By Gavriel Kesik-LibinMarch 18, 2025
The Supreme Court of Canada (“SCC”) has dismissed the appeal in Saskatchewan (Environment) v Métis Nation, 2025 SCC 4 [Métis Nation]. A unanimous court found that proceedings for judicial review which raise similar issues to ongoing or past litigation do not inherently amount to an abuse of process. In doing so, the SCC has clarified the extent to which a multiplicity of proceedings may engage the doctrine of abuse of process.
Facts
The Métis Nation of Saskatchewan (“MNS”) and the Government of Saskatchewan have been engaged in legal proceedings for over two decades (Métis Nation, para 1). The litigation began in 1994 when the MNS commenced an action seeking declarations of Aboriginal title over and rights to fish, hunt, and trap on lands in northern Saskatchewan (“1994 action”) (Métis Nation, para 7). The 1994 action was eventually stayed when MNS refused to comply with a court order requiring them to disclose documents relating to the claim, and to date, MNS has not applied to lift the stay (Métis Nation, paras 8-9).
In 2010, the Government of Saskatchewan adopted the First Nation and Métis Consultation Policy Framework (“2010 policy”) which expressly stated that “the Government does not accept assertions by First Nations or Métis that Aboriginal title continues to exist with respect to either lands or resources in Saskatchewan.” (Métis Nation, para 12) Accordingly, the provincial government would not consult with First Nations or Métis on matters involving Aboriginal title or commercial use of natural resources. MNS commenced an action against Saskatchewan with respect to the 2010 policy (“2020 action”), seeking declarations that it was (a) invalid, (b) a breach of the honour of the Crown, and (c) an abrogation of the Crown’s duty to consult with respect to Aboriginal title and commercial harvesting (Métis Nation, para 13). MNS brought an application for summary judgment on the 2020 action asking whether the 2010 policy was prima facie inconsistent with established jurisprudence on the duty to consult, and therefore unconstitutional (Métis Nation, para 14). At the time of writing, the decision on the summary judgment is pending.
In July 2021, Saskatchewan issued uranium exploration permits near Patterson Lake (Métis Nation, para 15). Saskatchewan expressed the province’s intention to consult MNS on rights to fish, trap, and hunt. However, the province refused to consult with respect to Aboriginal title and commercial harvesting, in line with the 2010 policy (Métis Nation, para 16). MNS sought judicial review of Saskatchewan’s decision to issue the exploration permits (“2021 application”). They took issue with Saskatchewan’s refusal to consult regarding Aboriginal title and commercial harvesting rights (Métis Nation, para 17). MNS sought an order of certiorari quashing the permits, and a prohibition order preventing Saskatchewan from issuing further permits without adequate consultation (Métis Nation, para 18). In response, Saskatchewan filed an application seeking to strike paragraphs in the 2021 application that referred to the claims regarding Aboriginal title and commercial harvesting, arguing that they constituted an abuse of process in light of similarities to the 1994 and 2020 actions (Métis Nation, para 19).
Judicial History
Court of Queen’s Bench of Saskatchewan
The application judge noted that the issue of Aboriginal title and commercial harvesting had already been raised in the 1994 action. Because that action had been stayed, MNS was barred from raising the same claim in a new action (Métis Nation, para 21). Because the 2021 application essentially raised the same issues as the 1994 and 2020 actions, it would be an abuse of process to allow MNS to proceed with the similar aspects of the 2021 action. Accordingly, the application judge granted Saskatchewan’s motion to strike (Métis Nation, para 22).
Saskatchewan Court of Appeal
The Saskatchewan Court of Appeal (“SKCA”) unanimously allowed MNS’s appeal and reinstated the paragraphs in the 2021 application (Métis Nation, para 23). They stated that the doctrine of abuse of process is flexible, and is primarily employed to prevent the administration of justice from being misused (Métis Nation, para 24). While the 1994 action, the 2020 action, and the 2021 application “superficially” related to the same issue (the claim for Aboriginal title and commercial harvesting rights), this alone did not make the proceedings identical and harm the administration of justice. Judicial review on the issue of duty to consult can occur concurrently with litigation, as the duty to consult protects aboriginal rights while land and resource claims are ongoing (Métis Nation, para 25). It was also an error for the application judge to conclude that the proceedings all raised the same issues. The SKCA distinguished between the question of the existence and scope of the duty to consult, and the question of whether an underlying substantive Aboriginal right exists at all. When a reviewing court is asked, as it was in the 2021 application, to determine an alleged failure of the duty to consult, they are not asked to determine the existence of Aboriginal rights or title. This is what occurred in the 1994 action (Métis Nation, para 26).
For a more detailed analysis of the SKCA’s decision, see this Appeal Watch article by Darya Rahbar.
Issue
A single issue went to the SCC: Is it an abuse of process for MNS to pursue the 2021 application in its original form, given the 1994 and 2020 actions? (Métis Nation, para 29)
Decision
Rowe J. wrote for a unanimous SCC and dismissed the appeal. After providing an overview of the law governing the abuse of process doctrine, Rowe J. examined the subject matters of the impugned actions and pleadings and concluded that they did not amount to an abuse of process.
The Law of Abuse of Process
Fundamentally, the doctrine of abuse of process concerns the fair administration of justice. It is a manifestation of the inherent power of courts to prevent misuse of their proceedings in a way that would be patently unfair to a party or bring the administration of justice into disrepute (Métis Nation, para 33). The doctrine is intended to be broad and apply in a variety of contexts. Indeed, its defining feature is its flexibility and lack of specific requirements (Métis Nation, para 34). One type of abuse of process is the relitigation of claims that have already been determined. Relitigation will be an abuse of process if it violates principles such as judicial economy, consistency, finality, and the integrity of the administration of justice. Where appropriate, it can be relied on to strike pleadings to prevent relitigation of an issue, as Saskatchewan sought to do in this case (Métis Nation, para 35).
Relatedly, a multiplicity of proceedings can also constitute an abuse of process – “it is prima facie vexatious to bring two actions where one will do.” (Métis Nation, para 38) However, the mere fact that there are two or more ongoing legal proceedings that involve the same or similar parties or legal issues is not itself sufficient to prove an abuse of process (Métis Nation, para 39). There may be instances in which parties have a valid reason for bringing separate but related proceedings – in such cases, multiple proceedings can enhance, not impugn, the administration of justice (Métis Nation, para 39). Rowe J. emphasized that the analysis should not turn on whether a multiplicity of proceedings exists, but rather, whether allowing the litigation would violate the principles of judicial economy, consistency, finality, and the administration of justice (Métis Nation, para 40). Examples of where this analysis might be true are cases where multiple proceedings would waste judicial resources or risk inconsistent results (Métis Nation, para 40).
Application
To determine whether the 2021 application constituted an abuse of process, Rowe J. first identified the purpose and remedies sought by each proceeding. The 1994 action’s purpose was to claim Aboriginal title and commercial harvesting rights over land in northwestern Saskatchewan (Métis Nation, para 44). The purpose of the 2020 action was to generally delineate the scope of Saskatchewan’s duty to consult, and to seek various declarations with respect to the 2010 policy (Métis Nation, para 45). The 2021 application sought judicial review of the province’s decision to grant the exploration permits. The impugned paragraphs of MNS’s pleadings seek several declarations, including that Saskatchewan has a duty to consult regarding the impact of the exploration permits on MNS’s claim of Aboriginal title and commercial harvesting rights, and an order quashing the permits (Métis Nation, para 46).
After setting out the purpose of the three proceedings between MNS and Saskatchewan, Rowe J. turned to the issue of abuse of process. He admitted that there was “clearly… overlap” between the 2020 action and the 2021 application. Both proceedings dealt with the duty to consult. However, the 2020 action dealt with it generally, while the 2021 application concerned a specific instance of the duty to consult (Métis Nation, para 57). Despite a similarity in the issues raised, the 2021 application did not amount to an abuse of process. Abuse of process requires more than an overlap of issues – “it must threaten the integrity of the adjudicative process or another fundamental principle.” (Métis Nation, para 59). The 2021 application did not implicate these issues. In fact, it would be misuse of the doctrine of abuse of process to immunize Saskatchewan’s actions from judicial review, particularly those that impact MNS’s claimed Aboriginal rights and title (Métis Nation, para 59). While the 2020 action and the 2021 originating application may lead to inconsistent outcomes, in the sense that the two judgments could produce different answers as to Saskatchewan’s duty to consult, Rowe J. thought that this might be better addressed through case management (Métis Nation, para 60). Striking pleadings for abuse of process is a drastic remedy, and the availability of case management strategies (like adjourning the 2021 application pending the 2020 action’s resolution) shows that this is not a serious case where abuse of process is implicated (Métis Nation, para 60).
Rowe J. concluded his judgment by stating that while abuse of process may certainly arise in proceedings involving Indigenous litigants, the unique context of Aboriginal rights litigation should be kept in mind when determining whether an abuse of process exists, and if so, the appropriate remedy (Métis Nation, para 62). It is the job of the court to facilitate, not impede, the resolution of Aboriginal claims, in light of the goals of reconciliation (Métis Nation, para 62).
Analysis
This judgment certainly did not break new ground with respect to the law of abuse of process. However, Rowe J. has provided a concise restatement of the the law as set down in cases such as Law Society of Saskatchewan v Abrametz, 2022 SCC 29, Behn v Moulton Contracting, 2013 SCC 26, and Toronto (City) v CUPE, Local 79, 2003 SCC 63. The decision provides helpful clarity on the extent to which a multiplicity of proceedings may engage abuse of process, and how much overlap between proceedings may be too much. Further, the decision signals to courts that when the potential for inconsistent decisions arises, courts should not jump the gun and resort to the drastic remedy of abuse of process. Case management can be a valuable tool in mitigating the risks posed by related legal proceedings without engaging abuse of process prematurely.
I also agree with the SCC’s decision to dismiss the appeal, particularly in light of the unique context of Aboriginal rights litigation. The protracted litigation between MNS and Saskatchewan, as well as the nature of the 2010 policy, is certainly unfortunate. It would be more unfortunate to see the SCC essentially immunize Saskatchewan’s decision to issue permits from judicial review on the grounds that summary judgment on the constitutionality of their Aboriginal title policy was pending. Courts should be careful to dissuade Aboriginal groups from seeking judicial review of government actions that implicate their rights and title. While, as with all litigation, the vindication of rights must be balanced against the fair use of court resources, I agree that a general topical overlap between the 2020 action and 2021 application did not rise to the level of abuse of process. The bar for abuse of process is high — it requires litigation strategies to “threaten the integrity of the adjudicative process.” (Métis Nation, para 59) It would be somewhat disingenuous to characterize the limited degree of relatedness between the two actions, which fundamentally concerned different applications of the duty to consult, as approaching this standard. The fact that this judgment was backed by a unanimous SCC is likely reflective of this reality.
Ultimately, Rowe J.’s decision and comments provide helpful direction to both Aboriginal and Crown litigants as to how such claims can fairly and justly be resolved in the courts, as well as guidance to the bench and bar with an up-to-date restatement of the doctrine of abuse of process.
This article was edited by Alexandre Cachon.