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CIVIL PROCEDURE - Third party procedure - Availability

Wednesday, June 06, 2018 @ 8:27 AM  


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Appeal by the Alberta provincial Crown from the dismissal of its appeal from a prothonotary's decision adding it as a third party in an action by the Kainaiwa Nation against the federal Crown. In 1999, the plaintiff commenced an action against Canada and Alberta alleging breaches of various historical trust and fiduciary obligations. The plaintiff alleged it did not relinquish title to Treaty No. 7 territories and challenged the transfer of land and rights in resources from Canada to Alberta. In 2001, a Prothonotary struck the claim against Alberta on the basis the Federal Court lacked jurisdiction to hear the claim against it. For some time thereafter, the litigation was held in abeyance due to a parallel claim in the Alberta Court of Queen's Bench. In 2012, Canada's request to stay the Federal Court action was refused. In 2013, Canada filed a defence with a motion for leave to commence its proposed third party claim against Alberta for contribution and indemnity. In 2015, a prothonotary granted Canada's motion. The prothonotary found that it was not plain and obvious that the Federal Court did not have jurisdiction over the third party claim pursuant to s. 19 of the Federal Courts Act or the jurisprudence. The prothonotary was satisfied that the delay had been explained by Canada and that there was no substantive prejudice to Alberta. She was satisfied that Canada had demonstrated a continuing intention to pursue a third party claim. Alberta's appeal from the decision was dismissed. The Federal Court judge found that Alberta had not established a reviewable error. Alberta appealed the decision arguing that the Federal Court did not have jurisdiction over it as a third party, the third party claim or the action and that Canada should not be allowed to file a third party claim after lengthy delays since Alberta had been removed as a party from the action.

HELD: Appeal dismissed. It was not plain and obvious that the Federal Court did not have jurisdiction over the controversy between Canada and Alberta on the basis of s. 19 of the Federal Courts Act. Canada always had an intention to seek contribution and indemnity from Alberta. Canada had an arguable case on the merits. Given that the matter involved historical evidence, the delay of 12 years was not significant. In addition, considering the importance of the rights claimed in the action and the plaintiffs' allegations, Alberta ought to have known, since the filing of the action, that Canada would seek contribution or indemnity. As a result, Alberta suffered no substantial prejudice. Furthermore, it was clearly in the interest of justice that an extension be granted.

Kainaiwa Nation (Blood Tribe) v. Canada, [2018] F.C.J. No. 454, Federal Court of Appeal, J. Gauthier, D.G. Near and Y. de Montigny JJ.A., April 27, 2018. Digest No. TLD-June42018007