Reported as: 2018 SKCA 20 ,  5 WWR 111
Docket Number: CACV 3097 , CA17130
Court: Court of Appeal
- Constitutional Law � Validity of Legislation
- Civil Procedure �Stay of Proceedings � Abuse of Process
Digest: The applicant Indian nation appealed a decision of the Court of Queen�s Bench wherein the court dismissed its request for a stay and granted the respondents an order for disclosure and publication of financial information pursuant to the First Nations Financial Transparency Act (FNFTA). Prior to the respondents� application to the Court of Queen�s Bench for disclosure (the �QB Action�), the applicant issued a statement of claim in the Federal Court challenging the constitutionality of the FNFTA (the �Federal Court Action�). The applicant�s request for a stay was primarily grounded on the argument that the QB Application raised issues that were already before the Federal Court. It based its claim for a stay on the inherent jurisdiction of the Court of Queen�s Bench to prevent an abuse of its process. The chambers judge found that while it may be an abuse of process to commence two lawsuits between the same parties that effectively deal with the same subject matter, that was not the situation before him. The QB Action involved different parties and the Federal Court Action did not engage the underlying concern of parallel or duplicative proceedings because the constitutional issue at its heart was not raised in the QB Action. A decision in the Federal Court Action would not dispose of the QB Action. The respondents would be entitled to pursue the QB Action regardless of the Federal Court�s jurisdiction.
HELD: The appeal was dismissed. The applicant deliberately chose not to challenge the validity of the FNFTA in the Court of Queen�s Bench and a constitutional challenge cannot be incorporated by reference into another action. Thus, the applicant�s reference to its pleadings in the Federal Court Action did not raise the constitutional issue in the QB Action. Further, the Court of Queen�s Bench can only deal with constitutional questions if notice is provided in accordance with The Constitutional Questions Act. There is a legal presumption that the...