Nunavunmi Apiqhuidjutainut Uuktuffaarutit
Nunavut Court of Appeal
Cour d'appel du Nunavut
Citation: NTI v Nunavut, 2024 NUCA 2
Date: 20240516
Nunavut Tunngavik Incorporated, Bernice Tujjaaqtuqaq Clarke
and Lily Anne Maniapik
Appellants
The Commissioner of Nunavut as represented by the Government of Nunavut and the Government of Nunavut as represented by the Attorney General
Respondents
_______________________________________________________
The Court:
The Honourable Justice Dawn Pentelechuk
The Honourable Justice Suzanne Duncan
The Honourable Justice Alice Woolley
_______________________________________________________
The Honourable Justice S. Cooper
Dated the 10th day of January, 2024
Filed the 10th day of January, 2024
(2024 NUCJ 1, Docket: 08-21-463-CVC)
_______________________________________________________
Memorandum of Judgment _______________________________________________________
The Court:
[1] The appellants (collectively, NTI) appeal the decision of the case management judge granting the respondents (Nunavut) a partial stay of proceedings pending a decision from this Court.
[2] This action concerns Inuktut language rights in the territory of Nunavut. At present, Inuktut language education is offered to students only from kindergarten to grade three. NTI filed an Amended Statement of Claim on January 31, 2022, alleging that amendments in 2019 to the Inuit Language Protection Act, SNu 2008, c 17 and the Education Act, SNu 2008, c 15 discriminate against the Inuit contrary to s 15 of the Charter. Prior to these amendments, these Acts set July 1, 2019 as the deadline to fully implement bilingual Inuit language education in Nunavut for students in kindergarten to grade 12.
[3] In August 2022, Nunavut brought an application to strike the action on the basis that language of instruction rights do not fall within s 15 of the Charter. The application was dismissed on March 2, 2023: Nunavut Tunngavik Incorporated et al v The Commissioner of Nunavut et al, 2023 NUCJ 5. Nunavut’s appeal of that decision was heard by this Court in February 2024 and is under reserve.
[4] Nunavut applied for a stay of proceedings pending the outcome of its appeal, including any potential further appeal to the Supreme Court of Canada. On January 10, 2024, the case management judge granted a partial stay of proceedings until the issuance of the appeal decision but not pending any potential proceedings before the Supreme Court of Canada: Nunavut Tunngavik Incorporated et al v The Commissioner of Nunavut et al, 2024 NUCJ 1 (Stay Decision). NTI appeals from this decision, arguing that the case management judge erred in her application of the test for a stay.
[5] The tripartite test for a stay is well-known. The applicant has the onus of establishing: 1) a serious question to be tried; 2) irreparable harm if the application is refused; and 3) that the balance of convenience favours granting the stay: RJR-MacDonald Inc v Canada (Attorney General),
[6] The case management judge found a serious issue to be tried but concluded that Nunavut had failed to demonstrate irreparable harm if the stay was not granted. She nonetheless granted the stay on the basis that the balance of convenience – which favoured Nunavut – “weighs heavily in this application”: Stay Decision at para 29. The case management judge reasoned that “it is difficult to justify the time and expense required for document discovery when a decision can be expected that may be dispositive”: Stay Decision at para 27.
[7] On appeal, NTI argues the stay application should have been dismissed given Nunavut’s failure to establish the “irreparable harm” component of the test. This is because the test is conjunctive in nature: an applicant must satisfy all three elements. NTI argues that failure to satisfy any one element accordingly means that a stay of proceedings cannot be granted, and the case management judge erred in principle in concluding otherwise.
[8] Nunavut argues that a finding of irreparable harm is “not strictly necessary in the present circumstances” and frames the issue as an exercise of discretion by the case management judge, grounded in the court’s authority to control its own processes. Such decisions are entitled to a high degree of deference.
[9] A stay of proceedings is an extraordinary remedy that requires an applicant to demonstrate all three elements of the RJR-MacDonald test: R v Canadian Broadcasting Corp,
[10] Nunavut attempts to justify the approach taken below by noting that the three factors from RJR-MacDonald “are not to be treated as watertight compartments and the strength of one may compensate for weaknesses of another”: Livent Inc v Deloitte & Touche,
[11] However, it does not follow from the interconnected nature of the elements of the test that a stay can be granted without each requirement being fulfilled. Moreover, though “the weakness of the irreparable harm factor” will not preclude the granting of a stay where the balance of convenience otherwise justifies the relief, “weak” evidence of irreparable harm must still be sufficient to support a finding of irreparable harm: Livent at paras 11-12.
[12] Accordingly, while each element of the test may be given different weight depending on the circumstances, and the second and third elements are often considered together, this does not obviate the need to lead sufficient evidence to establish each of the elements of the RJR-MacDonald test. The case management judge fell into error by allowing the question of weight to overtake the conjunctive nature of the test, incorrectly finding that the overall inconvenience to Nunavut could justify a stay notwithstanding that a requirement of the test had not been met.
[13] Nunavut further argues – without providing authority for the proposition – that NTI’s substantive rights are not affected by the stay; rather, both parties are relieved from the considerable time and expense of advancing the litigation in relation to a trial that may never come. On its face, this argument holds appeal. But while parties can mutually agree to hold all litigation steps in abeyance while applications to strike or applications for summary judgment wind their way through the courts, absent such agreement, the action is NTI’s to prosecute. It is for NTI to calculate the risk of taking pre-trial steps in the face of Nunavut’s motion to strike its claim; Nunavut cannot halt further litigation steps simply because they are pursuing an application to strike that may or may not be successful.
[14] The contrary arguments to Nunavut’s practicality argument is equally, if not more, compelling. First, the Rules of the Supreme Court of the Northwest Territories, NWT Reg (Nu) 010-96 [Rules][1] do not provide that the filing of an application to strike or dismiss operates as an automatic stay of proceedings. To the contrary, a plaintiff’s action can be dismissed for want of prosecution “where for five or more years no step has been taken that materially advances the action or proceeding”: Rules, Rule 327(1). But even if prosecuted diligently, lawsuits take time. To halt this action pending all available appeals being exhausted could add years to a lawsuit that already evidences every hallmark of lengthy litigation. This additional delay increases the risk of prejudice from document loss or destruction, or the death or disappearance of important witnesses. Justice delayed is often justice denied.
[15] As a consequence, the appeal is allowed, and the partial stay set aside. We assume the parties have filed a litigation plan as directed by the case management judge. They are directed to attend before her to determine next steps.
Memorandum filed at Iqaluit, Nunavut
Pentelechuk, J.A.
Authorized to sign for: Duncan, J.A.
Authorized to sign for: Woolley J.A.
Appearances:
T. Dickson
L.N. Koerner-Yeo
J.M. Black
for the Appellants
M. Faille
A. Christoff
for the Respondents
[1] Despite its title, the Rules remain a regulation under the Nunavut Judicature Act, CSNu, c J-10 and apply to the Nunavut Court of Justice.
AVIS :
Le lecteur doit s'assurer que les décisions consultées sont finales et sans
appel; la consultation
du plumitif s'avère une précaution utile.