Callihoo et al. v. Canada (Attorney General), (2015) 617 A.R. 400 (QB)

• Judge: Gill, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: May 22, 2015
• Citations: (2015), 617 A.R. 400 (QB);2015 ABQB 337

Callihoo v. Can. (A.G.) (2015), 617 A.R. 400 (QB)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. JL.010

Dennis Callihoo and Rosalind Callihoo, acting on their own behalf and on behalf of all members of The Michel First Nation, and on behalf of all members of The Former Michel Indian Band No. 472 and the Descendants of Members of The Former Michel Indian Band No. 472 (plaintiffs/respondents) v. Attorney General of Canada (defendant/applicant)

(0103 05606; 2015 ABQB 337)

Indexed As: Callihoo et al. v. Canada (Attorney General)

Alberta Court of Queen's Bench

Judicial District of Edmonton

Gill, J.

May 29, 2015.

Summary:

The defendant, Attorney General of Canada, applied pursuant to rule 4.33 to have the action dismissed on the basis that three or more years had passed without a significant advance in the action. The plaintiffs stressed the merits of the action and the consequences to the plaintiffs of allowing the Crown to succeed on the rule 4.33 application. A successful application would have far reaching consequences, including eliminating Treaty rights and foreclosing constitutional protection for the plaintiffs. The plaintiffs also questioned the entitlement of the Crown to bring the application and rely on procedural defences. The plaintiffs submitted that the relevant time period was five years, not three years.

The Alberta Court of Queen's Bench granted the rule 4.33 application and dismissed the action. Rule 4.33 came into effect November 1, 2013. Canada filed the application on March 11, 2014. The relevant time period was three years. The last significant action that took place in the litigation was in May 2008 when Canada filed an Amended Amended Statement of Defence. Therefore, three or more years had passed without a significant advance. The Reply to the Amended Amended Statement of Defence and a Notice of Constitutional Question filed in June 2013 (the NCQ 2013) did not constitute significant advances. Under the Rules of Court a Reply was not required (rule 3.33(1)). The Reply filed in this action consisted of a short, simple denial. The Reply could not be said to have moved the litigation forward in a meaningful way. The NCQ 2013 was filed beyond the three year period. In any event, the NCQ 2013 was not a significant advance. Rule 4.33 was mandatory. The plaintiffs submitted that the "the honour of the Crown" principle prevented Canada from relying on procedural defences. The argument that procedural rules did not or should not apply in Treaty or Aboriginal claims had been considered and rejected in a number of cases.

Indians, Inuit and Metis - Topic 3

General - Duty owed to Indians by Crown (incl. fiduciary duties, consultation duties and honour of the Crown) - See paragraph 37.

Practice - Topic 5360

Dismissal of action - Grounds - General and want of prosecution - Delay - See paragraphs 1 to 36.

Counsel:

Karim Ramji (Donovan & Company), for the plaintiffs/respondents;

Linda Maj and Laura Klassen Russell (Department of Justice Canada), for the defendant/applicant.

This application was heard on May 22, 2015, before Gill, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on May 29, 2015.