Let’s Get up to Speed

In February 2020, two Wet’suwet’en House groups of the Likhts’amisyu Clan filed a Statement of Claim in a litigation that aims to prove Canada has violated their s.7 Charter rights to life, liberty, and security of the person. By asserting their rights through the Misdzi Yikh v Canada case, these Wet’suwet’en Houses are taking legal action to hold Canada accountable to their global climate agreements.

Just a few months later, in July, Canada filed a Motion to Strike against this litigation. In November of that year, the Federal Court agreed to throw the case out on the basis that the claims within were non-justiciable, meaning that they were based on issues outside of the legal realm. 

With Canada’s Motion to Strike the claims in the Misdzi Yikh v Canada case, Canada aims to avoid being held legally responsible for climate impacts by arguing that these were political and discretionary decisions best left to legislatures. The Crown also claimed that, due to the political nature of opposition to the Coastal Gas Link pipeline by the Wet’suwet’en Chiefs of the two House groups, the courts were not an appropriate place to settle the matter.

Before the close of the year, the Wet’suwet’en House groups had appealed the decision — and in 2023, they were granted their appeal. After the appeal, the group filed a new, amended Statement of Claim to move forward with. 

But Canada is proving to be a sore loser here, because they have filed another Motion to Strike.

So, what the heck is a Motion to Strike? Why do they matter? And how come Canada can file another one for the same legal challenge?

The Legal Nuts and Bolts of a Motion to Strike

In Canada, when someone (or a group) wants to pursue justice through the courts, they must file a Statement of Claim. A Statement of Claim lays out the harms or injustices done by one party to another and outlines the desired outcomes or remedies sought out by taking legal action. 

A Motion to Strike is when one party within a litigation seeks an order striking out a Statement of Claim or other pleading. These motions can be brought forward based on various similar rules in both provincial and federal courts. 

If a Statement of Claim, or a portion of it, is struck out, it means it is found invalid, or in basic terms, scratched out.  When this happens to the whole Statement of Claim, the case will not move forward through the courts. Many Statements of Claims bring forward more than one ground for argument. If only one or a portion of the arguments is struck out, the case can move forward, but only on the remaining grounds.

A Statement of Claim can be struck out when the court finds the pleading to align with any of the following:

• discloses no reasonable cause of action or defense,
• is immaterial or redundant
• is scandalous, frivolous, or vexatious, may prejudice or delay a fair trial of the action, constitutes a departure from a previous pleading, or,
• is otherwise an abuse of process

The judge’s ruling on a Motion to Strike has the potential to be with “leave to amend,” which basically means that the original Statement of Claim can be amended, allowing for the party that lost the motion to edit their pleadings, and to continue towards trial. Without “leave to amend,” the pleadings will be struck from the Statement of Claim. 

If an entire Statement of Claim is struck, an appeal is possible, but only on specific grounds. A party cannot appeal just because they disagree. The party needs to demonstrate that there was a mistake of law or the decision was legally unreasonable, which typically requires demonstrating something was wrong with what the judge considered in making the decision.

Typically, a party will bring a Motion to Strike where they don’t believe there is sufficient legal basis for a claim and don’t want to have to proceed all the way to trial and incur the expense of the legal fees. It can also be a method to discourage novel claims from moving forward. A novel claim is one that hasn’t been brought forward before, and thus has no reference point for the decision. An argument simply being novel is not sufficient grounds to strike a claim, although the difference between novel and lacking sufficient grounds is not always a clear line, because the legal system in Canada is based upon precedent. 

Bringing a motion forward instead of being in the depths of a full trial means that a Motion to Strike requires less evidence. The court moves through a motion under the assumption that the party can prove all the evidence they allege, and with this assumption, they ask: is there sufficient grounds for the claim? The onus is on the moving party (or the party who brought the motion forward) to demonstrate that there are not, in fact, sufficient grounds.

Now that we know what a Motion to Strike is, let’s bring it back to Canada’s second Motion to Strike in the Wet’suwet’en House group’s climate litigation.

Canada still won’t take accountability for meaningful Climate Action

After the Federal Court of Appeal (FCA) granted the Misdzi Yikh case’s appeal, the Chiefs amended their Statement of Claim to ensure it was in line with the guidance provided by the FCA. 

However, now Canada has brought another Motion to Strike, arguing that the changes to the Statement of Claim were not sufficient and that it is still inadequate to ground a case. And so now we begin the process again. 

Canada continues to try to pass the buck on climate action. Wet’suwet’en culture and ways of being have already been drastically impacted due to climate change. As wildfires rage and ecosystems continue to be irreversibly altered — we are all at risk. We are all one planet. 

Learn more and donate to support this critical climate litigation that aims to protect us all well into the future.