Gauchier v Cunningham, 2013 ABQB 493

Court of Queen ’ s Bench of Alberta Citation: Gauchier v Cunningham, 2013 ABQB 493 Date: 20130829 Docket: 1103 12719, 1103 15013 Registry: Edmonton

Between: 1103 12719 Joseph Iner Gauchier Applicant - and - John Kenneth Cunningham, also known as Kenny Cunningham Jr. Respondent And Between: 1103 15013 Joseph Iner Gauchier Applicant - and - Registrar, Metis Settlements Land Registry, Peavine Metis Settlement and Peavine Metis Settlement Council Respondents _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice M. David Gates _______________________________________________________

I. Nature of the Applications [ 1 ] The Applicant John Kenneth Cunningham (“Mr. Cunningham”), together with Barbara Cunningham, Lawrent Cunningham, Gordon Cunningham and Roger Cunningham (collectively “the Applicant Cunninghams”) apply for

summary judgment in two related actions brought by Joseph Iner Gauchier (“Mr. Gauchier”) in 2011. Mr. Gauchier’s applications are both set for hearing before me on September 20, 2013. [ 2 ] The Applicant Cunninghams ask the Court to direct the Registrar to verify any facts necessary and then to make a determination as to whether they, together with Ralph Cunningham, Ray Stuart and Lynn Noskey (collectively the “Affected Parties”) voluntarily registered as Indians under the Indian Act , RSC 1985, c I-5 after November 1, 1990, and to otherwise dismiss the Gauchier actions or stay them pending that determination.

The Applicant Cunninghams also seek an order extending the deadline imposed on them to file affidavits on the merits of the two actions, and an order for costs of their applications. [ 3 ] The Peavine Métis Settlement (“Peavine”) and the Peavine Métis Settlement Council (“Peavine Council”) support the

summary judgment application in the action involving them and also seek an extension of time within which to file affidavits in that action should the

summary judgment application not be successful. [ 4 ] The Applicant Cunninghams, Peavine and Peavine Council did not seek an adjournment of the

summary judgment applications pending my decision on their affidavit requests, being content to argue the

summary judgment motions on the basis of the affidavits and cross-examinations on the affidavits filed to date. [ 5 ] The

summary judgment applications and applications for an extension of time to file affidavits were heard by me as case management judge on June 18, 2013. On July 18, 2013, I dismissed the applications for

summary judgment and granted the applications for an extension of time to file affidavits. These are my reasons. II. Background [ 6 ] On August 9, 2011, Mr. Gauchier filed an originating application (Action No. 1103 12719) seeking an order declaring that Mr. Cunningham is disqualified from continuing to serve as a member of Peavine Council on the basis that he voluntarily registered under the Indian Act after November 1, 1990 (the “First Action”). [ 7 ] On September 22, 2011, Mr.

Gauchier filed a second originating application (Action No. 1103 15013) (“the Second Action”) naming the Registrar, Métis Settlements Land Registry (“ the Registrar”), Peavine and Peavine Council as Respondents and asking that this Court grant an order in the nature of mandamus to: 1. Compel the Registrar to: (

a) remove the Affected Parties (including the Applicant Cunninghams) from the Peavine membership list (the List); and (

b) confirm the Indian Act registration status of all members on the List and remove all those persons disqualified from membership on the basis of their Indian Act registration after November 1, 1990. 2. In the alternative, compel Peavine to (

a) issue notices of termination in regard to the Affected Parties and any others presently recorded on the List the Council or a

Councillor has reason to believe voluntarily registered under the Indian Act after November 1, 1990; and (

b) notify the Registrar to remove from the List those persons the Registrar confirms voluntarily registered under the Indian Act after November 1, 1990. (the “Second Action”) [ 8 ] On March 22, 2012, as case management judge, I ordered that: (

a) Mr. Gauchier was to serve any of the Affected Parties whose membership might be affected by the Second Action with notice of the application. Any person so served would have 30 days from the date of service to apply to the Court to be added as a party; (

b) The two actions are to be heard together as separate actions. Any application to strike portions of the affidavits filed by Mr. Gauchier in support of the two actions were to be filed by April 20, 2012 ; (

c) The Respondents would have 30 days following the date when the question of the content of the affidavits was resolved within which to cross-examine Mr. Gauchier on the affidavits. If the Respondents intended to file affidavits, they were to be filed and served within 30 days of the date when they began cross-examination of Mr. Gauchier on his affidavits; (

d) Any cross-examination of the Respondents on their affidavits was to take place within 30 days of the date the affidavits were served on Mr. Gauchier; (

e) If Mr. Gauchier intended to file a reply affidavit, it was to be filed within 30 days of the date he cross-examined the Respondents on their affidavits. If Mr. Gauchier filed a reply affidavit, the cross-examination on it was to take place within 30 days of the date he served the affidavit on the Respondents and the Respondents would have leave to apply to file additional evidence. [ 9 ] My order, filed on May 1, 2012, also addressed an issue of costs which is not relevant to the present application. [ 10 ] On May 2, 2012, Mr.

Gauchier filed an affidavit swearing that he had served Roger Cunningham, Lynn (Cunningham) Noskey, Ray (Stewart) Stuart, Gordon Cunningham and Ralph Cunningham with a copy of both of his applications and supporting affidavits. An affidavit of service of the originating notices and supporting affidavits on Lawrent Cunningham and Barbara Cunningham was also filed. There is no dispute that Mr. Cunningham received notice of and a copy of the supporting affidavit relating to the Second Action. [ 11 ] On May 3, 2012, an application was filed by the Applicant Cunninghams to be added as Respondents in the Second Action.

Their counsel concedes that an order was never taken out adding them as parties to either action (aside, of course, from Mr. Cunningham, who was already a named Respondent in the First Action). All involved proceeded as though the Applicant Cunninghams were parties to at least the Second Action, until Mr. Gauchier’s counsel raised the matter in his brief on the

summary judgment applications. In an effort to move matters along, I will render my decision on the

summary judgment and time extension applications on the understanding they do not deal with the status of the Applicant Cunninghams. If that issue cannot be dealt with by consent, it will be determined separately at a later date. Ralph Cummingham, Ray Stuart and Lynn Noskey did not ask to be added as parties to the Second Action. III.

Summary Judgment A. The Law

[12] Under Rule 7.3(1) of the Alberta Rules of Court, a party may apply to the Court for

summary judgment in respect of all or partof a claim on the ground there is no merit to a claim or part of it. The application must be supported by an affidavit in which thedeponent swears positively that the ground has been met or by other like evidence (Rule 7.3(2)), although a party applying can rely onlegal presumptions. If the application is successful, the Court may dismiss one or more claims in the action (Rule 7.3(3)). [13] In De Shazo v Nations Energy Co., 2005 ABCA 241 at para 17, 367 AR 267, the Alberta Court of Appeal set out the test forsummary dismissal: The test to be applied on a

summary judgment application is whether it is plain and obvious that the action cannot succeed. To justifydeciding the matter without a trial the pleadings and evidence on the motion must show that the claim has no reasonable prospect ofsuccess: Boudreault v. Barrett (1998), 68 Alta. L.R. (3d) 83, 1998 ABCA 232, at para 9.

Summary judgment should not be granted ifopposing affidavits clash on relevant facts: Wolfert v. Shuchuk, supra, at para. 10. The chambers judge should not assess the quality andweight of the evidence; that is a function reserved for a trial judge: Liu v. Tangirala, 2004 ABCA 171, para 2. [14] As noted by Marceau J in Kwan v Superfly Inc., 2011 ABQB 343 at para 20, 520 AR 234: Rule 7.3 operates in the same manner and follows the same legal principles as its precursor, Alberta Rules of Court, Alta. Reg. 390/1968,s. 159: Manufacturers Life Insurance Company v.

Executive Centre at Manulife Place Inc., 2011 ABQB 189 at para. 11; MraicheInvestment Corporation v. Paul, 2011 ABQB 164 at para. 11; Janvier v. 834474 Alberta Ltd., 2010 ABQB 800 at para. 21. [15]

Summary judgment is not available if there are genuine issues of fact to be resolved (Desoto Resources Ltd. v Encana Corp.,2011 ABCA 100, 513 AR 72). If the only issue is one of law and there is a proper factual foundation, it can be decided on a

summaryjudgment application (Warkentin v Klein, 2008 ABQB 33 at paras 21-22, 438 AR 169; Tottrup v Clearwater (Municipal District No.99, 2006 ABCA 380 at para 11, 401 AR 88. [16] When the application for

summary judgment is brought by a defendant or respondent, the only substantive relief availableother than an order for costs is to dismiss all or part of the action. B. Arguments of the Parties [17] The basis of the

summary judgment applications by the Applicant Cunninghams is that they and the other Respondents in thetwo actions have agreed to settle the actions on the basis that the Registrar should be ordered to verify any facts necessary and then makea determination as to whether the Affected Parties voluntarily registered as Indians under the Indian Act after November 1, 1990. Theysay that the actions should otherwise be dismissed. [18] They also contend there is no merit to Mr. Gauchier’s claim for an order directing the Registrar to remove them from the List.They submit that the relief sought by Mr.

Gauchier is not available to him as only the Registrar, not the Court, has the authority under s90(2) of the Métis Settlement Act, RSA 2000, c M-14 (MSA) to determine whether or not someone has voluntarily registered as an Indianafter November 1, 1990. They contend that mandamus cannot issue as the Registrar’s public legal duty to act, one of the requirements ofmandamus set out in Apotex Inc. v Canada (Attorney General), (1993) (FCA), 18 Admin LR (2d) 122 at para 55(Fed CA), aff’d (SCC), [1994] 3 SCR 1100, is triggered only if the Registrar receives a notice of termination.

Theypoint out that the Registrar has received no such termination notices. Further, they submit that the Supreme Court of Canada in Alberta(Aboriginal Affairs and Northern Development) v Cunningham, 2011 SCC 37, [2011] 2 SCR 670 (Peavine #4) did not order theRegistrar to strike the names from the List.

They take the position that Tottrup applies and I can and should decide the legal effect of theSupreme Court of Canada’s decision in Peavine #4. [19] The Applicant Cunninghams also argue that the power of the Registrar is discretionary and while the Court can order that heexercise his power and make a decision, it cannot fetter his discretion.

[ 20 ] Finally, the Applicant Cunninghams assert Mr. Gauchier does not come to the Court with clean hands. [ 21 ] As noted above, Peavine and Peavine Council support the

summary judgment application in the Second Action. [ 22 ] The previous Registrar, Lisa Chartrand, who was appointed in January 2008, filed an affidavit on October 26, 2012 deposing that since the Supreme Court of Canada’s decision in Peavine #4 , issued on July 21, 2011, new information had came to her attention that might impact the eligibility of the Affected Parties for membership in Peavine. She expresses the view that it is essential that she be given the opportunity to conduct a factual investigation regarding their membership status.

According to her evidence during cross- examination on her affidavit, the information that came to her attention pertained to when some or all of the Affected Parties applied to be registered as Indians under the Indian Act . [ 23 ] Mr. Gauchier submits that by seeking relief involving the Registrar, the Applicant Cunninghams are conceding his applications or part of them have merit. He says that while the Respondents may wish to settle the actions on the terms set out in their applications, he has not agreed to do so. In oral argument, counsel for Mr.

Gauchier seemed to suggest that I should not rule on the legal effect of the Supreme Court of Canada’s decision in Peavine #4 on this application. Nevertheless, he did go on to fully argue the point and failed to identify any additional argument that he might want to make at some point down the road. In the result, it was not clear what Mr. Gauchier’s position is in this regard. C.

Analysis [ 24 ] The Applicant Cunninghams advance their applications on the apparent basis that they, together with the Registrar, Peavine and Peavine Council, all have agreed the actions should be settled by having the Court order the Registrar to verify any facts necessary and then make a determination as to whether the Affected Parties voluntarily registered as Indians under the Indian Act after November 1, 1990. They have not, however, deposed that they are prepared to settle the actions on this basis. In any event, I agree with Mr.

Gauchier that wanting to settle the actions on terms of their own choosing is not a basis on which to grant

summary judgment. [ 25 ] The real issue to be addressed on the

summary judgment applications is whether it is plain and obvious there is no merit to Mr. Gauchier’s applications or part of those applications. The Applicant Cunninghams have not filed an affidavit swearing positively that there is no merit to the Second Action, nor has Mr. Cunningham done so in terms of the First Action. Ordinarily, that would be a sufficient ground for dismissal of the

summary judgment applications. However, to the extent the Applicant Cunninghams rely only on legal arguments and there is sufficient factual basis in the record to decide those legal arguments, I will proceed to do so. [ 26 ] The Applicant Cunninghams assert that only the Registrar has the authority under s 90(2) of the MSA to determine whether or not someone has voluntarily registered as an Indian after November 1, 1990 and to strike them from the List if they have. They maintain that the Registrar’s duty to act has not yet been triggered.

They also maintain the decision of the Registrar is discretionary and, therefore, mandamus cannot issue. [ 27 ] Section 96(1) of the MSA specifies that the Minister must establish the List by virtue of s 96(3). The Minister must keep the List up to date but may, by agreement with the General Council, delegate that responsibility. Section 97(3) provides that a name must be removed from the List when a settlement member loses membership in a settlement in accordance with the Act (emphasis added). [ 28 ] Responsibility to maintain the List has been delegated to the Registrar.

In her affidavit, former Registrar Lisa Chartrand acknowledged she had been delegated authority by the Minister under the MSA to maintain the List. According to his submissions, the current Interim Registrar agrees with that fact. I note that in Alberta (Minister of International and Intergovernmental Relations) v Peavine Métis Serttlement , 2001 ABQB 165 at para 17 ( Peavine #1 ), Nash J also concluded that the Minister had delegated to the Registrar responsibility under the MSA to verify registration, receive information and remove names. [ 29 ] Pursuant to s 90(1)(

a) of the MSA , unless a General Council Policy provides otherwise, a settlement member terminates membership in a settlement if that person voluntarily becomes registered as an Indian under the Indian Act (Canada). Section 90(2) says that on receipt from the settlement council of notice of a termination of membership under subsection (1), and after any verification of the facts that is considered necessary, the Minister must remove the name of the person concerned from the List.

[ 30 ] The Registrar, by delegation from the Minister, has a public legal duty to keep the List up to date and to remove from the List the name of anyone whose membership in a settlement has terminated. As Nash J found in Peavine # 1 at para 19, these duties are phrased in mandatory terms. They are not discretionary.

As a result, the argument of the Applicant Cunninghams that these are discretionary decisions rather than statutory duties on the part of the Registrar and, accordingly, not subject to an order for mandamus, fails. [ 31 ] In the event an administrative official does not comply with a public legal duty, the Court, in its supervisory role, is entitled to require that the official do so (D.P. Jones and A.S. de Villars, Principles of Administrative Law , 3d ed, (Toronto: Carswell, 1999), at pp 569-572).

That is precisely what Nash J did in Peavine #1 . [ 32 ] Whether the Registrar received notices of termination with respect to the Affected Parties, including the Applicant Cunninghams, and whether they voluntarily became registered as Indians under the Indian Act after November 1, 1990, thereby invoking the Registrar’s duty to strike their names from the List, are factual issues which in my view are best left to be determined when Mr.

Gauchier’s applications are heard. [ 33 ] The Applicant Cunninghams take the position the Registrar is not under a duty to act as current notices of termination have not been submitted with respect to the Affected Parties. They rely on the affidavit of Ms. Chartrand, who deposed that she had never received notices of termination for them. However, she also stated she had only been the Registrar since January 7, 2008. [ 34 ] Mr.

Gauchier, on the other hand, relies on the original notices of termination received by the Registrar in August 1999, as more fully described in the next paragraph. [ 35 ] In Peavine #1 , Nash J indicated at para 8 that: “[o]n June 23rd, 1999 the Applicant [Peavine] wrote to the Associate Minister of Aboriginal Affairs, The Honourable Pearl Calahasen, enclosing a list of names and asked her, pursuant to s. 96(3) of the MSA , to investigate whether anyone on the list had registered as an Indian under the Indian Act .” Nash J then stated at para 9: On August 16th, 1999 the Registrar received a letter from the Peavine Métis Settlement dated August 16th, 1999, enclosing 22 Notices of Termination of Settlement Membership and requesting that the Registrar terminate the memberships of the named persons.

The grounds for the Notices of Termination of Membership were that the Peavine Métis Settlement believed that such persons had automatically terminated their membership in the Peavine Métis Settlement by voluntarily becoming registered as Indians under the Indian Act (Canada) after the date of coming into force of the MSA . [ 36 ] Finally, Nash J noted at para 12 that Peavine had filed an originating notice returnable November 27th, 2000 seeking an order in the nature of mandamus directing the Minister to prepare an updated settlement members list. [ 37 ] The result of that application was that Nash J issued an order directing the Registrar to obtain Department of Indian and Northern Development (DIAND) registration information to "facilitate the efficient rectification of a matter which has been improperly stalled for too long," and to update the settlement membership list by March 23, 2001.

The Minister and Peavine were parties to Peavine #1 . No appeal was taken from Nash J’s decision. [ 38 ] Mr. Gauchier has deposed that he was a member of Peavine Council at the time of Peavine #1 and that as a result of the order granted by Nash J in that case, the names of the Affected Parties, including the Applicant Cunninghams, were removed from the List.

This is confirmed in Peavine Métis Settlement v Alberta (Minister of Aboriginal Affairs and Northern Development) , 2007 ABQB 517 , 424 AR 271( Peavine #2 ), which involved a Charter challenge to ss 75 and 90 of the MSA brought by Peavine and the Affected Parties. The Minister and the Registrar were named as respondents in that matter. Shelley J concluded ( at para 33) that the Registrar had obtained the necessary information from DIAND, determined that the Affected Parties had received Indian status after November 1, 1990, and had removed them from the List on May 9, 2001.

At para 47, she noted that the Affected parties did not dispute that they were registered as Indians under the Indian Act after November 1, 1990, although a number of them had applied before that date. [ 39 ] It is not clear on the record before me when the Applicant Cunninghams first learned the Peavine Council was seeking to or had been successful in having their names struck from the List. Clearly, it was before they filed their Charter challenge. In any event, it

appears they never commenced an action for abuse of public office against Peavine Council for its alleged selective targeting of them and the other Affected Parties for removal from the List. Nor did they apply for judicial review of the Registrar’s decision to strike their names from the List. [ 40 ] Shelley J held, at para 207, that the Affected Parties were precluded from arguing that the original decision to strike them from the List was based on a request that was made in bad faith as they had chosen not to challenge that decision.

She dismissed the Charter challenge. [ 41 ] On appeal from Shelley J’s decision, the Alberta Court of Appeal in Cunningham v Alberta (Minister of Aboriginal Affairs and Northern Development , 2009 ABCA 239 , 457 AR 297 ( Peavine #3 ) held that ss 75 and 90 of the MSA were unconstitutional.

The Affected Parties were successful in their request for an order in the nature of mandamus under s 24(1) of the Charter compelling the Registrar to restore their names to the List retroactive to the date their names were removed from the List. [ 42 ] On further appeal, the Supreme Court of Canada in Peavine #4 set aside the decision of the Court of Appeal and affirmed the decision of Shelley J. The court stated at para 25 that: The claimants [the Affected Parties], members of the Métis settlement of Peavine, opted to register as status Indians in order to obtain medical benefits under the Indian Act .

They did so outside the limited window provided by the Transitional Membership Regulation . As a result, the Registrar of the Métis Settlements Land Registry revoked their membership in the settlement of Peavine, under s. 90 of MSA . [ 43 ] The Court of Appeal’s order compelling the Registrar to restore the names of the Affected Parties to the List was made pursuant to s 24(2) of the Charter as a remedy for what the Court of Appeal found was an infringement of the rights of the Affected Parties.

As the Supreme Court of Canada found there was no Charter breach, the foundation for reinstatement of the names of the Affected Parties to the List no longer exists. In my view, the Supreme Court of Canada’s decision in Peavine #4 can only reasonably be interpreted as setting aside the decision of the Court of Appeal in Peavine #3 in its entirety. As such, the effect of the Supreme Court of Canada’s decision was to restore the status quo as it existed immediately following the decision of Shelley J in Peavine #2 .

This would include the original notices of termination relating to the Affected Parties. [ 44 ] At a minimum, Mr. Gauchier has offered a prima facie case that the names of the Affected Parties should be struck from the List. [ 45 ] However, Ms. Chartrand deposed in these proceedings that since the Supreme Court of Canada’s decision in Peavine #4 , factual information had come to her attention about a number of the Affected Parties which might impact a determination of their eligibility for membership under the MSA .

In cross-examination on her affidavit, she testified that this information included the issue of the date when some or all of the Affected Parties applied to become Indians under the Indian Act and when they were actually registered as such. Given Shelley J’s comment in Peavine #2 at para 47 that a number of the Affected Parties had applied for registration before November 1, 1990, it is unlikely that this information was only discovered, or became discoverable, after the Supreme Court of Canada’s decision in Peavine #4 . However, that is best determined at the hearing of Mr.

Gauchier’s application for an order in the nature of mandamus . [ 46 ] Mr. Gauchier asks in the Second Action that the Court compel the Registrar to confirm Indian Act Registry registration status and registration date for every other person recorded on the List and to remove those persons disqualified from membership because they voluntarily became registered as Indians after November 1, 1990. There is no evidence that the Peavine Council has sent the Registrar notices of termination with respect to all other members shown on the List. However, in her cross-examination on affidavit, Ms.

Chartrand testified that since the Supreme Court of Canada’s decision in Peavine #4 , she had received notices of termination from one or more Métis Settlement councils and as a result had removed some names and not others from the Settlement membership lists. She did not specify if any of those notices were issued by Peavine. One of the facts she investigated after receiving notices of termination was when the individual applied for Indian status.

I take it from her cross-examination that she may not have struck from the membership lists the names of anyone who applied for Indian status prior to the cutoff date but who did not become registered as an Indian until after that date.

[ 47 ] Attached as an appendix to Mr.

Gauchier’s affidavit in support of his application in the Second Action is a copy of a letter his counsel sent on August 26, 2011 to Peavine demanding that it issue notices of termination to the Registrar regarding anyone shown on the List that Peavine has reason to believe registered under the Indian Act after November 1, 1990. [ 48 ] The issue of whether the Registrar’s duty to act has been invoked in regard to anyone other than the Affected Parties is a factual one and, as noted above, the Applicant Cunninghams have not filed an affidavit in which one or more of them positively swear that there is no merit to the Second Action or part of it, or other like evidence.

In my view, this issue is best left to be decided on the mandamus application. [ 49 ] The Applicant Cunninghams argue that mandamus cannot or should not issue due to the equities of the situation and as Mr.

Gauchier does not come to the Court with clean hands. [ 50 ] I note that in Peavine #2 at paras 48 and 210 , Shelley J commented: In my view, if the Applicants [the Affected Parties, including the Applicant Cunninghams] took issue with the request made by the Former Peavine Council, which was the foundation for Nash J.'s decision and the Registrar's action in removing the individual Applicants from the Peavine membership list, judicial review of that action should have been sought or an appeal of Nash J.'s decision should have been taken.

The Applicants are now well out of time for doing so and therefore are precluded from arguing that the request of the Former Peavine Council was made in bad faith. . . . In any event, even if the Applicants could have argued bad faith on the part of the Former Peavine Council, I am not convinced that bad faith would have affected the original decision of the Registrar to strike the individual Applicants from the settlement's membership list. As determined by Nash J., the Registrar was acting under a mandatory duty at that time, not a discretionary one.

The Applicants do not contend that he was acting in bad faith. While the Former Peavine Council may have selectively targeted the individual Applicants for removal, that does not mean that they should not have been removed from the membership list. [ 51 ] The Supreme Court of Canada in Peavine #4 also recognized (at para 26 ) that: Underlying this litigation is the suggestion that the manner in which the Cunninghams' registration was revoked was procedurally unfair.

The list that the Peavine Council submitted to the Registrar of the Métis Settlements Land Registry for revocation of membership did not include all of the members who had obtained Indian status, but only the members of the Cunningham family. Following related proceedings ( Alberta (Minister of International and Intergovernmental Relations) v. Peavine Métis Settlement , 2001 ABQB 165 , [2001] 3 C.N.L.R. 1), the Registrar removed the claimants from the Peavine membership list on May 10, 2001.

Though bad faith and improper motivations were alleged against the then Council, no judicial review or other action was commenced on that basis. Accordingly, the matter of how the revocation proceeded is not before this Court. [ 52 ] The equities argument of the Applicant Cunninghams and Peavine raises a factual issue which they did not canvas during the

summary judgment application. In fact, they have applied for an extension of the time within which to file affidavits to address the equities of the matter. [ 53 ] This application was brought by the Applicant Cunninghams. As such, they have the onus of proof. Under all of the circumstances, I cannot find they have shown Mr. Gauchier’s applications are without merit and bound to fail.

Summary judgment is, accordingly, denied. IV. Extension of Time to File Affidavits A. Background

[ 54 ] As noted above, in my March 22, 2012 case management decision, I ordered that if the Respondents intended to file affidavits, they be filed and served within 30 days of the date when they began cross-examination of Mr. Gauchier on his affidavits. I set other time deadlines as well. [ 55 ] On May 3, 2012, Peavine, the Registrar and Mr. Cunningham applied in the Gauchier actions to strike portions of Mr. Gauchier’s affidavits. On August 9, 2012, I struck portions of the affidavits and granted Mr. Gauchier 30 days in which to file new affidavits. On August 31, 2012, he filed new affidavits.

On September 28, 2012, he was cross-examined by Peavine. On October 26, 2012, the Registrar filed an affidavit in the Second Action. On January 11, 2013, Mr. Gauchier cross-examined the Registrar. [ 56 ] Mr. Cunningham (and the other Applicant Cunninghams), Peavine and Peavine Council did not comply with the filing date for their affidavits. They now ask for a time extension within which to file affidavits. B. Arguments of the Parties [ 57 ] The Applicant Cunninghams submit they were attempting to resolve the actions in accordance with the terms of the orders they sought in the

summary judgment applications and that was in part an attempt to avoid the costs associated with the filing of affidavits and attending on cross-examinations on those affidavits. Peavine and Peavine Council take a similar position. They do not assert there was any stand still agreement with Mr. Gauchier. [ 58 ] They argue that if strict deadlines are imposed on them to file any affidavit evidence on which they intend to rely, Mr. Gauchier’s applications can still be heard on the scheduled date of September 20, 2013.

In any event, they submit that allowing them an extension of time within which to file affidavits will not cause any prejudice that cannot be compensated in costs. [ 59 ] Mr. Gauchier argues that the Respondents should not be given more time within which to file affidavits. He does not, however, point to any specific prejudice he will suffer if I allow this application, aside from the possibility of losing the date scheduling for hearing of his applications. He notes that Peavine Council elections are in October. C.

Decision [ 60 ] The Applicant Cunninghams, Peavine and Peavine simply chose not to comply with the filing deadline which I had ordered. However, Mr. Gauchier and the other parties have not shown they will be prejudiced if I grant the orders for an extension of time to file affidavits, giving very short deadlines within which the Applicant Cunninghams, Peavine and Peavine Council may do so.

To the extent there is any such prejudice, it can be addressed in a costs award. [ 61 ] I am prepared to grant the Applicant Cunninghams, Peavine and Peavine Council an extension until July 31, 2013 within which to file and serve their affidavits. Cross-examination is to be completed by August 16, 2013. Should Mr. Gauchier wish to file an affidavit in response, it is to be filed and served by August 23, 2013. Any cross-examination on Mr. Gauchier’s response affidavit is to be completed by September 6, 2013. Mr.

Gauchier’s written brief and authorities to be relied on relative to his substantive applications are to be filed by September 9, 2013. All of the Respondents are to file their written briefs and any authorities to be relied on by September 13, 2013. V. Costs [ 62 ] Mr. Gauchier is to have his costs of the

summary judgment applications and applications for an extension of time within which to file affidavits.

Heard on the 18 th day of June, 2013. Dated at the City of Edmonton, Alberta this 28 th day of August, 2013. M. David Gates J.C.Q.B.A. Appearances: Shawn Beaver Beaver Leebody Frank & Associates for the Applicant, Mr. Gauchier Ryan Martin McLennan Ross LLP for the Respondent, Mr. Cunningham Sandeep Dhir Field LLP for the Respondents, Peavine Metis Settlement & Peavine Metis Settlement Council Robert Normey Alberta Justice for the Respondent, Registrar & Metis Settlements Land Registry