P.S v. The Commissioner of Nunavut and Her Majesty the Queen in the Right of Ontario, 2022 NUCJ 18

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: P.S v.

The Commissioner of Nunavut and Her Majesty the Queen in the Right of Ontario, 2022 NUCJ 18 Date: 2022-04-13 Docket: 03-21-147-CVC Registry: Iqaluit Plaintiff/Respondent P.S -and- Defendants/Applicants The Commissioner of Nunavut and Her Majesty the Queen in the Right of Ontario __________________________________________________________________ Before: Justice Charlesworth Counsel (Plaintiff): Jenna Broomfield Counsel (Defendant Nunavut): William Lu Counsel (Defendant Ontario): Nansy Ghobrial Location Heard: Iqaluit, Nunavut Date Heard: April 13, 2022 Matters: Motions seeking dismissal of plaintiff’s claim on basis of jurisdiction and Crown immunity REASONS FOR DECISION (NOTE: This document may have been edited for publication)

DISCLAIMER PAGE Anonymized Judgment Disclaimer : This decision has been anonymized at the discretion of the authoring Justice to protect vulnerable parties.

I. INTRODUCTION [ 1 ] The defendant Governments of Nunavut (GN) and Ontario (Ontario) have each brought a motion seeking the dismissal of the plaintiff’s claim as against them. The GN seeks dismissal based on jurisdiction and argues “there is a lack of real and substantial connection between this Court (NCJ) and the subject matter of the dispute”.

Ontario has asserted that, as a sovereign, it enjoys crown immunity “which provides that absent permission from the Crown in the form of a fiat or legislation waiving its immunity, the Crown is immune from suit (in Nunavut).” [ 2 ] The plaintiff disagrees with the GN’s position on jurisdiction. The plaintiff also argues the case at bar is one where “in the interest of justice and fairness for all, the strict rules relating to Crown Immunity should be relaxed to a limited extent to ensure the respondent is not denied his fundamental constitutional right to access to justice”. II.

OVERVIEW OF FACTS [ 3 ] The plaintiff, now 36 years of age, filed suit against the defendants seeking general, special, aggravated, and exemplary or punitive damages stemming from an alleged sexual assault the plaintiff suffered while incarcerated in Ontario in or around 2003 or 2004. [ 4 ] The plaintiff claims that, while under the age of majority, he was taken into custody in Nunavut under the Mental Health Act , R.S.N.W.T. (Nu) 1988 for the purpose of receiving mental health treatment.

The plaintiff did not consent to being placed into such custody. [ 5 ] Under the authority of the Mental Health Act the plaintiff was removed from his community and Nunavut and sent to a mental health facility in Ontario. During his stay in Ontario the plaintiff alleges he engaged in a fight with another resident of the institution. The fight resulted in criminal charges against the plaintiff and the plaintiff being remanded into the custody of Ontario corrections while he waited for trial. [ 6 ] The plaintiff pleads he was convicted and sentenced to a jail term for the fight with the other resident.

The plaintiff further pleads that upon the expiration of the warrant of committal (the end of the term of imprisonment) he was mistakenly kept incarcerated in Ontario. During this period of alleged wrongful imprisonment, the plaintiff was allegedly placed into a cell with a known sex offender who then sexually assaulted the plaintiff. III. ISSUES [ 7 ] The issues present on the motions are: A. Should the claim be struck, and the action dismissed as against Ontario on the basis that the Nunavut Court of Justice lacks jurisdiction over Ontario? And, B.

Should the Nunavut Court of Justice assume and exercise jurisdiction over the subject matter of the dispute? IV. ANALYSIS [ 8 ] Ontario can rely on the well-established legal principle relating to Crown immunity that serves to insulate a sovereign jurisdiction from facing legal action in another jurisdiction. Ontario has chosen not to waive such immunity to enable the plaintiff to sue Ontario in Nunavut. This immunity cannot be ignored by this Court or set aside because of access to justice concerns.

The plaintiff’s action against Ontario in Nunavut is dismissed and the plaintiff must commence an action in the Ontario Superior Court of Justice against Ontario should he choose to continue suit against that defendant. Ontario has not sought costs relating to this action and no costs will be ordered.

[9] The plaintiff is an Inuk who currently lives, and at all material times related to the action, lived, in a community in Nunavut. Theplaintiff has sued the GN alleging the GN had an obligation to ensure he was not placed in harm’s way while in Ontario as he was sentthere, without his consent, under Nunavut’s Mental Health Act.

The plaintiff claims the GN’s errors and omissions in ensuring his safetyresulted in his wrongful imprisonment and the consequent alleged rape. [10] The plaintiff has clearly pled a case establishing the minimum necessary connection to Nunavut that provides jurisdiction to theNunavut Court of Justice to hear this case. The plaintiff resides in Nunavut and has done so for his entire life absent his brief time spentin Ontario initiated through the Mental Health Act. The GN administers and governs the Territory and is responsible for actions andomissions of its agents and employees.

The plaintiff has clearly met the real and substantive connection test established by the SCC inVan Breda v. Village Resorts Ltd., 2012 SCC 17 (para 90). [11] Having found the NCJ has jurisdiction over the claim between the plaintiff and defendant GN, I move now to a discussion as towhether the NCJ should exercise jurisdiction. [12] In the 2018 Supreme Court of Canada decision Haaretz.com v.

Goldhar, 2018 SCC 28 Cote J. wrote, in relation to whencourts should choose to exercise jurisdiction in a forum non conveniens analysis, the following: The purpose of the forum non conveniens analysis is to temper any potential rigidity in the rules governing the assumption of jurisdictionand “to assure fairness to the parties and the efficient resolution of the dispute” (Van Breda, at para. 104). This is necessary given thisCourt’s recognition that jurisdiction “may sometimes be established on a rather low threshold” (Van Breda, at para. 109).

By focusing“on the contexts of individual cases”, the forum non conveniens stage plays an important role in striking a balance between order andfairness (Van Breda, at para. 105). [13] The plaintiff, at paragraph 17 of its motion brief, listed non-exhaustive “circumstances relevant to the proceeding” which the SCCarticulated in Van Breda that assist courts in determining when to exercise jurisdiction:

a) the comparative convenience and expense for the parties to the proceeding and for their witnesses, in litigating in the court or in anyalternative forum;

b) the law to be applied to issues in the proceeding;

c) the desirability of avoiding multiplicity of legal proceedings;

d) the desirability of avoiding conflicting decisions in different courts;

e) the enforcement of an eventual judgment; and

f) the fair and efficient working of the Canadian legal system as a whole. [s. 11(2)] [14] I find the NCJ should exercise its jurisdiction over this claim as it offers a proper venue for litigants, domiciled in the Territory, tolitigate an alleged failure of an obligation owed by the GN to an individual. [15] The plaintiff has two distinct causes of action against the two defendants stemming from the same alleged illegal act.

The claimagainst Nunavut stems from the duty allegedly owed to the plaintiff by virtue of him being taken into custody under the Mental HealthAct and the failure of Nunavut to have him promptly returned to the Territory once his sentence expired. Any failure of a duty owed bythe GN to the plaintiff proven at trial can stand separate and apart from the claim against Ontario, and vice versa.

[ 16 ] The convenience of having the claim against the GN brought in Nunavut militates in favour of the exercise of jurisdiction. There is no legal issue with the NCJ determining liability and damages as claimed by the plaintiff for the alleged breach of a duty owed by the GN to the plaintiff. The plaintiff may choose to continue a separate action against Ontario or may not if satisfied with however the GN claim resolves.

Enforcement of a decision against the GN is not in issue and it is a fair and an efficient operation of our legal system to have a lifelong resident of Nunavut litigate against the GN in the NCJ. [ 17 ] The defendant GN’s motion challenging the plaintiff’s claim as against the GN is dismissed. [ 18 ] Each party will bear their own costs of this motion. Dated at the City of Iqaluit this 14th day of April 2022, ___________________ Justice S. Charlesworth Nunavut Court of Justice