Digest: Michel v Canada (Attorney General), 2018 SKQB 117

Date:April 23, 2018
 
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Reported as: 2018 SKQB 117

Docket Number: QB17509 , QBG 2182/04 JCS

Court: Court of Queen's Bench

Date: 2018-04-23

Judges:

  • Smith

Subjects:

  • Civil Procedure � Queen�s Bench Rules, Rule 4-9

Digest: The plaintiffs, the chief and members of the Peter Ballantyne Cree Nation (PBCN) brought an action in 2004 against the three defendants for flooding portions of the Indian reserve occupied by PBCN and thus wrongfully deprived PBCN of the use of its land. The case management judge was appointed under The Queen�s Bench Rules in 2012. The defendants applied to strike the claim on the basis that it was out of time under The Limitations Act and in 2014 the parties agreed that it would be appropriate for the case management judge to hear the defendants� summary judgment application. The judge found that the claims, including PBCN�s claim of continued trespass, should be struck (see: 2014 SKQB 327). The plaintiffs� appeal of that decision was allowed by the Court of Appeal. Its decision confirmed there was a continuing trespass and ordered the matter to be returned to the Court of Queen�s Bench to determine the merits of SaskPower�s arguments relating to the consent issues. SaskPower and the Government of Saskatchewan applied to reconvene the original summary judgment application to determine whether the claim for continuing trespass must fail by reason of consent or that it was barred by promissory estoppel. The case management judge then announced that he would be assuming supernumerary status in December 2017. The plaintiffs advised that pursuant to Queen�s Bench rule 4-9, they did not agree with the case management judge hearing any further summary judgment applications in the action and the defendants� arguments should proceed on that basis. In light of the judge�s pending retirement, they further requested that he withdraw to permit the appointment of another judge. Counsel for SaskPower and Saskatchewan argued that the plaintiffs should not be allowed, in the middle of the process, to withdraw their consent to...

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