Digest: Peter Ballantyne First Nation v Canada (Attorney General), 2018 SKQB 250

• Date: September 18, 2019

Reported as: 2018 SKQB 250

Docket Number: QBG 2182/04 JCS , QB18243

Court: Court of Queen's Bench

Date: 2019-09-18

Judges:

• Smith

Subjects:

• Civil Procedure � Parties � Adding Parties
• Civil Procedure � Pleadings � Application to Amend
• Civil Procedure � Queen�s Bench Rule 3-72 � Application to Amend Pleading

Digest: The plaintiff, a Cree Nation, sued the defendant for depriving it of the use of land set aside for its people because of flooding concerns in the late 1920s and 1930s. The claim was struck by the Court of Queen�s Bench due to it being statute-barred. On appeal, the Queen�s Bench decision was upheld except in relation to the tort of continuing trespass. The defendants applied to add a defendant by way of third-party claim. They also sought leave to amend their statements of defence to assert that a portion of the lands were not reserve land and to include a request for an order of possession for portions of land that were subject to flooding. One defendant also sought amendments related to riparian rights and consent to trespass. The proposed third party consented to all of the applications except to the amendment asserting that a portion of the land was not reserve land. They indicated that that amendment would be a frivolous argument.
HELD: The defendants may be issue estopped from raising the question of whether the land was set aside as reserve land, but the final determination on that matter would be made in future court proceedings. The defendants had reserved the right to raise the issue long before the application to strike the claim based on it being statute-barred. It was not plain and obvious to the court that if the pleadings were amended they would raise no reasonable defence. A defendant did provide some evidence that the lands were not reserve land at the time in question. The court concluded that it was appropriate to allow the amendment to include the argument that the land may not be reserve land so that the issue could be thoroughly canvassed by the parties and the court. The proposed amendments to the statements of defence were allowed.

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