The Alberta Court of Queen’s Bench allowed an application by Canada to strike out an action brought by descendants of a former Indian Band on the basis that more than three years have passed without a significant advance in the proceeding.

The underlying action involves an assertion of rights by descendants of the former Michel Indian Band No. 472. The action had been summarily dismissed against Alberta in 2006 (2006 ABQB 1). Canada filed an amended defence in May 2008. Following that step, “very little” happened in this proceeding until Canada filed a motion under Rule 4.33 in March 2014 to dismiss the action for delay. This rule, known as the “drop dead rule” in Alberta, came into effect in November 2013 and provides that the Court must dismiss an action if three or more years have passed “without a significant advance in the action” unless an exception applies.

The Court held that the last significant step taken in this proceeding occurred in May 2008. More than three years have therefore passed without a significant advance. Mr. Justice Gill held that Rule 4.33 is mandatory, and rejected the plaintiffs’ argument relating to the honour of the Crown:

The Plaintiffs submit that the “the honour of the Crown” principle prevents Canada from relying on procedural defences. The argument that procedural rules do not or should not apply in Treaty or Aboriginal claims has been considered and rejected in a number of cases.  See: Lax Kw’alaams Indian Band v. Canada (Attorney General), [2011] 3 S.C.R. 535, 2011 SCC 56 at paras. 1-12 and 40 -43; Canada v. Stoney Band, 2005 FCA 15 at paras. 21 -27; Malcolm v. Canada (Minister of Indian and Northern Affairs), 2006 ABQB 152 at paras. 71 -72. The Rules of Court apply to this case.

The action was therefore dismissed with costs.


Scott Kerwin


Aboriginal Law