A Claim Delayed (in Alberta) is a Claim Denied. Period.

by reconciliationproject

The case is Callihoo v Canada (http://canlii.ca/t/gjrhg). It’s hard for me to tell whether this is a test case or just an example of the Crown attempting to clear out some possibly vexatious litigation. It smells to me like a test case.

The heart of this very short decision is an attempt by Canada to invoke Rule 4.33 of the Alberta Rules of Civil Procedure. The rule more or less states that an action may be struck if there are no significant developments in the litigation in 3 years (The Court helpfully reproduces the rule at paragraph 20). I’m no expert in civil procedure – I know Ontario, for example, has a rule about delay, but that has substantially different criteria (meaning it’s a totally different rule in Ontario) than Alberta Rule 4.33.

First Nations litigation is often long, expensive and complex. I would expect that in most (in fact, in almost all) cases both First Nations and the Crown would consent to delays for any number of reasons. I mean, if I was asked for such consent, I would generally consider it professional courtesy to provide the consent. Unless I had reason (and pretty good reason, with some kind of evidence) for believing the delay was being requested in bad faith. The reason is I wouldn’t want to look like a jerk in front of the court for denying my colleagues the opportunity to put forward their best case. That reason, by the way, holds no matter which side of the aisle one is sitting on. And just to be clear, 4.33(1)(a) expressly allows counsel to consent to avoid a ‘dismissal for long delay’.

So when I saw this case, I had to assume there was some pretty egregious conduct – that is to say, some pretty extensive delay – which led to this motion. The record on First Nations actions (or lack thereof) to advance this case can be found at paragraph 8. There are two substantial points here.

First, the Court found that issuance of a Notice of Constitutional Question (NCQ) “is similar to a “housekeeping activity”” (para 34), meaning it does not significantly advance the action. Something for First Nations counsel pursuing cases in Alberta to keep in mind for the future.

Second, it seems clear that the First Nation changed counsel during the relevant time period. I suspect this isn’t uncommon and its really worth it for First Nations to consider how litigation is going to be managed if their counsel withdraw (or are fired, its unclear what happened here). The record notes that Counsel for the First Nation withdrew in December 2011. The next action noted in the record is one undertaken by one of the Plaintiffs themselves. This is important itself for two reasons.

First, change in counsel is one of those situations where one would reasonably assume that a delay is warranted (and grant consent). New counsel must familiarize themselves with the file and with the client (including client expectations). In a complex case (most First Nations cases are complex), this can take quite a bit of time. I’m actually a little bit surprised Canada didn’t grant consent – though it may be nobody asked for it.

The second point follows from the first. There is no record offered which identifies notice that new counsel had been retained by the First Nation. In fact, the NCQ was filed by the plaintiff. In other words, it looks like we may have an ‘self-represented plaintiff’ issue here. Self-represented (sometimes referred to as unrepresented) plaintiffs should flag a number of issues for attorneys and courts. One can’t assume that self-represented plaintiffs are familiar with the rules of civil procedure, with the relevant precedents or with the nuances of how to prosecute an action, generally. Indeed, many jurisdictions have specific rules of professional conduct specific to dealing with unrepresented parties.

Those rules don’t always apply to litigation.

Here, it seems pretty plain that the plaintiff wasn’t terribly sophisticated – the Court noted he served his NCQ on the wrong party (on the province, even though the province had been excused from the action).

But it just appears to be a pretty sharp (as in ‘sharp practice’) maneuver to proceed with by invoking Rule 4.33. While it might seem unfair, the Court pretty clearly outlined the harsh application of this rule in other circumstances (at paras 22 and 23). After a quick analysis of the Honour of the Crown as it relates to litigation (a mercifully quick analysis of this point at para 37), the Court dismissed the action (with costs!). It would’ve been nice to have the Court reflect on the merits of proceeding against an unrepresented plaintiff.

Having said that, it does appear that counsel was retained to deal with this motion, so this appears to have been an issue only during the 3-year time limit mandated by the Rule. The apparent ability of the plaintiffs to muster counsel to fight this motion, but not to move the action forward may be the reason costs were awarded here (I think its still a little harsh).

As I said at the outset, this reeks of a test case. The facts are particularly tilted in favor of the Crown. The Crown was facing (during the relevant time period) an apparently unsophisticated plaintiff (since they served the wrong ‘Party’) and the available precedents on the Rule suggest that dismissal is mandatory.

I’d really be curious to see whether federal Crown counsel facing civil litigation in Alberta courts start denying consent for cases in abeyance. It wouldn’t surprise me either way. If dealing with federal Crown attorneys, I wouldn’t expect any latitude for new counsel moving onto a case. Callihoo represents a pretty powerful tool in the arsenal of Crown defendants, at least in Alberta (as well as in whatever other jurisdictions have a ‘drop dead’ rule, similar to Rule 4.33)