The plaintiffs commenced an action against Canada and Alberta in 2001, asserting rights on behalf of members and descendants of the former Michel Indian Band No. 472.
According to an earlier judgment in this matter, the former Michel Band is no longer recognized as an entity under the Indian Act as a result of an enfranchisement completed in 1958 that allowed Band members to take individual titles to the Band’s former reserve lands. The dispute focused on the effect of that enfranchisement and “the timeliness of asserting legal claims against Canada and Alberta over 40 years later”. In 2006, the action was summarily dismissed as against Alberta, amendments were made to the plaintiffs’ statement of claim and the plaintiffs filed their first notice of constitutional question. Canada amended its own statement of defence in 2008 and the plaintiffs filed a one-sentence reply the same year. In 2011, the plaintiffs’ lawyer filed a notice of withdrawal of lawyer of record and in 2013 the plaintiffs filed a second notice of constitutional question.
The Court noted that it was required to apply Rule 4.33 of the Alberta Rules of Court and dismiss the action if it found more than 3 years had passed without any “significant advance in the action”. The Court also noted case law setting out examples of actions that would not constitute a significant advances, such as a change of legal representation for the plaintiff or a unilateral request for case management.
Reviewing the timeline for this file, the Court concluded that the last significant action took place in 2008 when Canada filed its last amended statement of defence. It concluded that neither the one-sentence reply filed by the plaintiffs that same year nor their 2013 notice of constitutional question constituted further significant advances.
The Court noted that the reply was not required by the rules and amounted to little more than “a short, simple denial” that “[could not] be said to have moved the litigation forward in a meaningful way”. The Court went on to find that the 2013 notice of constitutional question was filed beyond the 3 year period running from the last significant advance and found that this notice did not constitute a significant advance in any event. A notice of constitutional question provides notice to the federal and provincial governments that legislation is being challenged and ensures that the Court record is adequate for the Court to rule on the constitutional validity of legislation. The Court found this to be similar to a “housekeeping activity” such as setting a date for examinations for discovery.
The Court also rejected an argument from the plaintiffs that the honour of the Crown prevents Canada from relying on procedural defences such as this application, noting that a similar argument had been rejected in various cases including the Supreme Court of Canada’s 2011 decision in Lax Kw’alaams Indian Band v. Canada.