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Nunavuumi Iqkaqtuijikkut NUNAVUT COURT of JUSTICE La Cour De Justice Du Nunavut nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: NTI v. Canada (Attorney General), 2012 NUCJ 11 Date of Judgment: 20120627 Docket: 08-06-713-CVC Registry: Iqaluit Applicant: Inuit of Nunavut as Represented By Nunavut Tunngavik Incorporated -and- Respondent: The Attorney General of Canada -and- Third Party The Commissioner of Nunavut As Represented by the Government of Nunavut and the Government of Nunavut _____________________________________________________________________ Before: The Honourable Mr. Justice E. Johnson Counsel (Applicant): Dougald Brown Counsel (Respondent): Michele Annich Location Heard: Iqaluit, Nunavut Date Heard: February 12, 13, 2012 Matters: Nunavut Rules of Court, R.N.W.T. R-010-96, as duplicated for Nunavut by s.29 of the Nunavut Act, S.C. 1993, c. 28, Rules 174, 181, 238, 258 and 266. REASONS FOR JUDGEMENT (NOTE: This document may have been edited for publication) Amended Decision: An amended decision was issued on July 18, 2012 and July 23, 2012; the corrections have been made to the text and the amendment is appended to this judgment. I. INTRODUCTION [1] On May 25, 1993, the Inuit then residing to the east of the tree line of the Northwest Territories (NWT) entered into the Nunavut Land Claims Agreement with Canada (NLCA). The NLCA identified the geographical area of the NWT inhabited by these Inuit as the Nunavut Settlement Area (NSA). On April 1, 1999, this area became the Territory of Nunavut, pursuant to s. 3 of the Nunavut Act, S.C. 1993, c. 28. [2] The Tungavik Federation of Nunavut (TFN) was the signatory of the NLCA on behalf of the Inuit of the NSA. The applicant in the current action (NTI) is an incorporated organization that succeeded the TFN, and currently represents the Inuit under the NLCA. [3] On the same day as the execution of the NLCA, the respondent (Canada), the Government of the Northwest Territories and the TFN entered into A Contract Relating To The Implementation of the Nunavut Final Agreement (Implementation Contract), identifying their respective roles and responsibilities in the implementation of the NLCA. [4] On December 7, 2006, NTI commenced this action against the Defendant (Canada) alleging breaches of the NLCA and claiming damages of $1,000,000,000. [5] The action has slowly and steadily moved forward. This Court and the Nunavut Court of Appeal issued judgments on some initial procedural issues. They are reported at 2007 NUCJ 27, [2007] NJ No 32; 2008 NUCJ 13, 2008 CarlswellNun 13; 2008 NUCJ 15; and 2009 NUCA 2, 2009 CarswellNun 14. [6] The parties have been conducting examinations for discovery for the past two and half years and a realistic trial date is sometime in the first half of 2014. [7] In this application NTI seeks summary judgment in the amount of $14,817,500, pursuant to Rules 174 and 181 of the Rules of Court, as duplicated for Nunavut by s. 76.05 of the Nunavut Act, S.C. 1993, c. 28 [Rules of Court], for that part of the Amended Statement of Claim alleging breach of Article 12.7.6 of the NLCA as pleaded in paras 12(c), 13-18, 19, 43, 44, 45, 86(a)(iii), and 86(e). The corresponding paras of the Statement of Defence are 8, 40, 41, and 68. [8] These paras of the Statement of Claim allege that Canada breached Article 12.7.6 of the NLCA by failing to set up a general monitoring plan in accordance with timelines established under the Implementation Agreement. [9] The application was opposed by Canada and judgment was reserved. II. LAW A. Rules of Court [10] Rule 174 (1) permits a plaintiff to apply for summary judgment on part of the relief requested in the statement of claim. 174. (1) A plaintiff may, after a defendant has delivered a statement of defence, apply with supporting affidavits or other evidence for summary judgment against the defendant on all or part of the claim in the statement of claim. [11] Rule 176 (1) requires the defendant to respond to the application by setting out, in affidavit material or other evidence, specific facts showing that there is a genuine issue for trial. 176. (1) In response to the affidavit material or other evidence supporting an application for summary judgment, the respondant may not rest on the mere allegations or denials in his or her pleadings, but must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue for trial. [12] Rule 181 permits this Court to give judgment where admissions of fact constitute the “other evidence” specified in Rule 174. 181. At any stage of a proceeding or action, the Court may, on application, give any judgment or order to which NTI may be entitled where (a) admissions of fact have been made on the pleadings or otherwise; or (b) the only evidence consists of documents and such affidavits as are sufficient to prove their execution or identity. B. Rule 181 - use of admissions [13] The combined operation of Rules 174 and 181 makes summary judgment available where there are admissions and undisputed facts that provide an evidentiary basis for this Court to conclude that there is no genuine issue for trial and where the admissions are in respect of matters that would entitle a party to judgment. As Osborne J. noted in Ford Motor Co. of Canada v Ontario Municipal Employees Retirement Board (1997) 36 OR (3d) 384 at (CanLII) para 48, 153 DLR (4th) 33: Such an order will typically take the form of a summary judgment for part of the plaintiff's claim. [14] As held in Ellis v Allen, [1914] 1 Ch 904 at 908, [1911-13] All ER 906 quoted in Shinkaruk v Ecclesiastical Ins. Office Public Ltd. (1986), 52 Sask R 8, [1986] SJ No 588, Rule 181 is intended to permit the plaintiff to obtain speedy judgment on a plain admission. [15] At para 9 of Admiral Canada Inc. v Freekick Ltd., 2006 ABQB 451, [2006] AJ No 1651 (CanLII), Moen J. listed a number of cases where the Alberta Court of Appeal stated that summary judgment may be granted where admissions are clear and unequivocal. In this context, Moen J. noted admissions are concessions or voluntary statements made by a party concerning the existence of facts that are relevant to the adverse party. 'Admissions' are concessions or voluntary acknowledgements made by a party of the existence of certain facts. More accurately regarded, they are statements by a party, or someone identified with him in his legal interest, of the existence of a fact which is relevant to the cause of his adversary [...]: Vector Energy Inc. v. Canadian Pioneer Energy Inc. (1996), 185 A.R. 214 (Q.B. Master) at 217. [16] There are similar statements by Cromwell J. (as he was then) at para 3 of Armoyan Group Ltd. v Dartmouth (City), [1998] NSJ No 26, 167 NSR (2d) 398, and by Veit J. at para 18 of 1103785 Alberta Ltd. v ExxonMobil Canada Ltd., 2008 ABQB 581, [2008] AJ No 1043. In Vector Energy Inc. v Canadian Pioneer Energy Inc., [1996] AJ No 440, 185 AR 214, Master Waller also noted that admissions must be read in context. C. Rule 174 - general principles of summary judgment [17] Rule 174 is intended to advance procedural justice by preventing defences and claims that have no chance from proceeding to trial. In Papaschase Indian Band No 136 v Canada, [ 2008] 2 CNLR 295 at (QL) para 10 [Papaschase], the court stated: This appeal is from an application for summary judgment. The summary judgment rule serves an important purpose in the civil litigation system. It prevents claims or defences that have no chance of success from proceeding to trial. Trying unmeritorious claims imposes a heavy price in terms of time and cost on the parties to the litigation and on the justice system. It is essential to the proper operation of the justice system and beneficial to the parties that claims that have no chance of success be weeded out at an early stage. Conversely, it is essential to justice that claims disclosing real issues that may be successful proceed to trial. [18] The court also noted at para 11 that the reciprocal obligation placed on an applicant is high: For this reason, the bar on a motion for summary judgment is high. The defendant who seeks summary dismissal bears the evidentiary burden of showing that there is "no genuine issue of material fact requiring trial": Guarantee Co. of North America v. Gordon Capital Corp., [1999] 3 S.C.R. 423, at para. 27. The defendant must prove this; it cannot rely on mere allegations or the pleadings: 1061590 Ontario Ltd. v. Ontario Jockey Club (1995), 21 O.R. (3d) 547 (C.A.); Tucson Properties Ltd. v. Sentry Resources Ltd. (1982), 22 Alta. L.R. (2d) 44 (Q.B. (Master)), at pp. 46-47. If the defendant does prove this, the plaintiff must either refute or counter the defendant's evidence, or risk summary dismissal: Murphy Oil Co. v. Predator Corp., (2004), 365 A.R. 326, 2004 ABQB 688, at p. 331, aff'd (2006), 55 Alta. L.R. (4th) 1, 2006 ABCA 69. Each side must "put its best foot forward" with respect to the existence or non-existence of material issues to be tried: Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1996), 28 O.R. (3d) 423 (Gen. Div.), at p. 434; Goudie v. Ottawa (City), [2003] 1 S.C.R. 141, 2003 SCC 14, at para. 32. The chambers judge may make inferences of fact based on the undisputed facts before the court, as long as the inferences are strongly supported by the facts: Guarantee Co.
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