Orr v. Fort McKay First Nation,

• Judge: Brown, J.
• Neutral Citation: 2014 ABQB 111
• Date: 20 February 2014
• Court: Court of Queen's Bench of Alberta (Canada)

Orr v. Fort McKay First Nation (2014), 587 A.R. 16 (QB)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. MR.012

Mike Orr (plaintiff) v. Fort McKay First Nation (defendant)

(1303 04365; 2014 ABQB 111)

Indexed As: Orr v. Fort McKay First Nation

Alberta Court of Queen's Bench

Judicial District of Edmonton

Brown, J.

February 25, 2014.

Summary:

Orr was an elected councillor of the Fort McKay First Nation. In July 2011, Fort McKay suspended Orr from his position. The suspension was quashed by the Federal Court. That decision was upheld on appeal in October 2012. Orr resigned as a councillor in February 2013. His action against Fort McKay sought remedies including damages for "breach of compensation for electoral office" of $230,444.72, representing Orr's pay for the period of December 2011 to October 2012. Orr applied for summary judgment for that amount.

A Master of the Alberta Court of Queen's Bench, in a decision reported at [2014] A.R. Uned. 143, dismissed the application. Orr appealed.

The Alberta Court of Queen's Bench dismissed the appeal.

Courts - Topic 1127

Masters - Appeals from - Standard of review - The Alberta Court of Queen's Bench discussed the effect of Hryniak v. Mauldin (2014 S.C.C.) on the standard of review to be applied under Alberta's civil procedure to the decision of a Master, particularly on summary judgment applications - The court concluded that the direction in Hryniak v. Mauldin regarding the deference to be shown to the motions judge on an application under Ontario's rule 20 for summary judgment did not apply to first instance decisions on applications for summary judgment brought under Alberta's rule 7.3, whether that decision was made by a Master or a judge - It did, however, apply to decisions on applications for judgment by way of a summary trial under Alberta's rule 7.5 (which decisions always had to be made by a judge, rather than a Master) - See paragraphs 10 to 21.

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - The Alberta Court of Queen's Bench discussed the test to be applied on an application for summary judgment - The court preferred a formulation of the test "which requires the Court to consider whether the evidence renders a claim or defence so compelling that the likelihood it will succeed is very high" - See paragraphs 22 to 29.

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - Orr was an elected councillor of the Fort McKay First Nation - In July 2011, Fort McKay suspended Orr from his position - The suspension was quashed by the Federal Court - That decision was upheld on appeal in October 2012 - Orr resigned as a councillor in February 2013 - His action against Fort McKay sought remedies including damages for "breach of compensation for electoral office" of $230,444.72, representing Orr's pay for the period of December 2011 to October 2012 - Orr's application for summary judgment in that amount was dismissed by a Master - The Alberta Court of Queen's Bench dismissed Orr's appeal - Orr's claim was not so compelling that the likelihood it would success was very high - Orr's submission that he had a contract or any legally enforceable arrangement of any kind with Fort McKay was not supported by the facts pled in his statement of claim - Orr was not entitled to summary judgment - See paragraphs 30 to 41.

Practice - Topic 8825.6

Appeals - General principles - Duty of appellate court on reviewing summary judgment decisions - [See Courts - Topic 1127 ].

Cases Noticed:

Fort McKay First Nation Chief and Council v. Orr, 2011 FC 1305, affd. (2012), 438 N.R. 379; 2012 FCA 269, refd to. [para. 3].

Fort McKay First Nation Chief and Council v. Orr, [2012] N.R. Uned. 7; 2012 FCA 17, refd to. [para. 3].

Gabriel v. Mohawk Council of Kanesatake et al., [2002] F.T.R. Uned. 310; 2002 FCT 483, refd to. [para. 8].

Hryniak v. Mauldin (2014), 453 N.R. 51; 314 O.A.C. 1; 2014 SCC 7, consd. [para. 10].

Bahcheli v. Yorkton Securities Inc. et al. (2012), 524 A.R. 382; 545 W.A.C. 382; 2012 ABCA 166, refd to. [para. 10].

Burns (P.) Resources Ltd. v. Locke, Stock & Barrel Co., [2013] A.R. Uned. 220; 2013 ABQB 129, refd to. [para. 10].

SBI Management Ltd. v. 109014 Holdings Ltd. and Alberta (Attorney General) (1981), 32 A.R. 6 (C.A.), refd to. [para. 16].

Cardinal v. Sucker Creek First Nation, [2012] A.R. Uned. 512; 2012 ABQB 490 (Master), refd to. [para. 16].

Attorney General for Ontario v. Victoria Medical Building Ltd., [1960] S.C.R. 32, refd to. [para. 16].

Polson Iron Works v. Munns (1915), 24 D.L.R. 18 (Alta. S.C.), refd to. [para. 16].

Janvier et al. v. 834474 Alberta Ltd. et al. (2010), 511 A.R. 76; 2010 ABQB 800, refd to. [para. 18].

Murphy Oil Co. et al. v. Predator Corp. et al. (2006), 384 A.R. 251; 367 W.A.C. 251; 2006 ABCA 69, refd to. [para. 19].

Beier et al. v. Proper Cat Construction Ltd. et al. (2013), 564 A.R. 357; 2013 ABQB 351, refd to. [para. 19].

Richter v. Chemerinski et al., [2010] A.R. Uned. 364; 2010 ABQB 302, refd to. [para. 19].

Pecek v. Fedun (2007), 427 A.R. 356; 2007 ABQB 133, refd to. [para. 19].

Lameman et al. v. Canada (Attorney General) et al. (2008), 372 N.R. 239; 429 A.R. 26; 421 W.A.C. 26; 2008 SCC 14, refd to. [para. 25].

Deguire v. Burnett (2013), 568 A.R. 341; 2013 ABQB 488, refd to. [para. 29].

O'Hanlon Paving Ltd. v. Serengetti Developments Ltd. et al. (2013), 567 A.R. 140; 2013 ABQB 428, refd to. [para. 29].

9098-9005 Quebec Inc. v. Her Majesty the Queen, 2012 TCC 324, refd to. [para. 31].

Esquega et al. v. Canada (Attorney General), [2005] F.T.R. Uned. 640; 2005 FC 1097, refd to. [para. 34].

Gull Bay First Nation v. Canada (Attorney General) - see Esquega et al. v. Canada (Attorney General).

Awashish et al. v. Atikamekw d'Opitciwan Indian Band et al., [2005] F.T.R. Uned. C25; 2005 FC 1703, refd to. [para. 34].

Palsgraf v. Long Island Railway Co. (1928), 248 N.Y. 339 (C.A.), refd to. [para. 38].

Authors and Works Noticed:

Brown, The Possibility of "Inference Causation": Inferring Cause-in-Fact and the Nature of Legal Certainty (2010), 55 McGill L.J. 1, pp. 31 to 35 [para. 18].

Counsel:

Priscilla Kennedy (Davis LLP), for the plaintiff;

J. Trina Kondro (Ackroyd LLP), for the defendant.

This appeal was heard on February 20, 2014, by Brown, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on February 25, 2014.