Dismissal of land action gave rise to the negligence action
The Alberta Court of Appeal ruled that an action is warranted only when its legal basis became available.
In 2004, Ackroyd LLP, acting as counsel for Aseniwuche Winewak Nation of Canada, commenced a land claim action against Alberta and Canada over the expulsion of their ancestors from Jasper National Park. In 2013 and 2014 respectively, Canada and Alberta sought to have the claim dismissed for long delay, but both were dismissed.
On appeal, the dismissal was ultimately reversed in 2016 and the case was dismissed for long delay.
In October 2016, Aseniwuche commenced a negligence action against Ackroyd. Ackroyd sought summary dismissal, claiming that the action was commenced out of time.
The summary dismissal application was dismissed by the applications judge, ruling that since it was first dismissed in 2015, there was no injury to speak of. This was later reversed. A second applications judge ruled that in April 2014, Aseniwuche had already known of the injury and dismissed the action for having been commenced after the expiration period.
On appeal, Aseniwuche argued that their negligence action was commenced in time.
The appellate court agreed.
In Aseniwuche Winewak Nation of Canada v Ackroyd LLP, 2023 ABCA 60, the appellate court ruled that the judge failed to recognize the significance of the 2015 decision.
The appellate court highlighted the fact that the land claim action survived the dismissal for long delay. Thus, it was only when the action was eventually dismissed that an action against Ackyroyd was warranted, said the court.
“The decision of the chambers judge remained valid until it was set aside, and an action was not warranted unless and until the legal situation changed,” said the court.
As such, the appellate court allowed the appeal and the summary dismissal application was dismissed.
