The SCC yesterday in Canada (Attorney General) v. Lameman allowed the Appeal from the decision of the Alberta Court of Appeal and restored the decision of Slatter J. (as he then was) to grant summary judgment to the defendant Crown in the claim advanced by descendents of the Papaschase Indian Band. The decision will be significant for students of civil procedure as it is one of the rare instances where a high court seeks to give some principled guidance on procedural questions (in this case on summary judgment and on limitation periods).
Looking over the decision, it is obvious that the plaintiffs had an insurmountable problem, which was that they knew by no later than 1974 that they had, or thought they had, a cause of action. The SCC specifically notes that the plaintiffs had no answer (and indeed filed no material) in response to that point. Instead, both at the SCC and at the Court of Appeal, the plaintiffs made "vague references" (says the SCC) of evidence that "might be pleaded or proved in the future."
Given that this case was hanging on the thinnest of threads, the ultimate outcome does not exactly mark the Alberta Court of Appeal's finest moment. In fairness to the Court of Appeal, however, it must be added that it at least had the fortitude to make the plaintiffs bear their own costs, largely because of the conduct of the appeal by their counsel. Specifically, plaintiff's counsel was said by the Court of Appeal to have, inter alia, (1) "argued and emphasized many hopeless procedural points ... which consumed considerable time and effort"; (2) "inaccurately recited the record or the [defendant]'s argument"; (3) "handed the Court and the [defendant] a new factum at the last moment"; (4) "consumed significant time and paper with unnecessary oration". (Emphasis added).
Discoverability seemed like it genuinely confused the ABCA here.
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