Thursday, June 28, 2012

Important summary judgment decision on "A Contract Relating To The Implementation of the Nunavut Final Agreement"

NTI v. Canada (Attorney General), 2012 NUCJ 11 was released today.

It is a very important decision granting partial summary judgment against the Crown in favour of the Inuit of Nunavut as Represented By Nunavut Tunngavik Incorporated for breaches of "A Contract Relating To The Implementation of the Nunavut Final Agreement".

The partial summary judgment awarded slightly less than $15,000,000 and a declaration on a total claim for $1,000,000,000. That claim will go to trial later unless settlement is spurred by today's decision. In coming to this decision the Court reviewed the law relating to summary judgment:

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. of North America, at para. 30.

[19] These principles of law for interpreting the summary judgment rules in other jurisdictions have been applied in the Northwest Territories. That jurisdiction has the same Rules of Court as Nunavut. In Base v Hadley, 2006 NWTSC 4, [2006] NWT J No 3 [Base], Schuler J. held a party moving for summary judgment has the ultimate burden of establishing that there is not a genuine issue for trial and that judgment should be granted. However, Canada has an evidentiary burden to "put its best foot forward". Canada cannot rest on unsupported allegations or denials but must adduce evidence of specific facts showing that there is a genuine issue that requires a trial. The Court is entitled to assume that the evidence Canada presents is all the evidence that is available to it and to decide the motion on the basis of the evidence before the Court.

[20] In Base, Schuler J. held that either party could rely on transcripts of examinations for discovery to support their argument.

[21] These principles were applied in Nunavut in Nunavut Tunngavik Inc. v Canada (Attorney General), 2003 NUCJ 01, [2003] Nu J No 2 [NTI Firearms]. In that case, NTI applied for an interim order staying the application of firearms registration to Inuit Beneficiaries. Canada filed a cross-application for summary judgment dismissing the application. In granting the order requested by NTI and dismissing the cross-application, Kilpatrick J. adopted the words of Vertes J. in Norn v Stanton Regional Hospital, [1998] NWT J No 88 at (QL) para 17, 26 CPC (4th) 276, as follows:

The test on a summary judgment motion is well-known. The motions judge must take a hard look at the evidence to determine whether there is a genuine issue for trial: see 923087 N.W.T. Ltd. v Anderson Mills Ltd., [1997] N.W.T.R. 212 (S.C.), at pages 221 - 223. If there is no genuine issue for trial, the court must grant summary judgment: Rule 176(2). And, if the only genuine issue is a question of law, the court may, not must, determine that question and grant summary judgment: Rule 176(4). The "genuine" issue is usually one of fact or one of mixed fact and law, but it may also be one of pure law where, as here, the state of the law is in flux. The case law, even while recognizing that a summary judgment motion is an effective way of avoiding expensive and lengthy litigation, demands that it must be clear that a trial is unnecessary to resolve the issues.

[22] There are some authorities that have held that serious or novel areas of law should not be decided on a summary judgment. See Shell Canada Resources Ltd. v Ralph M. Parsons Co. of Canada, [1981] AJ No 977, [1981] 4 WWR 647; Prudential Trust Co. v National Trust Co., [1965] AJ No 7, 55 DLR (2d) 272; Edmonton Region Community Board for Persons with Developmental Disabilities v Pearl Villas Homes Ltd., 2010 ABQB 786, [2010] AJ No 1420; Saint-François de Madawaska (Village) v Nadeau Poultry Farm Ltd., 2011 NBCA 55, [2011] NB J No 197; Royal Bank v Société Général (Canada) (2006), 219 OAC 83, 31 BLR (4th) 63; Shell v Barnsley, 2006 MBCA 133, [2007] 2 WWR 66.

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