Nunavut Tunngavik Inc. v. Canada (Attorney General) et al., (2014) 580 A.R. 75

• Judge: Hunt, O'Brien and Slatter, JJ.A.
• Court: Nunavut Court of Appeal (Canada)
• Case Date: April 23, 2014
• Jurisdiction: Nunavut
• Citations: (2014), 580 A.R. 75;2014 NUCA 2

Nunavut Tunngavik Inc. v. Can. (A.G.) (2014), 580 A.R. 75; 620 W.A.C. 75 (NUCA)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. MY.041

The Inuit of Nunavut as Represented by Nunavut Tunngavik Incorporated (respondent/plaintiff) v. The Attorney General of Canada (appellant/defendant) and The Commissioner of Nunavut as Represented by Government of Nunavut and the Government of Nunavut (third parties)

(08-12-007-CAP; 2014 NUCA 2)

Indexed As: Nunavut Tunngavik Inc. v. Canada (Attorney General) et al.

Nunavut Court of Appeal

Hunt, O'Brien and Slatter, JJ.A.

April 23, 2014.

Summary:

This action was started by Nunavut Tunngavik Inc. (Tunngavik), a body created to assist in implementing a comprehensive Land Claims Agreement between the Inuit and Canada. The action alleged numerous breaches by Canada of the Agreement. The case management judge granted partial summary judgment against Canada related to a breach of Article 12.7.6 of the Agreement regarding the implementation of an informational monitoring plan. See [2012] Nunavut Cases Uned. 11 (C.J.). Canada appealed. The issues were: (a) whether Canada owed Tunngavik fiduciary duties under or parallel to Article 12.7.6, (b) whether restitutionary (as opposed to only expectation) damages were available for the breach, and (c) whether the record on the quantum of damages was sufficiently clear for summary judgment.

The Nunavut Court of Appeal allowed the appeal and set aside the summary judgment. The court held that: Canada did not owe Tunngavik fiduciary duties under or parallel to Article 12.7.6; based on Canada's admission, Tunngavik was entitled to a declaration that Canada was in breach of Article 12.7.6; Tunngavik was not limited to a claim for nominal damages; but there remained genuine issues for trial on the quantum of damages, and this was not an appropriate case to try and quantify them on a summary judgment basis. Hunt, J.A., dissenting, would have dismissed the appeal on the basis that the case management judge did not err in granting summary judgment on the issue of damages for Canada's breach of Article 12.7.6, or in his assessment of damages.

Contracts - Topic 2116

Terms - Express terms - "Entire agreement" or "four corners" clause - Nunavut Tunngavik Inc. (Tunngavik) was created to assist in implementing a comprehensive Land Claims Agreement between the Inuit and Canada - Tunngavik brought an action against Canada alleging numerous breaches of the Agreement - The case management judge granted partial summary judgment against Canada related to a breach of Article 12.7.6 of the Agreement regarding the implementation of an informational monitoring plan - Canada appealed - The Nunavut Court of Appeal held, inter alia, that Canada did not owe Tunngavik fiduciary duties parallel to Article 12.7.6 -The court stated, inter alia, that "The 'whole agreement' clause in the Land Claims Agreement specifies that there are no collateral representations. The overall structure and content of the Land Claims Agreement do not leave any room for implied covenants covering the subjects specifically dealt with in it. Everything that the appellant agreed to do about implementing and funding monitoring is to be found in Article 12.7.6. That is not to say that the background fiduciary relationship between the parties might not have some impact on the interpretation of the Land Claims Agreement ..., but it is not a basis for enlarging on the contractual covenants." - See paragraph 59.

Contracts - Topic 4062

Remedies for breach - Accounting of profits (disgorgement) - When available or appropriate - Nunavut Tunngavik Inc. (Tunngavik) was created to assist in implementing a comprehensive Land Claims Agreement between the Inuit and Canada - Tunngavik brought an action against Canada alleging numerous breaches of the Agreement - The case management judge granted partial summary judgment against Canada related to a breach of Article 12.7.6 of the Agreement regarding the implementation of an informational monitoring plan - Canada appealed - At issue, inter alia, was whether restitutionary (as opposed to only expectation) damages were available for the breach - Tunngavik had sought a disgorgement of the savings Canada had realized through its delayed performance - The Nunavut Court of Appeal held that restitutionary remedies were available for the breach - Canada received valuable consideration for the covenant to establish a system of statistical monitoring - If it could simply refuse to perform that covenant, and argue that it did not have to pay any damages because none could readily be established, it would potentially deprive the Inuit of many of the Agreement's intended benefits - In the context of a land claims treaty, insulating the contracting government from any consequences of a breach of a covenant like this was legally unacceptable - The case management judge correctly concluded that Tunngavik was not limited to a claim for nominal damages - Some appropriate measure of damages had to be found - The "savings" achieved by Canada in not performing were a relevant consideration - However, Canada's argument on the summary judgment application was that only nominal damages were available and it was not until after the case management judge rendered his decision that it could really understand the case it had to meet - Genuine issues for trial on the quantum of damages remained - See paragraphs 78 to 98.

Contracts - Topic 7407

Interpretation - General principles - Whole contract to considered - Canada appealed the partial summary judgment granted against it by a case management judge - The underlying action alleged numerous breaches by Canada of the Nunavut Land Claims Agreement - The Nunavut Court of Appeal stated that "The Land Claims Agreement is at the heart of this litigation. The entire Statement of Claim and the summary judgment application were premised on it. It is pled in para. 3 of the Amended Statement of Claim, and 'admitted' in para. 4 of the Defence. Both the parties and the case management judge were well aware of its admitted existence and content. The fact that the parties did not photocopy the lengthy Agreement and include it in the Appeal Books is of no consequence. It is available for review on line. The Land Claims Agreement is a document with constitutional status, it was tabled in Parliament, it has been ratified by statute, and was admitted in the pleadings. It is artificial to suggest it is not a part of this record. It is axiomatic that an agreement must be interpreted as a whole, and all the provisions of the Agreement must be considered when deciding what duties flow from it." - See paragraph 6.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown (incl. fiduciary duties, consultation duties and honour of the Crown) - Nunavut Tunngavik Inc. (Tunngavik) was created to assist in the implementation of a comprehensive Land Claims Agreement between the Inuit and Canada - Tunngavik brought an action against Canada alleging numerous breaches by Canada of the Agreement - The case management judge granted partial summary judgment against Canada related to a breach of Article 12.7.6 of the Agreement regarding the implementation of an informational monitoring plan - Canada appealed - The Nunavut Court of Appeal held, inter alia, that Canada did not owe Tunngavik fiduciary duties under Article 12.7.6 - There was no evidence on the summary judgment record showing that statistical monitoring was ever "a part of the aboriginal title" - The aboriginal peoples lived on and derived their sustenance from their land; judicial notice could not be taken that collecting statistics was part of their culture - Second, the Agreement did not support any undertaking of loyalty, or undertaking by the government to subordinate its interests to those of the Inuit - Further, the covenant to monitor was not a sufficiently identifiable interest to support a fiduciary duty - See paragraphs 28 to 54.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown (incl. fiduciary duties, consultation duties and honour of the Crown) - Nunavut Tunngavik Inc. (Tunngavik) was created to assist in the implementation of a comprehensive Land Claims Agreement between the Inuit and Canada - Tunngavik brought an action against Canada alleging numerous breaches by Canada of the Agreement - The case management judge granted partial summary judgment against Canada related to a breach of Article 12.7.6 of the Agreement regarding the implementation of an informational monitoring plan - Canada appealed - The Nunavut Court of Appeal held, inter alia, that Canada did not owe Tunngavik fiduciary duties parallel to Article 12.7.6 - The court stated that "Principles of interpretation cannot be taken so far that they compel the appellant to do more than what has been agreed to, nor to create new obligations that are not in the Land Claims Agreement. A treaty is not an empty vessel to be filled up using interpretive principles with whatever covenants one of the parties or the court thinks, with hindsight, would be a 'good idea', 'fair', or 'consistent with the honour of the Crown' ... modern aboriginal law is informed by the overriding objective of the reconciliation of pre-existing aboriginal societies with the assertion of Canadian sovereignty. In that regard the Crown (with or without the invocation of the 'honour of the Crown') should be expected to fulfill its contractual promises found in the treaties it enters into. If the Crown breaches those treaties, appropriate remedies should be granted. However, it adds nothing to superimpose a fiduciary cloak over what is essentially a contractual relationship. In this case the asserted fiduciary duties are ill defined, open-ended, and in many respects inconsistent with the wording of the Land Claims Agreement. If such fiduciary duties exist, neither the appellant nor the respondent could know with certainty what they encompass. This is inconsistent with the purposes of modern treaties ..." - See paragraphs 72, 75 and 76.

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown (incl. fiduciary duties, consultation duties and honour of the Crown) - Nunavut Tunngavik Inc. (Tunngavik) was created to assist in the implementation of a comprehensive Land Claims Agreement between the Inuit and Canada - Tunngavik brought an action against Canada alleging numerous breaches by Canada of the Agreement - The case management judge granted partial summary judgment against Canada related to a breach of Article 12.7.6 of the Agreement regarding the implementation of an informational monitoring plan - Canada appealed - The Nunavut Court of Appeal held, inter alia, that Canada did not owe Tunngavik fiduciary duties parallel to Article 12.7.6 - The court stated that "It does not assist the treaty making process to send a signal that every new treaty carries with it ill-defined parallel fiduciary duties. Canada will be better positioned to enter into modern treaties if it knows that its obligations are to be found within the four corners of the treaty, based on recognized principles of interpretation of such covenants, and that surrendered aboriginal claims will not still exist in some ephemeral state to impose additional, possibly inconsistent, fiduciary obligations. There is no compelling policy reason to find a fiduciary duty in this case." - See paragraph 77.

Indians, Inuit and Métis - Topic 4410

Treaties and proclamations - General - Interpretation - [See second Indians, Inuit and Métis - Topic 3 ].

Indians, Inuit and Métis - Topic 5522

Lands - Land claim agreements - Interpretation - [See Contracts - Topic 2116 , Contracts - Topic 4062 and all Indians, Inuit and Métis - Topic 3 ].

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - [See Contracts - Topic 4062 ].

Practice - Topic 5717

Judgments and orders - Summary judgments - For part of claim - [See Contracts - Topic 4062 ].

Practice - Topic 8800

Appeals - General principles - Duty of appellate court regarding findings of fact by a trial judge - Nunavut Tunngavik Inc. (Tunngavik) was created to assist in the implementation of a comprehensive Land Claims Agreement between the Inuit and Canada - Tunngavik brought an action against Canada alleging numerous breaches of the Agreement - The case management judge granted partial summary judgment against Canada related to a breach of Article 12.7.6 of the Agreement regarding the implementation of an informational monitoring plan - Canada appealed - The issues were: (a) whether Canada owed Tunngavik fiduciary duties under or parallel to Article 12.7.6, (b) whether restitutionary (as opposed to only expectation) damages were available for the breach, and (c) whether the record on the quantum of damages was sufficiently clear for summary judgment - The Nunavut Court of Appeal held that the case management judge's factual findings underlying the finding of a fiduciary duty were entitled to deference, but the legal test for the existence of a fiduciary duty was a question of law reviewed for correctness - The interpretation of the Agreement's terms was a question of law reviewed for correctness - The availability of any particular type of damages for breach of contract was a question of law reviewed for correctness - The determination of the quantum of damages was largely a question of fact, and should only be interfered with where the trial judge applied a wrong principle of law, or the overall amount was a wholly erroneous estimate - The test for summary judgment was a question of law reviewed for correctness - The application of that test to a particular record involved a mixed question of fact and law and the granting of summary judgment was entitled to some deference - See paragraphs 20 to 27.

Practice - Topic 8800.1

Appeals - General principles - Duty of appellate court regarding findings of mixed law and fact by a trial judge - [See Practice - Topic 8800 ].

Practice - Topic 8800.2

Appeals - General principles - Duty of appellate court regarding findings of law - [See Practice - Topic 8800 ].

Practice - Topic 8802

Appeals - General principles - Duty of appellate court regarding damage awards by a trial judge - [See Practice - Topic 8800 ].

Practice - Topic 9053

Appeals - Record on appeal - Content of record on appeal - [See Contracts - Topic 7407 ].

Cases Noticed:

Hryniak v. Mauldin (2014), 453 N.R. 51; 314 O.A.C. 1; 366 D.L.R.(4th) 671; 2014 SCC 7, refd to. [para. 23].

Kripps et al. v. Touche Ross & Co. et al. (1992), 15 B.C.A.C. 184; 27 W.A.C. 184; 69 B.C.L.R.(2d) 62; 94 D.L.R.(4th) 284 (C.A.), refd to. [para. 23].

Perez v. Galambos et al., [2009] 3 S.C.R. 247; 394 N.R. 209; 276 B.C.A.C. 272; 468 W.A.C. 272; 2009 SCC 48, refd to. [para. 24].

Elder Advocates of Alberta Society et al. v. Alberta et al., [2011] 2 S.C.R. 261; 416 N.R. 198; 499 A.R. 345; 514 W.A.C. 345; 2011 SCC 24, refd to. [para. 24].

Housen v. Nickolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 24].

Sumner v. PCL Constructors Inc. et al. (2011), 515 A.R. 231; 532 W.A.C. 231; 2011 ABCA 326, refd to. [para. 25].

Globex Foreign Exchange Corp. v. Kelcher et al. (2011), 513 A.R. 101; 530 W.A.C. 101; 2011 ABCA 240, refd to. [para. 25].

Diegel v. Diegel, [2008] A.R. Uned. 304; 100 Alta. L.R.(4th) 1; 2008 ABCA 389, refd to. [para. 25].

Alberta Importers and Distributors (1993) Inc. et al. v. Phoenix Marble Ltd. et al. (2008), 432 A.R. 173; 424 W.A.C. 173; 88 Alta. L.R.(4th) 225; 2008 ABCA 177, refd to. [para. 25].

358296 Alberta Ltd. v. Phoenix Marble Ltd. - see Alberta Importers and Distributors (1993) Inc. et al. v. Phoenix Marble Ltd. et al.

Andrews et al. v. Grand & Toy (Alberta) Ltd. et al., [1978] 2 S.C.R. 229; 19 N.R. 50; 8 A.R. 182; [1978] 1 W.W.R. 577, refd to. [para. 26].

Herron et al. v. Hunting Chase Inc. et al. (2003), 330 A.R. 53; 299 W.A.C. 53; 2003 ABCA 219, refd to. [para. 26].

Stobbe v. Paramount Investments Inc. et al. (2013), 566 A.R. 155; 597 W.A.C. 155; 2013 ABCA 384, refd to. [para. 27].

3464920 Canada Inc. v. Strother et al., [2007] 2 S.C.R. 177; 363 N.R. 123; 241 B.C.A.C. 108; 399 W.A.C. 108; 2007 SCC 24, refd to. [para. 28].

Guerin v. Canada, [1984] 2 S.C.R. 335; 55 N.R. 161, refd to. [para. 31].

Manitoba Metis Federation Inc. v. Canada (Attorney General), [2013] 1 S.C.R. 623; 441 N.R. 209; 291 Man.R.(2d) 1; 570 W.A.C. 1; 2013 SCC 14, appld. [para. 32].

Little Salmon/Carmacks First Nation et al. v. Beckman et al., [2010] 3 S.C.R. 103; 408 N.R. 281; 295 B.C.A.C. 1; 501 W.A.C. 1; 2010 SCC 53, refd to. [para. 37].

R. v. Nikal (J.B.), [1996] 1 S.C.R. 1013; 196 N.R. 1; 74 B.C.A.C. 161; 121 W.A.C. 161, refd to. [para. 39].

R. v. Agawa (1988), 28 O.A.C. 201; 65 O.R.(2d) 505 (C.A.), refd to. [para. 39].

Ironside et al. v. Smith (1998), 223 A.R. 379; 183 W.A.C. 379; 1998 ABCA 366, refd to. [para. 53].

Quebec (Attorney General) v. Moses et al., [2010] 1 S.C.R. 557; 401 N.R. 246; 2010 SCC 17, refd to. [para. 58].

Central Trust Co. v. Rafuse and Cordon, [1986] 2 S.C.R. 147; 69 N.R. 321; 75 N.S.R.(2d) 109; 186 A.P.R. 109, refd to. [para. 60].

Hodgkinson v. Simms et al., [1994] 3 S.C.R. 377; 171 N.R. 245; 49 B.C.A.C. 1; 80 W.A.C. 1, refd to. [para. 63].

Hospital Products Ltd. v. United States Surgical Corp. (1984), 156 C.L.R 41 (H.C.A.), refd to. [para. 65].

Cadbury Schweppes Inc. et al. v. FBI Foods Ltd. et al., [1999] 1 S.C.R. 142; 235 N.R. 30; 117 B.C.A.C. 161; 191 W.A.C. 161, refd to. [para. 65].

Beattie v. Canada, [2004] 4 F.C.R. 540; 252 F.T.R. 174; 2004 FC 674, affd. (2005), 274 F.T.R. 12; 2005 FC 715, refd to. [para. 68].

Child and Family Services of Southeast Manitoba et al. v. Canada (Attorney General), [1997] 9 W.W.R. 236; 120 Man.R.(2d) 114 (Q.B.), refd to. [para. 68].

Haida Nation v. British Columbia (Minister of Forests) et al., [2004] 3 S.C.R. 511; 327 N.R. 53; 206 B.C.A.C. 52; 338 W.A.C. 52; 2004 SCC 73, refd to. [para. 69].

Jirna Ltd. v. Mister Donut of Canada Ltd., [1975] 1 S.C.R. 2, refd to. [para. 70].

Alberta Union of Provincial Employees v. United Nurses of Alberta, Local 168 et al. (2009), 448 A.R. 101; 447 W.A.C. 101; 1 Alta. L.R.(5th) 217; 2009 ABCA 33, leave to appeal refused [2009] 1 S.C.R. v; 396 N.R. 397; 260 O.A.C. 394, refd to. [para. 70].

R. v. Marshall (D.J.), Jr., [1999] 3 S.C.R. 456; 246 N.R. 83; 178 N.S.R.(2d) 201; 549 A.P.R. 201, refd to. [para. 72].

Mitchell and Milton Management Ltd. v. Peguis Indian Band et al., [1990] 2 S.C.R. 85; 110 N.R. 241; 67 Man.R.(2d) 81, refd to. [para. 72].

Reference Re Compulsory Arbitration, [1987] 1 S.C.R. 313; 74 N.R. 99; 78 A.R. 1, refd to. [para. 72].

Reference Re Public Service Employee Relations (Act) (Alta.) - see Reference Re Compulsory Arbitration.

Delgamuukw et al. v. British Columbia et al., [1997] 3 S.C.R. 1010; 220 N.R. 161; 99 B.C.A.C. 161; 162 W.A.C. 161, refd to. [para. 77].

Bank of America Canada v. Mutual Trust Co. et al., [2002] 2 S.C.R. 601; 287 N.R. 171; 159 O.A.C. 1; 2002 SCC 43, refd to. [para. 79].

Attorney General v. Blake, [2001] 1 A.C. 268 (H.L.), refd to. [para. 81].

Dolly Varden Mines Ltd. (N.P.L.) v. Sunshine Exploration Ltd., [1970] S.C.R. 2, refd to. [para. 82].

Waterman v. IBM Canada Ltd., [2013] 3 S.C.R. 985; 452 N.R. 207; 347 B.C.A.C. 43; 593 W.A.C. 43, refd to. [para. 84].

Fidler v. Sun Life Assurance Co. of Canada, [2006] 2 S.C.R. 3; 350 N.R. 40; 227 B.C.A.C. 39; 374 W.A.C. 39; 2006 SCC 30, refd to. [para. 85].

Keays v. Honda Canada Inc., [2008] 2 S.C.R. 362; 376 N.R. 196; 239 O.A.C. 299; 2008 SCC 39, refd to. [para. 85].

Jarvis v. Swan Tours Ltd., [1973] Q.B. 233 (C.A.), refd to. [para. 85].

Dasham Carriers Inc. v. Gerlach et al. (2013), 313 O.A.C. 95; 2013 ONCA 707, refd to. [para. 85].

B.M.P. Global Distribution Inc. et al. v. Bank of Nova Scotia et al., [2009] 1 S.C.R. 504; 386 N.R. 296; 268 B.C.A.C. 1; 452 W.A.C. 1; 2009 SCC 15, refd to. [para. 85].

Metis National Council Secretariat Inc. et al. v. Dumont (2008), 236 Man.R.(2d) 17; 448 W.A.C. 17; 305 D.L.R.(4th) 356; 2008 MBCA 142, refd to. [para. 85].

Place Concorde East Limited Partnership et al. v. Shelter Corp. of Canada Ltd. et al. (2006), 211 O.A.C. 141; 270 D.L.R.(4th) 181 (C.A.), refd to. [para. 85].

P1 et al. v. Bedfordshire County Council, [1995] 2 A.C. 633; 185 N.R. 173 (H.L.), refd to. [para. 87].

X (Minors) v. Bedfordshire County Council - see P1 et al. v. Bedfordshire County Council.

Phelps v. London Borough of Hillingdon, [2001] 2 A.C. 619; 261 N.R. 201 (H.L.), refd to. [para. 87].

Hamilton v. Open Window Bakery Ltd. et al., [2004] 1 S.C.R. 303; 316 N.R. 265; 184 O.A.C. 209; 2004 SCC 9, refd to. [para. 96].

Agribrands Purina Canada Inc. v. Kasamekas et al. (2011), 278 O.A.C. 363; 106 O.R.(3d) 427; 2011 ONCA 460, refd to. [para. 96].

Bhasin v. Hrynew et al. (2013), 544 A.R. 28; 567 W.A.C. 28; 84 Alta. L.R.(5th) 68; 2013 ABCA 98, refd to. [para. 96].

Attorney General v. Blake, [2000] 4 All E.R. 385; [2000] UKHL 45, refd to. [para. 126].

Desoto Resources Ltd. v. Encana Corp. et al. (2011), 513 A.R. 72; 530 W.A.C. 72; 2011 ABCA 100, refd to. [para. 129].

Trico Developments Ltd. v. 5117089 Manitoba Ltd. (2009), 236 Man.R.(2d) 91; 448 W.A.C. 91; 2009 MBCA 3, refd to. [para. 130].

Lameman et al. v. Canada (Attorney General) et al., [2008] 1 S.C.R. 372; 372 N.R. 239; 429 A.R. 26; 421 W.A.C. 26; 2008 SCC 14, refd to. [para. 131].

DaimlerChrysler Canada Inc. v. Associated Bailiffs & Co., [2005] O.T.C. Uned. 644; 2005 CarswellOnt 3007 (Sup. Ct.), refd to. [para. 132].

Sunshine Exploration Ltd. v. Dolly Varden Mines Ltd., [1970] S.C.R. 2; 8 D.L.R.(3d) 441, refd to. [para. 138].

Ward v. Vancouver (City) et al., [2010] 2 S.C.R. 28; 404 N.R. 1; 290 B.C.A.C. 222; 491 W.A.C. 222; 2010 SCC 27, refd to. [para. 148].

Taunoa v. The Attorney-General, [2007] N.Z.S.C. 70, refd to. [para. 148].

Wertheim v. Chicoutimi Pulp Co., [1911] A.C. 301 (P.C.), refd to. [para. 170].

Semiahmoo Indian Band et al. v. Canada, [1998] 1 F.C. 3; 215 N.R. 241 (F.C.A.), refd to. [para. 198].

Chippewas of Sarnia Band v. Canada (Attorney General) et al. (2000), 139 O.A.C. 201; 51 O.R.(3d) 641; 195 D.L.R.(4th) 135 (C.A.), refd to. [para. 198].

Cree Regional Authority v. Quebec (Procureur général), [1992] 1 F.C. 440; [1991] 4 C.N.L.R. 84; 47 F.T.R. 251, refd to. [para. 200].

Cree School Board v. Canada (Attorney General), [1998] 3 C.N.L.R. 24, affd. [2002] C.N.R.L. 112 (Que. C.A.), leave to appeal refused [2001] C.S.C.R. No. 563 (S.C.C.), refd to. [para. 200].

Authors and Works Noticed:

Fridman, Gerald Henry Louis, The Law of Contract in Canada (4th Ed. 1999), p. 789 [para. 150].

Waddams, Stephen M., The Law of Contracts in Canada (2012 Looseleaf Release), p. 1.2390 [para. 150].

Counsel:

D.E. Brown, J. Aldridge, Q.C., and M. Belleau, for the respondent;

K.P. Kimmis and S. Read, for the appellant;

J. Bakkos, for the third party (watching brief).

This appeal was heard by Hunt, O'Brien and Slatter, JJ.A., of the Nunavut Court of Appeal. The court delivered the following reasons for judgment on April 23, 2014, which included the following opinions:

Slatter, J.A. (O'Brien, J.A, concurring) - see paragraphs 1 to 100;

Hunt, J.A., dissenting - see paragraphs 101 to 218.