Akulukjuk v. Canada, 2014 NUCJ 37

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: Akulukjuk v.

Canada, 2014 NUCJ 37 Date: 20141212 Docket: 010-10-309-CVC Registry: Iqaluit Plaintiff: Raymond Akulukjuk -and- Defendant: Ashley Browne, Russell Akeeagok, The Royal Canadian Mounted Police, Her Majesty the Queen in Right of Canada, as Represented by the Attorney General of Canada, The Commissioner of Nunavut, as Represented by the Attorney General Of Nunavut, Pairjait Tigumivik Society Operating as Tammaativvik Medical Boarding Home And Alookie Itorcheak ________________________________________________________________________ Before: The Honourable Madam Justice Cooper Counsel (Plaintiff): Self-Represented Counsel (Defendant - Nunavut): Ronald Nelson Counsel (Defendant – Boarding Home): Sharon Stefanyk Location Heard: Iqaluit, Nunavut Date Heard: December 8, 2014 Matters: Application for

Summary Dismissal/Application to Dismiss for Want

of Prosecution REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication) I. INTRODUCTION [ 1 ] This matter came before me in Chambers on two applications: 1. An application by the defendant, the Commissioner of Nunavut, as represented by the Attorney General of Nunavut (hereinafter referred to as Nunavut), for

summary dismissal of the action as against Nunavut; 2. An application by the defendant Paijait Tigumivik Society operating as Tammaativvik Medical Boarding Home (hereinafter referred to as the Boarding Home), for a dismissal of the action for want of prosecution or, alternatively, an Order setting deadlines for the expeditious trial of the action. [ 2 ] For the purposes of this decision the defendants Ashley Browne, Russell Akeeagok, the Royal Canadian Mounted Police and the Attorney General of Canada will be referred to as “Canada”. II. BACKGROUND [ 3 ] The plaintiff is a resident of Arctic Bay, Nunavut.

The Statement of Claim alleges that he was staying at the Boarding Home when he was assaulted by one of the employees of the Boarding Home.

The Royal Canadian Mounted Police (RCMP) were called, the plaintiff was taken in to custody, and it is alleged that while in police custody he was assaulted by two officers. [ 4 ] The history of this case is as follows: May 7, 2010: Statement of Claim filed May 4, 2011: Time extended for service of Statement of Claim May 6, 2011: Statement of Claim served on all defendants but one who was not yet identified Sept. 28, 2011: Statement of Defence filed by Nunavut Oct. 3, 2011: Statement of Defence filed by Boarding Home Oct. 7, 2011: Notice of Cross-Claim filed by Nunavut Oct. 17, 2011: Statement of Defence filed by Canada Oct. 19, 2011: Time extended for service of Statement of Claim Mar. 13, 2012: Notice of Cross-Claim filed by Boarding Home May 1, 2012: Time extended for service of Statement of Claim May 17, 2012: Statement as to Documents filed by plaintiff Nov. 17, 2012: Statement as to Documents filed by Canada Nov. 30, 2012: Time extended for service of Statement of Claim April 18, 2013: Amended Statement of claim filed Oct. 18, 2013: Plaintiff's counsel filed Notice of Ceasing to Act

Nov. 22, 2013: Canada filed Amended Statement of Defence [ 5 ] Numerous extensions were granted extending the time for service of the Statement of Claim because one of the defendants, subsequently identified as Alookie Itorcheak, could not be identified and served. [ 6 ] The plaintiff was served with Notice of these applications to dismiss but has not filed anything or made an appearance. III. APPLICATION BY NUNAVUT FOR

SUMMARY DISMISSAL [ 7 ] Pursuant to Nunavut Rules of Court, N.W.T. R-010-96, Rule 27, as duplicated for Nunavut by s.29 of the Nunavut Act, S.C. 1993, c. 28 [Rules], Rules 175 and 176, the Court shall grant

summary judgment (dismissal) where it is satisfied that there is no genuine issue for trial. In support of its application, Nunavut relies upon the Affidavit of an employee of the Department of Finance. The Affidavit speaks to the relationship between Nunavut and the Boarding Home. The Affidavit states that Nunavut leased the building to the Boarding Home, but was not involved in its operation or maintenance and did not employ any of the staff. [ 8 ] The Statement of Claim does not ground its claim against Nunavut on the landlord/tenant relationship between Nunavut and the Boarding Home.

The claim is based on the statutory responsibility of Nunavut to provide health and policing services and the delegation of some or all of those responsibilities to other agencies. Nothing in the material filed by Nunavut on the application for

summary dismissal speaks to that aspect of the claim. There is no evidence upon which the Court can determine that there is no genuine issue for trial. Accordingly, the application is dismissed. IV. APPLICATION BY THE BOARDING HOME FOR DISMISSAL / DIRECTION [ 9 ] Rule 327(1) of the Rules provides:

(1) A party may at any time apply to the Court for a determination that there has been a delay on the part of another party in an action or proceeding and where the Court so determines, the Court (

a) may, with or without terms, dismiss the action or proceeding for want of prosecution or give direction for the speeding determination of the action or proceeding, [ 10 ] Rules 327(4) of the Rules provides:

(4) Where, in determining an application under this rule, the Court finds that the delay in action or proceeding is inordinate and inexcusable, that delay shall be prima facie evidence of serious prejudice to the party bringing the application. [ 11 ] In support of the application, the Boarding Home has filed affidavit material setting out the progress of the litigation to date.

There is no evidence as to any specific or exceptional prejudice flowing from delay in the proceedings. [ 12 ] The delay in this matter is not extraordinary or inexcusable, particularly given the number of parties involved, the geographic logistics of the jurisdiction, and the fact that the plaintiff is now self-represented. [ 13 ] In my view, this is not a case that gives rise to the rebuttal presumption of prejudice as provided for in Rule 327(4).

V. CONCLUSION [ 14 ] The parties would benefit from having some deadlines to work towards so that the matter does not languish. Accordingly, the following steps must be taken in accordance with the

schedule indicated as follows: March 27, 2015: Remaining defendants to file and serve Statement as to Documents July 3, 2015: Production of documents to be completed December 18, 2015: Examinations for Discovery/Interrogatories to be completed March 31, 2016: Plaintiff to provide expert report June 30, 2016: Defendants to provide expert reports October 31, 2016: Certificate of Readiness to be filed [ 15 ] Of course, nothing in this

schedule obliges a party to undertake a step in the litigation which they might wish to waive, such as examinations for discovery. [ 16 ] Any party may apply to the Court for an extension of the time or the parties may consent in writing to an extension. [ 17 ] Although this decision deals with two separate applications by different defendants, I direct that one Order capturing both applications be prepared. The requirement to circulate a draft Order to the plaintiff is waived. [ 18 ] The plaintiff is currently self-represented.

Leave is granted to serve the Plaintiff with the Order and a file copy of this Memorandum of Judgment by registered mail. Dated at the City of Iqaluit this 12th day of December, 2014 ___________________ Justice S. Cooper Nunavut Court of Justice