsel. The Court noted that the litigation at issue is complex, will be time-consuming and will require a high level of expertise and specialization in the area of Aboriginal law. The Court also noted that there were limited options for counsel available to the plaintiffs, which contributed to the conflicts issue. In the circumstances, the Court found that it was not appropriate to simply say that the plaintiffs should get another lawyer.

The Court held that obtaining a court order to resolve the conflicts issue had indeed significantly advanced the litigation since it clarified and cleared up conflict resolution problems that would allow for document disclosure to proceed between the provincial government and the plaintiffs.  It found that the parallel action that resulted in that order had been “inextricably linked” to this litigation and obtaining that order had reset the three-year clock in terms of the requirement for significant advancement of the litigation.

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