Docket: A-122-25
Citation: 2026 FCA 83
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CORAM:
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STRATAS J.A.
LOCKE J.A.
WALKER J.A.
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BETWEEN:
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HIS MAJESTY THE KING IN RIGHT OF SASKATCHEWAN as represented by THE ATTORNEY GENERAL OF SASKATCHEWAN
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Appellant
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and
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CHIEF M. TODD PEIGAN on behalf of himself and all other members of The Pasqua First Nation and THE PASQUA FIRST NATION and HIS MAJESTY THE KING IN RIGHT OF CANADA as represented by THE ATTORNEY GENERAL OF CANADA
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Respondents
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REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Ottawa, Ontario, on April 27, 2026).
STRATAS J.A.
[1] Saskatchewan appeals the Federal Court’s decision dated March 18, 2025: 2025 FC 492 (per Strickland J.). In admirably detailed, complete and cogent reasons written with depth, precision and skill, the Federal Court struck portions of the respondents’ statement of claim against Saskatchewan and left certain other portions of the claim in place.
[2] Saskatchewan says the Federal Court should have struck the entire claim. We disagree. In our view, the Federal Court committed no reversible error.
[3] The Federal Court correctly followed the law on motions to strike. It read the claim “holistically and practically”
to “gain ‘a realistic appreciation’ of the [claim’s] ‘essential character’”
: Canada (National Revenue) v. J.P. Morgan Asset Management (Canada) Inc., 2013 FCA 250 at paras. 49-50; Canadian National Railway Company v. Canada (Transportation Agency), 2023 FCA 245 at para. 14. Then it instructed itself correctly (at paras. 10 and 60) on the law on motions to strike, including Rule 221 of the Federal Courts Rules, S.O.R./98-106 and the principle that a claim “will only be struck if it is plain and obvious, assuming the facts pleaded to be true, that the pleading discloses no reasonable cause of action”
: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 at para. 17.
[4] And in applying these correct legal principles, the Federal Court did not commit any palpable and overriding error. Palpable and overriding error is a high standard that is rarely met: Mahjoub v. Canada (Citizenship and Immigration), 2017 FCA 157, [2018] 2 F.C.R. 344; and see Canada v. South Yukon Forest Corporation, 2012 FCA 165 at para. 46, adopted by the Supreme Court in Benhaim v. St‑Germain, 2016 SCC 48, [2016] 2 S.C.R. 352 at para. 38.
[5] In their claim, the respondents allege that Saskatchewan did not fulfill its obligations to consider the respondents’ requests favourably, to act in good faith and to perform its obligations in the Settlement Agreement consistent with the honour of the Crown: see paras. 70, 74-75, 81, 84 and 91-92. The Federal Court did not strike these allegations. In doing so, it did not err: there is law upon which these claims can succeed. Among other things, the Settlement Agreement provides that Saskatchewan must give the respondents’ requests favourable consideration, the Supreme Court has recognized an organizing principle of good faith and the duty of honest performance in contract law (Bhasin v. Hrynew, 2014 SCC 71 at paras. 63, 73-75; Wastech Services Ltd. v. Greater Vancouver Sewerage and Drainage District, 2021 SCC 7 at paras. 48-56) and the Supreme Court has held that where there is a contract between the Crown and an Indigenous group, entered into “by reason and on the basis of the group’s Indigenous difference”
and that “has reconciliation as its backdrop”
, the honour of the Crown requires “a standard of conduct that is higher than in the context of an ordinary contractual relationship”
(Quebec (Attorney General) v. Pekuakamiulnuatsh Takuhikan, 2024 SCC 39 at paras. 161-163, 187, 190-192).
[6] In oral argument, Saskatchewan submitted that the Supreme Court did not intend in these cases to make motions to strike more difficult. Whether intended or not, that may well be the effect of these cases. Saskatchewan also submitted that the Court cannot rewrite the agreement. That is true. But given the obligations mentioned above, what the agreement means is a live issue. The Federal Court held that resolving that issue needs evidence. We cannot say that that holding is wrong in law or is a palpable and overriding error.
[7] Saskatchewan submits that the respondents’ claim is doomed to fail because of Muskoday First Nation v. Saskatchewan, 2016 SKQB 73, Witchekan Lake First Nation v. Saskatchewan (Attorney General), 2023 FCA 105 and George Gordon First Nation v. Saskatchewan, 2022 SKCA 41. The Federal Court correctly distinguished these cases (at paras. 61-81), noting that they are summary judgment cases based on evidence that was filed—not motions to strike where the parties file no evidence and the Court takes the allegations in the pleadings as true.
[8] Likewise, we see no reversible error in the Federal Court’s analysis (at paras. 82-92) of the Settlement Agreement. Articles 4.06 and 5.03(b) do confirm that Saskatchewan is not required to sell any particular lands or minerals. But this misses the point of the allegations in the claim: the respondents allege that in the process of deciding not to sell, Saskatchewan fell short of the standard of conduct required under the Settlement Agreement and the law alongside of it, referred to in paragraph 5 above.
[9] Saskatchewan disputes paragraph 33 of the claim. There, the respondents allege that Saskatchewan exercised its discretion under the Wildlife Habitat Protection Act, S.S. 1983-1984, c. W-13.2, in a discriminatory manner. Saskatchewan adds that because of articles 4.07(a) and 20.08 of the Settlement Agreement and various provisions in the Wildlife Habitat Protection Act and its accompanying regulations, the respondents’ allegations must be wrong. But this is a pleadings motion where the Federal Court had to take the factual allegations as true, as unparticularized as they are. The Federal Court correctly did so. And the Federal Court said that it needs evidence to decide them on their merits, such as on a summary judgment motion or trial. We agree.
[10] Later in this case, depending on the state of the evidence, summary judgment might be live. But at this early stage, the Federal Court was dealing with a motion to strike where it had to take the factual allegations as true. On this, we see no reversible error in the Federal Court’s decision. Indeed, we substantially agree with Federal Court’s decision for the reasons it gave.
[11] Accordingly, we will dismiss the appeal with costs.
“David Stratas”
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