Lameman v. Alberta, 2011 ABQB 40

Court of Queen ’ s Bench of Alberta Citation: Lameman v. Alberta, 2011 ABQB 40 Date: 20110128 Docket: 0803 06718 Registry: Edmonton Between: Alphonse Lameman on his own behalf and on behalf of all other Beaver Lake Cree Nations beneficiaries of Treaty 6, and the Beaver Lake Cree Nation Plaintiffs/Applicants - and - Her Majesty the Queen in Right of the Province of Alberta and the Attorney General of Canada Defendants/Respondents _______________________________________________________ Decision of the Honourable Mr. Justice K.D. Yamauchi _______________________________________________________ I.

Introduction [ 1 ] On October 19, 2010, the Plaintiffs sought an adjournment of the Defendants’ applications (“Applications to Strike”) pursuant to rule 129 of the Alberta Rules of Court , Alta. Reg. 390/68 (“ Old Rules ”). The Applications to Strike were to start on December 6, 2010, for 5 days. The Plaintiffs also sought an extension of the November 1, 2010 deadline for filing its brief opposing the Applications to Strike. [ 2 ] The Plaintiffs ground their applications on the following:

1. they are prepared to amend their statement of claim concerning their “livelihood” claim, which would reduce the complexity of the Applications to Strike; and 2. they could not afford the legal fees necessary to respond to the Defendants’ briefs and were about to retain another law firm that is prepared to do some of the work on a pro bono basis (the “ Pro Bono Firm”), but the Pro Bono Firm cannot begin to work on this matter until sometime in the Spring of 2011. II.

Facts - The Claim [ 3 ] The Plaintiffs claim that various land developments in Alberta, in areas where they traditionally hunt, trap and fish (the “Core Traditional Territory”), have had, and continue to have, an adverse impact, individually or cumulatively, on the exercise of their treaty rights.

Under Treaty 6, the Plaintiffs’ ancestors ceded lands in what is now the province of Alberta, in exchange for reserves and other benefits including the right to hunt, trap and fish throughout the surrendered tract. [ 4 ] The Plaintiffs claim that under Treaty 6, the Crown has an obligation to manage the cumulative effects of developments.

More specifically, the Plaintiffs allege that their treaty rights impose an obligation on the Crown to discharge its duties consistently with the Crown's promise that it would not interfere with or deprive the Plaintiffs of the meaningful exercise of those rights, including managing wildlife populations, habitats and water resources to ensure the continuing meaningful exercise of the rights (“Management Duties”).

Further, once it became evident that the Plaintiffs' treaty rights have been, or will be, compromised, the Crown had a duty to avoid further compromising, and to take active steps to restore the Plaintiffs' meaningful exercise of their treaty rights. [ 5 ] The Defendants have authorized, or are in the process of authorizing, oil and gas-related activities, forestry activities, mining activities and other activities in or around areas in which the Plaintiffs hunt, trap and fish.

While the Plaintiffs do not challenge the validity of individual assessments or authorizations relating to any particular development, they allege a systemic problem resulting from the Crown's overall failure to manage the "taking up" of lands, including a systemic failure to consult and accommodate the Plaintiffs on issues arising from the cumulative effects of developments on their treaty rights. [ 6 ] In addition to damages, equitable compensation, or both, the Plaintiffs seek declarations that: (

a) they have a constitutional right to hunt, trap and fish certain species for subsistence, and for cultural, social and spiritual needs; (

b) the cumulative effects of the developments or any of them unjustifiably infringe their treaty rights; (

c) the Defendants have a duty to consult with and, if indicated, accommodate the Plaintiffs as to the cumulative effects of the developments on their treaty rights, under court supervision; (

d) the Defendants, or either of them, have a duty to revoke the authorizations for, or to otherwise limit and manage the effects of, the developments which unjustifiably infringe the Plaintiffs’ treaty rights are of no force or effect; and (

e) the Defendants have a duty to address the following in a cumulative effects consultation with the Plaintiffs, with the goal of restoring, securing or both restoring and securing, the meaningful exercise of their treaty rights in perpetuity: (

i) the appropriate exercise of the Management Duties;

(ii) the appropriate process for addressing the infringements; (iii) the appropriate way to address some or all of the failures listed in the Plaintiffs’ claim; (iv) revocation of authorizations for the developments, or limitations and management of the effects of the developments, which unjustifiably infringe the Plaintiffs’ treaty rights; (

v) restoration of the Core Traditional Territory; (vi) appropriate funding for the Plaintiffs to participate in cumulative effects consultation and related processes; and, (vii) any other issues identified by the Court. The claim originally sought a declaration that the Plaintiffs have a constitutional right to sell and trade certain wildlife species for livelihood purposes. The Plaintiffs have since amended the claim to delete this aspect. III. Facts - The Litigation to Date [ 7 ] This matter involves an action that Beaver Lake Cree Nation, a small First Nation, commenced against Canada and Alberta.

The legal issues are complex, involving constitutional and aboriginal law. The matter has been in case management for over two years. [ 8 ] The Applications to Strike were commenced by Canada filing its notice of motion on May 29, 2009 and Alberta filing its notice of motion on June 1, 2009. This Court set deadlines for filing affidavit evidence to support the Applications to Strike.

The Applications to Strike were originally set to be heard on March 15-19, 2010. [ 9 ] The parties agreed to an extension of the Plaintiffs’ affidavit filing deadline from September 30, 2009, to October 8, 2009, and this Court further extended that time to January 15, 2010. [ 10 ] In October 2009, the Plaintiffs amended the statement of claim and in December 2009, they sought a further extension for filing affidavits to January 19, 2010, prompting new dates for the filing of briefs that would allow the parties to proceed with the March 15-19, 2010 hearing.

At that time, the Plaintiffs indicated that they could meet a March 8, 2010 deadline for filing their brief. The Plaintiffs filed their affidavits on January 19, 2010, and served on January 20, 2010. [ 11 ] At a case management meeting held on January 21, 2010, this Court decided that the Applications to Strike could not go forward in March 2010, and the parties used the March 2010 dates for cross-examinations. In June 2010, the parties exchanged emails regarding available dates in November 2010 and December 2010, for the Applications to Strike.

During the June 21, 2010 case management meeting, this Court ordered that the Applications to Strike would be heard December 6-10, 2010, with the following deadlines for filing briefs: Defendants’ briefs due August 30, 2010 Plaintiffs’ brief due November 1, 2010 Defendants’ reply briefs due November 30, 2010

[ 12 ] A case management meeting was held on September 8, 2010. The Plaintiffs raised no concerns at that time about meeting their November 1, 2010 deadline, or that they would require an adjournment of the December hearing dates. [ 13 ] On October 19, 2010, the Plaintiffs served on the Defendants the affidavit of Gerald Whitford and a notice of motion seeking an extension of the time to file for them to file their brief and an adjournment of the Applications to Strike to a date uncertain. [ 14 ] Mr. Whitford is Beaver Lake Cree Nations’ administrator.

In his affidavit, he swore that the Plaintiffs could not afford the estimated legal fees for its lawyers to amend their pleadings, prepare the briefs and argue the Applications to Strike. His affidavit indicates that one of the Plaintiffs’ lawyers informed him that the Pro Bono firm had offered to assist them, on a pro bono basis, in their preparation for the hearing and amendment to their pleadings. Mr.

Whitford was also informed that due to scheduling conflicts, the Pro Bono firm would not be available to provide its assistance until the Spring of 2011. [ 15 ] During his cross-examination on his affidavit, it became apparent that Mr. Whitford was unfamiliar with many of the facts to which he swore in his affidavit and that there were many questions he was unable to answer. It is apparent from counsels’ submissions and the questions they raised during the cross-examination on Mr. Whitford’s affidavit that the Pro Bono firm is located in England.

This Court, however, initially had no sworn evidence on this point, or on the nature of the Pro Bono firm or its proposed retainer. [ 16 ] At the adjournment application that this Court heard on October 27, 2010, the Defendants raised significant concerns about the lack of information that the Plaintiffs provided to them to justify their adjournment application.

This Court granted an extension for filing the Plaintiff’s brief to November 8, 2010 (the next case management meeting), and ordered that the Plaintiffs provide further information to justify the adjournment, as itemized by this Court, by Alberta, and by Canada.

This information included information regarding the name of the Pro Bono firm, the name of the persons from the Pro Bono firm who will be involved with this matter, certain details of the Pro Bono firm’s retainer, whether the Plaintiffs were seeking funds from other sources to fund this lawsuit, what the present law firm’s role would be in the future, and whether there were sufficient funds to cover the Plaintiffs’ costs on an on-going basis. [ 17 ] The Plaintiffs filed two affidavits before the November 8, 2010 case management meeting.

The first, sworn by Garry Benson, Q.C. instructing counsel for the Plaintiffs, attached a letter from Jane Russell of Tooks Chambers, the Pro Bono firm, which is a United Kingdom law firm. Ms.

Russell’s letter indicated that the Pro Bono firm would not be directly retained by the Plaintiffs, but would assist the Plaintiffs’ law firm, Woodward & Company LLP (“Woodco”), in the litigation “including providing research and writing on the [Applications to Strike] and on other aspects of the legal action.” The letter further stated that the Pro Bono firm’s lawyers, are not members of the Law Society of Alberta, practice in several areas of human rights and indigenous rights law, and are not available to travel to Canada to work on this case until March 2011. [ 18 ] Mr.

Benson’s affidavit confirmed that the Plaintiffs do not have funds to cover the cost of completing this litigation, but that Beaver Lake Cree Nation’s chief was actively fundraising. Mr. Benson further indicated that he did not know how much money the Plaintiffs would save through the Pro Bono firm providing pro bono services.

The Plaintiffs claimed solicitor-client privilege over many of the inquiries that this Court and the Defendants raised. [ 19 ] Susan Patricia Smitten is the Executive Director of RAVEN, the acronym for Respecting Aboriginal Values & Environmental Needs, a registered charitable organization that provides financial support for litigation to a number of aboriginal groups, including Beaver Lake Cree Nation. Ms. Smitten swore the second affidavit on which the Plaintiffs rely. Ms.

Smitten’s affidavit provides details on the fundraising efforts RAVEN has undertaken on behalf of the Plaintiffs and states that, to date, RAVEN has raised $256,946.50 to help pay for this litigation. [ 20 ] At the November 8, 2010 case management meeting, Alberta and Canada continued to oppose the adjournment application, and were critical of the Plaintiffs’ response to this Court’s order to provide more information. Canada argued that the Plaintiffs were treating this Court’s orders as “suggestions,” and that the Plaintiffs had waived solicitor-client privilege by providing some answers.

It further argued that this Court cannot determine whether granting an adjournment is reasonable if it does not know how much money will be saved. Further, the scheduling conflict relates to two of Pro Bono firm’s lawyers and is based on those lawyers’ ability to travel to Canada. There was no explanation why other lawyers in the Pro Bono firm’s chambers, who were assigned to work on the file, could not do the research and writing work earlier and from their chambers in England.

Alberta argued that there were major deficiencies in the material that the Plaintiffs provided and that it was necessary to develop an overall litigation plan, rather than continue to do this in a piecemeal fashion.

[21] Mr. Jack Woodward of Woodco, attended the November 8, 2010 case management meeting by telephone conference call, andargued that the adjournment application was not only necessitated by the funding and new counsel issue, but also by the need to amendthe statement of claim in response to the Applications to Strike briefs that the Defendants filed. Those amendments, he suggested, wouldshorten the Applications to Strike hearing by about 75%.

He argued that it was not unreasonable for the Plaintiffs to request anadjournment to refine the issues and deal with the deficits in the claim that the Defendants raised in their briefs. [22] The suggested amendments were in relation the Plaintiffs’ “livelihood” claim. This Court asked Mr. Woodward if theproposed amendments would take out the “livelihood” claim completely. His answer was initially equivocal, and eventually he answeredthat the amendment would not assert a commercial right, but a right to sell and trade fish and game for a subsistence living.

During thecourse of the December 10, 2010 hearing, this Court raised this question again with Mr. Mildon of Woodco, asking whether thePlaintiffs would be indirectly approaching the question of the livelihood claim. Mr. Mildon indicated that the amendments to theStatement of Claim entirely removed the question of whether there was a right to sell or trade fish and game, and that this decision wasmade to simplify the Applications to Strike. [23] This Court ordered the Plaintiffs to file the amendments to the statement of claim by November 22, 2010.

It further indicatedthat it was not granting the adjournment application, only adjourning the filing of the Plaintiffs’ briefs until December 10, 2010. It leftopen the possibility that the hearing might proceed on that date. December 10, 2010, was also set to deal with the adjournmentapplication, the amendments to the statement of claim, the development of a litigation plan, and other issues that might arise. IV. Analysis A.

What factors should a court consider when exercising its discretion to grant an adjournment? [24] The Supreme Court of Canada articulated the general rule that applies to adjournments in R. v. Barrette, (SCC), [1977] 2 S.C.R. 121, 68 D.L.R. (3d) 260. It said at para. 6: It is true that a decision on an application for adjournment is in the judge's discretion. It is, however, a judicial discretion so that hisdecision may be reviewed on appeal if it is based on reasons which are not well founded in law.

This right of review is especially widewhen the consequence of the exercise of discretion is that someone is deprived of his rights, whether in criminal or in civil proceedings. See also the obiter dictum of the Court of Appeal in Dreco Energy Services Ltd. v.

Wenzel Downhole Tools Ltd., 2010 ABCA 257 atpara. 14, to the effect that a case management judge has a wide discretion to grant adjournments to allow for the proper marshalling of evidence and prosecution of litigation, particularly in complex and multi-faceted law suits.[1] [25] Courts, following the lead in Barrette, have held that deciding whether to grant adjournments requires the balancing ofinterests between the parties and the administration of justice in the orderly processing of civil trials, and have identified a number offactors in both the civil and criminal context. Civil context [26] In Khimji v.

Dhanani (2004), (ON CA), 69 O.R. (3d) 790 at para.14 (C.A.), Laskin J. (in dissent) indicated that a trial judge exercising this discretion must balance the interests of the plaintiff, the interests of the defendant and theinterests of the administration of justice in the orderly processing of civil trials on their merits.

The factors he considered included, a justdetermination of the real matters in dispute; prejudice caused by refusing or granting an adjournment; the applicant's explanation for notbeing ready for trial; the length of the adjournment that the applicant is requesting; and the disruption to the court's trial schedule. [27] The majority adopted Laskin J.’s statement of the principles governing the appeal, but concluded at para. 27, that a further

factor was relevant, viz., the need effectively to enforce court orders. The trial judge had granted an earlier adjournment application toallow the appellant to obtain legal counsel. That adjournment was peremptory on the appellant. Thus, the Court of Appeal dismissed theappeal. [28] In Bank of Montreal v. Lysyk, 2003 ABQB 47, Veit J. was also dealing with an adjournment application to permit thedefendant to retain legal counsel.

She refused the application on the basis that the defendant, whose assets were frozen, had no income,and had been looking for representation for five months before the application, was unlikely to find a lawyer in the requested additionaltwo to three weeks. She further noted that even if the defendant was in a position to retain a lawyer, that lawyer would not be prepared toproceed immediately. She relied on the decision of the Supreme Court of Canada in Darville v.

R. (1956), (SCC), 25C.R. 1, in which the court held that a court will not grant an adjournment to allow a party to secure witnesses, unless there is “somerealistic expectation” that the adjournment could produce such witnesses. [29] Somerset Specialities Ltd. v. Keith Strub Construction Ltd., 2007 ONCA 885 also dealt with the question of whether to grantan adjournment to ensure the availability of preferred trial counsel.

The Ontario Court of Appeal upheld the trial judge’s refusal to grantan adjournment, noting at para. 6: ... [W]e see no error in the trial judge's treatment of the appellant's request at trial for an adjournment. The history of this matter asoutlined for the trial judge included numerous earlier adjournments requested and obtained by the appellant and a denial by the RegionalSenior Justice of an adjournment request by the appellant a mere ten days prior to the scheduled commencement date of the trial.

On ourreading of the trial judge's adjournment ruling, he simply declined to exercise his discretion to grant an adjournment at trial - as he wasentitled to do - in light of this history. We note that the same ground for the adjournment request - the unavailability of the appellant'spreferred trial counsel - was presented to the trial judge as had been advanced before the Regional Senior Justice ten days earlier. [30] In Matthison v. Bradburn (Trustee of), 2007 ABCA 173, 412 A.R. 19, the defendant (appellant) had, on the day of trial,sought an adjournment to amend his pleadings.

The trial judge denied the request. The Court of Appeal dismissed the appeal, noting thatthe trial judge had considered the following: 1. the issue at which the amendment was aimed, had been known to trial counsel for several years, 2. the appellant had many opportunities to amend in the meantime, 3. there had been lengthy and repeated delays in bringing the matter to trial at the Appellant’s instance, 4. prejudice, both actual and presumed, due to the lapse of time, and 5. that the application for adjournment was a “desperate attempt to delay this proceeding.” [31] The Court of Appeal in Barker v.

Sowa, 2003 ABCA 159, identified three factors relevant to an appeal of a decision to refusean adjournment: 1. the chambers judge failed to provide reasons for the refusal; 2. the respondent tendered no evidence that a short adjournment would have prejudiced him; and 3. the respondent was also dilatory in prosecuting his defence. This Court notes that other than, possibly, the issue of prejudice, these factors are not relevant to this application.

[ 32 ] In Sprostranov v. State Farm Mutual Automobile Insurance Co., [2009] O.J. No. 923 (Sup. Ct. Jus.) , Karakatsanis J. granted the plaintiff’s appeal of the Deputy Judge’s dismissal of his action after failing to grant an adjournment. He noted: The Deputy Judge's decision is understandable given the nature of the submissions made by Mr. Koskie in the morning. The Deputy Judge was patient and made every effort to be fair and reasonable. I am persuaded however that the interests of justice required that the plaintiff be granted the adjournment.

Notwithstanding the other considerations, it was necessary to consider the important principle that, as far as possible, cases should be resolved on their merits .

The plaintiff should not bear the consequences of his counsel's failure to adequately assist the Deputy Judge with respect to why it would be prejudicial to the plaintiff to proceed when this was a first appearance and prejudice to the defendant could have been easily remedied by a costs award. (Emphasis added) [ 33 ] From the following cases, one can see that a court might consider the following factors when considering whether it should exercise its discretion to grant an adjournment: 1. courts should make a just determination of the real matters in dispute and they should decide cases on their merits; 2. the prejudice caused by granting or denying the adjournment; 3. the applicant’s explanation for not being ready to proceed; 4. the length of the adjournment the applicant is seeking and the consequent disruption of the court’s schedule; 5. the importance of effectively enforcing previous court orders; 6. the proper marshalling of evidence and prosecution of complex and multi-faceted actions; 7. whether there is a realistic expectation that the adjournment will accomplish its stated purpose; 8. the history of the proceedings, including other adjournments and delays, and at whose instance those adjournments and delays occurred; 9. where a party is seeking the adjournment to amend pleadings, how long counsel has known of the issue to which the amendment is aimed and whether counsel has had previous opportunities to amend; 10. whether the application is merely an attempt to delay the proceedings; and 11. the party who seeks the adjournment should not bear the consequences of its counsel’s failures.

Criminal context [ 34 ] There are many criminal cases that deal with adjournment applications when the accused is seeking to retain legal counsel. Some of the factors raised in these cases might be adaptable to the civil context. However, one must be mindful of the fact that in the criminal context, the issue is not simply the question of a fair trial, but the constitutional right to a fair trial given the various interests at

stake. [35] Courts have considered the following: (

a) R. v. Currie 2008 ABCA 374, 446 A.R. 41 at paras. 63 and 70, the Court of Appeal approved the trial judge’s consideration ofwhether the Applicant for the adjournment made diligent efforts to obtain counsel, whether there was some temporary obstacle to legalcounsel acting or attending, and whether a request for an adjournment was actually made. (

b) R. v. Phillips, 2003 ABCA 4 at para. 11 and 12, aff’d R. v. Phillips, 2003 SCC 57 the Court of Appeal upheld the trial judge’sconclusion that the Applicant for the adjournment had not made diligent efforts to obtain counsel and that the adjournment applicationwas an attempt to delay court proceedings. The Court of Appeal also held that the trial judge properly considered the complexity andnature of the case to determine that the Applicant was able to conduct the proceedings on his own. (

c) R. v. Halnuck (1996), 1996 NSCA 148 , 107 C.C.C. (3d) 401 (NSCA); aff’d (SCC), [1997] 1 S.C.R.533, citing R. v. Beals (1993), (NS CA), 126 N.S.R. (2d) 130 (NSCA) set out a number of factors at para. 80, some ofwhich can be summarized as follows: 1. The right to be represented by counsel must be exercised honestly and diligently so as not to delay a scheduled trial (at para.80(4)); 2.

Relevant facts to take into account include (at para. 80(5)): - whether there have been prior adjournments because counsel was unavailable, - the Applicant’s familiarity with the justice system; - the complexity and seriousness of the case; - the public interest in the orderly and expeditious administration of justice, - the accused has been refused legal aid and when that refusal was communicated to the accused. 3. An adjournment should generally be granted if the absence of counsel is not the Applicant’s fault and the Applicant is notcomplicit in the absence (at para. 80(6)). (

d) R. v. Tsvenar (1991), (AB KB), 126 A.R. 104 (Q.B.), considered that the applicant’s actions contributed tothe absence of counsel (at paras. 11-12), that there had been a previous adjournment application (para. 13), and that defence counselapplied for the adjournment on the day of trial despite having no contact with his client for four months prior to trial (at para. 13). (

e) R. v. Bruneau, 1983 ABCA 137 , [1983] 5 W.W.R. 89, 44 A.R. 289 (C.A.), the Court of Appeal noted (at para. 12): We understand, then, the rule now to be that an accused is entitled to an adjournment when, on the date set for trial, his counsel fails toappear unless, on the facts of the specific case, the trial judge can reasonably infer that the failure was a deliberate tactic to which theaccused was a party.

B. Is an adjournment appropriate in these circumstances? The New Rules [ 36 ] Canada and Alberta brought the Applications to Strike under Old Rules r. 129. One now finds this type of application under rule 3.68 of Alberta Rules of Court , Alta. Reg 124/2010 (“ New Rules ”). This application was first heard on October 27, 2010. The New Rules came into effect on November 1, 2010. The parties made further submissions on November 8, 2010. Counsel for Alberta noted that the New Rules recognize the parties’ responsibility to move litigation along and that the overarching Foundational Rules that one finds as

Part 1 of the New Rules , provide that the New Rules are intended to be used to fairly and justly resolve claims in a timely and cost-effective way, New Rules r. 1.2(1). [ 37 ] The Foundational Rules further provide that the New Rules are to be used to: (

a) identify the real issues in dispute; (

b) facilitate the quickest means to resolve a claim at the least expense; (

c) encourage early resolution by the parties themselves; and (

d) provide an effective, efficient and credible system of remedies and sanctions to enforce rules, orders and judgments. [ 38 ] In particular, New Rules r. 1.2(2)(

d) obliges the parties to communicate honestly, openly and in a timely manner. Further New Rules r. 1.2(3) places the obligation to achieve these purposes on the parties, including an obligation to facilitate the quickest means to resolve the claim at the least expense, to refrain from filing applications that do not further the purpose and intention of the New Rules , and to use publicly-funded court resources effectively. [ 39 ] New Rules r. 15.12 , which one finds under New Rules

Part 15 headed “Transitional Provisions and Coming into Force” provides: Where these rules impose a new test, provide new criteria or provide an additional ground for making an application in an existing proceeding, these rules apply in respect of the application if the application was made but has not been heard prior to the coming into force of these rules . [Emphasis added] [ 40 ] Assuming, without deciding, that the Foundational Rules impose a new test or criteria, the New Rules do not apply to this adjournment application. It was heard initially before the New Rules came into effect.

The adjournment application was continued after the rules changed. [ 41 ] If this Court is wrong in this analysis, and the New Rules apply to the adjournment application, this Court finds that the actions of Plaintiffs’ counsel have breached the Foundational Rules contained in the New Rules . There was no open communication in a timely manner. Alberta and Canada contemplated the Applications to Strike from virtually the beginning of this litigation and the Plaintiffs were aware of this contemplated application.

Plaintiffs’ counsel indicated that they were prepared to file a brief in opposition to the application on several occasions, and they agreed to comply with particular deadlines. This Court accepts that the adjournment application was not on the day the Plaintiffs’ brief was due or on the date of the Applications to Strike.

However, given the lengthy time lines in place, the previous extensions of deadlines, and Plaintiffs’ counsel’s failure to mention any concerns during the September 8, 2010 case management meeting, the 12 days between the Plaintiffs’ notice of motion and the deadline for the filing of their brief was particularly short notice.

[ 42 ] This is one factor that this Court must take into account when deciding whether to exercise its discretion to grant the adjournment. Is the adjournment necessary to permit amendments to deal with the Defendants’ Applications to Strike briefs? [ 43 ] Plaintiffs’ counsel argues that the Plaintiffs require the adjournment to amend their pleadings concerning their “livelihood” claim and to respond to the Defendants’ filed briefs.

He suggested that the amendments would reduce the complexity of the application by 75%. [ 44 ] The Plaintiffs have now filed those amendments by way of the Further Amended Statement of Claim, along with a Better and Updated Particulars in Reply to Her Majesty the Queen in Right of the Province of Alberta’s Demand for Particulars of the Amended Statement of Claim and Better and Updated Particulars in Reply to the Attorney General of Canada’s Demand for Particulars of the Statement of Claim. [ 45 ] The amendments removed the following from paragraph 9 of the statement of claim: ... and to sell and trade for livelihood purposes with other Tribes, settlers, the Hudson’s Bay Company and others... [ 46 ] The following phrase was added to the beginning of paragraph 9: “As part of their usual practices carried out...” [ 47 ] The amendments further deleted the following from the prayer for relief: a.1) a declaration that the Plaintiffs have a constitutional right within the meaning of s. 35 of the Constitution Act, 1982 , pursuant to the Treaty and/or the NRTA, to hunt and trap certain Wildlife species and to sell and trade for livelihood purposes; a.2) a declaration that the Plaintiffs have a constitutional right within the meaning of s. 35 of the Constitution Act , pursuant to the Treaty and/or the NRTA, to fish certain Wildlife species to sell and trade for livelihood purposes; [ 48 ] Did the removal of the “livelihood” claim reduce the complexity of the Applications to Strike?

This Court reviewed the Defendants’ filed briefs and can summarize their arguments as follows. Canada argues in its brief that: 1. The action is too broad, vague and general, making it unmanageable and an abuse of process; the claim consists of allegations about the authorization and cumulative environmental effects of over 19,000 developments involving 321 different proponents. 2. The claim is an improper attack on administrative decisions relating to these developments and the Plaintiffs should have properly brought them as judicial review applications. 3.

The developments are spread over a large geographic territory extending into areas covered by not just Treaty 6, but Treaties 8 and 10 as well. 4. The developments were authorized over an unknown period of time, but date back to at least 12 years before the Plaintiffs filed the claim.

5. The validity of these authorizations is a collateral attack that abuses the process of the court. It would be impossible to adjudicatehow the cumulative effects of the developments ought to have been managed without understanding what was authorized, by whom,when, how each contributed to any alleged degradation of the environment, and how they were managed individually as well ascollectively. Treating all the authorizations as forming one action is not possible given that the processes and enabling legislation foreach development are fact-specific and unique. 6.

Numerous individuals, including the 321 proponents, would be entitled to participate in the proceedings. 7. Environmental assessments under Canadian Environmental Assessment Act, S.C. 1992, c. 37 (“CEAA”), the sole identified typeof federal authorization, already require consideration of cumulative effects, defined as environmental effects "that are likely to resultfrom the project in combination with other projects or activities that have been or will be carried out." The fact that statutorily mandatedprocesses under the CEAA were conducted does not disclose a cause of action against Canada.. 8.

To consider whether Canada had a duty to consult a First Nation, there must first be federal Crown conduct that could adverselyaffect a treaty right. Without knowing what Crown conduct is alleged, one cannot determine whether a duty existed. 9. The claim broadly alleges a failure to manage the environment, but raises no constitutional challenge to legislation. Portions ofthe claim appear to imply a duty to enact particular legislation or regulations, but the claim does not state this.

The claim does notchallenge the constitutionality or applicability of legislation or regulations that deal with environmental matters or management ofdevelopment. 10. The Federal Court of Canada has exclusive jurisdiction to deal with the validity of decisions made by federal boards. [49] Canada’s brief also raises concerns about the evidence that the Plaintiffs filed in support of their application. [50] Alberta’s brief argues that: 1.

The claim is too broad and vague, as it challenges every Alberta authorization with respect to lands within or adjacent to theclaimed traditional territory, spanning three treaty areas, and implicating all oil and gas, forestry, mining and resources activities,infrastructure activities, many Crown ministries, innumerable decisions government officials, public authorities, and independent arm’slength agencies, boards and tribunals made, and all existing Crown leases, permits, agreements, contracts and licenses. 2.

The administrative law challenges must be brought in the appropriate forum and within the applicable time limits, and futureunknown administrative action or potential infringements cannot be addressed in a claim. 3. Alberta’s policies on environmental protection and resource management are legislative in nature and not amenable to review inthe absence of a challenge to the constitutionality of legislation. 4. The Energy Resources Conservation Board is already required to consider the temporal and cumulative effects of developments.The Energy Resources Conservation Act, R.S.A. 2000, c.

E-10, provides a comprehensive mechanism in which interested personsaffected by orders may apply for standing and review. Suing an opposing party in an administrative proceeding for the effect of an“incorrect” decision, especially when that decision was not challenged through the appropriate channels of review, would bring theadministration of justice into disrepute. 5. Any allegation that the breach of a commercial right to fish, hunt and trap other than for food is not viable, as such right wasextinguished by the Natural Resources Transfer Agreement, as affirmed by binding precedent: R. v.

Horseman, (SCC),[1990] 1 S.C.R. 901 at para. 67, R. v. Badger, (SCC), [1996] 1 S.C.R. 771 at paras. 46 and 72, R. v. Gladue, 1995

ABCA 483 , [1996] 1 C.N.L.R. 153 (Alta.C.A.), leave denied [1996] S.C.C.A. No. 52, R. v. Jacko, 2000 ABCA 142, [2000]A.J. No. 565, leave denied [2000] S.C.C.A. No. 432. 6. Although the Plaintiffs deny they are attacking the granting of authorizations or the governing legislation, they seek a declarationthat the Defendants have a duty to address revoking authorizations or limiting and managing their effects. 7. Many of the declarations sought amount to claims for injunctive relief against the Crown.

Section 17 of the Proceedings Againstthe Crown Act, R.S.A. 2000, c. P-25 clearly states that the court cannot enjoin the provincial Crown. [51] Alberta also raises concerns about the evidence that the Plaintiffs seek to have admitted. [52] Alberta and Canada have already addressed the “livelihood” issue in their briefs. As one can see, the “livelihood” claim isonly one of a large number of issues that Alberta and Canada identify in their Applications to Strike.

The other issues that they identify intheir briefs form a significant portion of their submissions. [53] In this Court’s view, the “livelihood” question does not constitute anything close to 75% of the Applications to Strike.Accordingly, this Court rejects the Plaintiffs submission that an adjournment is necessary for them to amend the pleadings for thepurposes of the Applications to Strike. Applicable principles [54] There are several factors that suggest that this Court should not grant the adjournment: (

a) The Applicants’ explanation for not being ready to proceed with the Applications to Strike [55] The Plaintiffs argue that they were not ready to proceed with the Applications to Strike because they needed time to respondto the Defendants’ briefs. In particular, they needed time to amend their claim. As well, they cannot pay their present counsel and the ProBono firm requires time to assist Woodco in its preparation for the Applications to Strike. [56] This Court has already dismissed the first explanation.

As to the second, the Plaintiffs and Woodco would, or should, haveknown the expense involved in this litigation and must surely have known that this was an issue much earlier than 12 days before theywere required to file their brief. (

b) The length of the adjournment and the disruption of the Court’s

schedule [57] The Plaintiffs have not given this Court a date on which they are prepared to have their briefs filed and a date for theApplications to Strike hearing. Their only evidence is that the Pro Bono firm will not be available to work on this matter until March of2011. There is no indication of how long Woodco will require to prepare the Plaintiffs’ briefs. This Court had set down a week for theApplications to Strike. Further days will need to be scheduled, although a full week might not be necessary, given the removal of the“livelihood” claim. Given this Court’s

schedule for the Spring term, it might not be possible to

schedule this matter until the Fall of 2011. (

c) The importance of effectively enforcing previous court orders and the history of the proceedings [58] The Defendants filed their notice of motions on May 29, 2009 and June 1, 2009. This Court set deadlines for filing affidavitevidence, and the Applications to Strike were set for March 15-19, 2010. The parties agreed to a number of extensions of the Plaintiffs’

filing deadlines and this Court further extended that time. In December 2009, the Plaintiffs indicated that they could meet a March 8, 2010 deadline for filing their brief, but at the January 21, 2010 case management meeting the parties decided that the Applications to Strike could not be heard in March and the parties used March dates for cross-examinations on affidavits. [ 59 ] The Applications to Strike were set to be heard December 6-10, 2010. The Plaintiffs had indicated earlier that they would be able to file their brief by March 8, 2010.

During the adjournment application on October 27, 2010, the Plaintiffs advised this Court that they have only commenced some preliminary research, and by March 2011, they will only have begun to prepare the Plaintiffs’brief, with the assistance the Pro Bono firm. This Court is extremely troubled by Woodco’s lack of candour and the representations that Woodco made to it. [ 60 ] This history of delays and extensions weighs against granting a further adjournment. (

d) Whether there is a realistic expectation that the adjournment will accomplish its stated purpose [ 61 ] Woodco has advised this Court that the Pro Bono firm has indicated that it is prepared to work pro bono on the Applications to Strike by providing research and brief writing. Woodco, however, will continue to be the counsel of record and will be the lawyers making submissions during the Applications to Strike. [ 62 ] There is no evidence before this Court that the Plaintiffs’ funding problem will be resolved and that Woodco will appear and make submissions during the Applications to Strike if it is not paid.

If the rationale for seeking the adjournment is that the Plaintiffs cannot pay their lawyers, then the fact that some portion of the work will be done pro bono by the Pro Bono firm does not realistically address whether the Plaintiffs will be able to proceed with the application itself. [ 63 ] This factor weighs against granting a further adjournment. [ 64 ] On the other hand there are some factors that favour this Court granting an adjournment: (

a) There should be a just determination of the real matters in issue [ 65 ] This is a complex and multifaceted law suit, and it is important that there be a determination on the issues that the Plaintiffs raise in their statement of claim. This would be done preliminarily during the

Summary Judgment Applications. Woodco argues that if this Court does not grant the adjournment, the Plaintiffs will be “chased from the judgment seat.” [ 66 ] This Court finds that it would be unfortunate for the Plaintiffs to be denied the opportunity to argue their case on the merits only because of a lack of funds. This is not to suggest that a Plaintiffs have an absolute right to delay litigation because they cannot afford to continue, but it is a consideration. Any prejudice to the Defendants can be, and will be, dealt with in costs. (

b) The Plaintiffs should not have to bear the consequences of their lawyers’ failures [ 67 ] This Court finds that Woodco failed adequately to deal with the timeliness of the adjournment application and to address questions of financing. Based on the cross-examination on Mr. Whitford’s affidavit, it seems that Mr. Woodward has been an active participant in seeking out the pro bono law firm or financing for the litigation, having gone to England with the chief of Beaver Lake First Nation. Mr. Woodward knew much earlier than October 2010, that there were serious financial concerns.

Furthermore, it had been apparent for some time that the Plaintiffs would be seeking to make amendments to their statement of claim. [ 68 ] The question then becomes whether the Plaintiffs should have to bear the consequences of their lawyers’ actions, or lack of action.

(

c) A deliberate delay tactic [ 69 ] There is no evidence that the Plaintiffs are deliberately delaying the litigation as a tactic. In fact, Mr. Whitford’s affidavit notes that delay in the main action will increase the impact on the fish and wildlife in Beaver Lake Cree Nation’s traditional territory. V. Conclusion [ 70 ] This Court is extremely troubled by the approach Woodco has taken with respect to this litigation. The Defendants and this Court have spent a considerable amount of time attempting to move this litigation forward and setting realistic schedules for the parties to meet.

As well, the Defendants and this Court have spent considerable time preparing for the Applications to Strike, not only on the basis that they would be proceeding at the scheduled time, but that they would proceed on the pleadings, as filed. [ 71 ] The Plaintiffs seek an adjournment, not on the basis that there has been a change in the law or a change in the approach they want to take, but on the basis of a lack of finances.

While this Court and the Defendants might have been sympathetic to the Plaintiffs’ financial situation had Woodco been forthright from the outset, this Court, and likely the Defendants, have little sympathy when Woodco raises this near to the eve of the hearing. [ 72 ] The issues that the Plaintiffs raise in their pleadings are important on their face. A court should hear argument on the merits to determine whether it will grant the Applications to Strike. Whether the Plaintiffs will be in a position to raise sufficient funds that will allow Woodco to argue this case remains to be seen.

This Court also has a concern with the delay attendant on this matter because of court scheduling. [ 73 ] Despite this, balancing the Plaintiffs’ interests, whose case could be irreparably damaged by refusing the adjournment, with the Defendants’ interest, which can be addressed by costs, along with the Court’s interest in not only efficient, but also effective, justice, this Court concludes that it should grant an adjournment. [ 74 ] The parties will

schedule a further case management meeting in which to

schedule the timing of the filing of the Plaintiffs’ briefs and the Defendants’ reply briefs. As well, the parties will

schedule a hearing at which this Court will deal with the issue of costs. [ 75 ] Any scheduling of the Applications to Strike will, henceforth, be peremptory on the Plaintiffs; this Court will grant no further adjournments for any reason. Heard on the 27 th day October, 2010, 8 th day of November, 2010, and the 10 th day of December 2010. Dated at Edmonton, Alberta this 28 th day of January, 2011.

K.D. Yamauchi J.C.Q.B.A. Appearances: Kathleen Kohlman and Sukhi Sidhu for The Attorney General of Canada Everett Bunnell (Macleod Dixon) and Donald Kruk for Her Majesty the Queen in Right of Alberta JackWoodward, Pat Hutchings, Drew Mildon, and Sean Nixon Woodward & Company for the Plaintiffs [1] See also Penton v. Metis Nation of Alberta Assn. (1995), (AB KB), 171 A.R. 140, 29 Alta. L.R. (3d) 223 atpara. 37 (QB) ; Edward v. Niagara Neighbourhood Housing Cooperative Inc. (2006), (ON SCDC), 210 O.A.C. 110, 23 C.B.R. (5th) 71 at paras. 33-35; Jovanovic v.

Hamilton-Wentworth Regional Police Services Board, [2009] O.J. No. 5384, 257O.A.C. 3 at para. 12 (Ont. Sup. Ct. of Jus.); York Condominium Corp. No. 98 v. Jeffers, [2008] O.J. No. 2646, 168 A.C.W.S. (3d) 297at paras. 5-6.