Nunavut Tunngavik Inc. v. Canada (Attorney General) et al., 2009 NUCA 2

• Judge: Charbonneau, Watson and Slatter, JJ.A.
• Court: Nunavut Court of Appeal (Canada)
• Case Date: May 12, 2009
• Jurisdiction: Nunavut
• Citations: 2009 NUCA 2;(2009), 457 A.R. 320 (CA)

Nunavut Tunngavik Inc. v. Can. (A.G.) (2009), 457 A.R. 320 (CA);

      457 W.A.C. 320

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. JN.070

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 the Government of Nunavut and the Government of Nunavut (third party)

(08-08-005 CAP; 2009 NUCA 2)

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

Nunavut Court of Appeal

Charbonneau, Watson and Slatter, JJ.A.

June 2, 2009.

Summary:

Nunavut Tunngavik Inc. (Tunngavik) was created to assist in the implementation of a comprehensive Land Claims Agreement negotiated by the Inuit and the Government of Canada in 1993. The Lands Claims Agreement was ratified by the Nunavut Land Claims Agreement Act, S.C. 1993, c. 29. The Agreement called for the creation of a new territory, Nunavut, and that Nunavut would have its own representative government. This happened in 1998. Tunngavik sued Canada for breach of the Agreement. Canada replied that the Government of Nunavut was responsible for performing some of the obligations that were said to be breached, or received some of the funding designated for the performance of the Agreement, and that the Government of Nunavut should therefore be a party defendant. Canada applied to have the Government of Nunavut added as a defendant.

The Nunavut Supreme Court, in a decision reported 58 C.P.C.(6th) 46, dismissed the application, ruling that the Government of Nunavut should only be a third party. Canada appealed.

The Nunavut Court of Appeal dismissed the appeal.

Practice - Topic 673

Parties - Adding or substituting parties - Adding or substituting defendants - Circumstances when denied - Nunavut Tunngavik Inc. (Tunngavik) was created to assist in the implementation of a comprehensive Land Claims Agreement negotiated by the Inuit and the Government of Canada in 1993 - The Agreement called for the creation of a new territory, Nunavut, and that Nunavut would have its own representative government - This happened in 1998 - Tunngavik sued Canada for breach of the Agreement - Canada replied that the Government of Nunavut was responsible for performing some of the obligations that were said to be breached, or received some of the funding designated for the performance of the Agreement, and that the Government of Nunavut should therefore be a party defendant - Canada applied to have the Government of Nunavut added as a defendant - The chambers judge dismissed the application, ruling that Canada had not met the test for adding a defendant - There was a supportable argument that Canada and the Government of Nunavut had joint responsibilities under the Agreement - However, there were no facts pled in the statement of claim that would entitle Tunngavik to relief against the Government of Nunavut - In addition to adding the Government of Nunavut as a defendant, it would be necessary to order Tunngavik to make a number of amendments to trigger a claim against that new defendant - The chambers judge questioned the jurisdiction to force a plaintiff to add substantive claims - There was also the viable alternative of issuing a third party notice - The chambers judge concluded that Canada should add the Government of Nunavut as a third party, if it wished - The Nunavut Court of Appeal upheld the decision, adding that the defendant's wide ability to plead under rule 142(1) of the Rules of Court (N.W.T.) enabled it to ensure that the issues were covered, and allowed the third party to fully respond, while preserving the plaintiff's ability to plead its own claim as it chose - See paragraphs 1 to 41.

Practice - Topic 1120

Parties - Third party or subsequent party procedure - When available - General - [See Practice - Topic 673 ].

Cases Noticed:

Housen v. Nikolaisen 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. 23].

Indian Residential Schools, Re (2001), 286 A.R. 307; 253 W.A.C. 307; 96 Alta. L.R.(3d) 16; 2001 ABCA 216, refd to. [para. 23].

Burtch v. Barnes Estate et al. (2006), 209 O.A.C. 219; 80 O.R.(3d) 365; 27 C.P.C.(6th) 199 (C.A.), refd to. [para. 23].

Bodnar et al. v. Cash Store Inc. et al., [2008] B.C.A.C. Uned. 46; 2008 BCCA 192, refd to. [para. 23].

Amon v. Tuck (Raphael) & Sons Ltd., [1956] 1 Q.B. 357 (Q.B.), consd. [para. 27].

Decock et al. v. Alberta et al. (2000), 255 A.R. 234; 220 W.A.C. 234; 79 Alta. L.R.(3d) 11; 2000 ABCA 122, refd to. [para. 30].

Edmonton Friends of the North Environmental Society et al. v. Canada (Minister of Western Diversification), [1991] 1 F.C. 416; 114 N.R. 153; 73 D.L.R.(4th) 653 (F.C.A.), refd to. [para. 31].

Delgamuukw v. British Columbia, 1986 CarswellBC 1166 (C.A.), refd to. [para. 31].

Freudmann-Cohen et al. v. Tran et al. (2004), 186 O.A.C. 9; 70 O.R.(3d) 667; 238 D.L.R.(4th) 428 (C.A.), refd to. [para. 36].

Leblanc et al. v. Canada et al. (2005), 339 N.R. 244; 2005 FCA 234, refd to. [para. 38].

Toronto (City) v. Canadian Union of Public Employees, Local 79 et al., [2003] 3 S.C.R. 77; 311 N.R. 201; 179 O.A.C. 291; 2003 SCC 63, refd to. [para. 38].

Alberta (Treasury Branches) v. Toth et al. (2006), 393 A.R. 269; 2006 ABQB 83, refd to. [para. 38].

Double N Earthmovers Ltd. v. Edmonton (City) et al. (2005), 363 A.R. 201; 343 W.A.C. 201; 41 Alta. L.R.(4th) 205; 2005 ABCA 104, affd. [2007] 1 S.C.R. 116; 356 N.R. 211; 401 A.R. 329; 391 W.A.C. 329; 2007 SCC 3, refd to. [para. 39].

Burry et al. v. Centennial Properties Ltd. et al. (1979), 38 N.S.R.(2d) 450; 69 A.P.R. 450; 106 D.L.R.(3d) 619 (C.A.), refd to. [para. 39].

Corda v. Koszowski (1956), 64 Man.R.(2d) 232; 22 W.W.R.(N.S.) 75 (C.A.), refd to. [para. 39].

Statutes Noticed:

Rules of Court (N.W.T.), rule 142(1) [para. 24].

Authors and Works Noticed:

Louisell and Hazard, Cases and Materials on Pleading and Procedure (4th Ed. 1979), p. 571 [para. 26].

Counsel:

K. Epton and M.E. Annich, for the appellant;

D.E. Brown, for the respondent;

L.Y. Land, for the third party.

This appeal was heard on May 12, 2009, by Charbonneau, Watson and Slatter, JJ.A., of the Nunavut Court of Appeal. The Court of Appeal filed the following memorandum of judgment at Iqaluit, Nunavut, on June 2, 2009.