Plaintiffs: Cameron Delong v. Cecile Guerin, 2017 NUCJ 20

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: Royal Bank of Canada, et al. v. Avva., 2017 NUCJ 20 Date: 20170811 Docket: 08-14-302 08-13-766 Registry: Iqaluit Plaintiff: Royal Bank of Canada -and- Defendant: Ida Avva And between: Plaintiffs: Cameron Delong and Cecile Guerin -and- Defendant: Ida Avva ________________________________________________________________________ Before: The Honourable Mr. Justice Earl Johnson Counsel (Plaintiff): Steven M. Shafir Counsel (Plaintiffs): David A. Stout Counsel (Defendant): Unrepresented Location Heard: Iqaluit, Nunavut Date Heard: August 11, 2017

Matters: Judicature Act, S. 24, 25, 27 Land Titles Act (Nunavut) Rules of Court, S. 318, 558, 559, 560, 561 REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication) I.

INTRODUCTION [ 1 ] The Plaintiffs Cameron Delong and Cecile Guerin (Applicants) commenced legal action against the Defendant Ida Avva on June 26, 2014, seeking specific performance of a written agreement for the purchase of Lot 32, Block 223, Plan 3487 in the City of Iqaluit — known municipally as house 4032 on Anuri Street (The Property) —for the sum of $405,000. [ 2 ] The Plaintiff Royal Bank of Canada (RBC) commenced foreclosure proceedings against the Defendant Ida Avva (Defendant) on December 13, 2013 to enforce the RBC first mortgage against the Property under legal action 08-13-766. [ 3 ] On May 19, 2015, Cooper J. issued an Order Nisi/Order for Sale in the foreclosure action and set a six month redemption period. [ 4 ] The mortgage was not redeemed and the Property was advertised for sale from January 18 to February 22, 2016 but no offers were received.

RBC filed a motion for a Final Order of Foreclosure. The Applicants filed an affidavit in that action on May 2, 2016. That application was adjourned to March 15, 2017 and both Counsel requested a special chambers date to argue both motions. [ 5 ] Seeking the relief discussed below, the Applicants filed an affidavit in action 08-13-766 in response to the RBC application for a Final Order of Foreclosure returnable on May 9, 2016.

Although both motions were argued together, there was no formal Order made to consolidate the actions under Rule 318 of the Rules of the Supreme Court of the Northwest Territories, NWT Reg (Nu) 010-96 [Rules of Court].

I hereby order that the actions be consolidated under the above style of cause. [ 6 ] The Applicants seek Orders that, if a new certificate of title and assignment of lease is issued to RBC, it shall not be free of the caveat filed by the Applicants and that RBC be ordered to transfer title to the Property to the Applicants for the reduced purchase price of $201,174.94. [ 7 ] RBC seeks a Final Order of Foreclosure free and clear of all encumbrances. [ 8 ] James Morton appeared by telephone representing the second mortgagee, Nunavut Housing Corporation (NHC).

He accepted and supported the arguments advanced by the Applicants. [ 9 ] I heard argument on both motions on August 11, 2017 and reserved judgment.

II. ADMISSIBILITY OF CORRESPONDENCE BETWEEN COUNSEL [10] At the hearing before me, the Applicants’ Counsel David Stout (Stout) sought to enter correspondence between him and Mr.Steven Shafir, RBC Counsel in Edmonton (Shafir). Nunavut RBC Counsel Anne Crawford objected because no prior notice wasprovided to her. Her second objection was that the correspondence should not be admitted because the letters were communicationsbetween Counsel attempting to compromise or settle the issues even though there was no statement in the correspondence that the lettersand emails were “without prejudice”.

An examination of the content of the letters clearly shows they were directed at settlement and,therefore, come within the litigation privilege. [11] Stout argues that the lack of the “without prejudice” notation on the correspondence indicates it was not intended to be privileged. [12] I permitted Counsel to file additional affidavits to flesh out all the pertinent letters and electronic communications for myconsideration and subsequent ruling. [13] As stated at paragraph 25 of Bellatrix Exploration Ltd v Penn West Petroleum Ltd, 2013 ABCA 10 , 2013 CarswellAlta76 [Bellatrix], it is not necessary for a party to use the precise words “without prejudice” in order to invoke what is called “settlementprivilege”.

The important thing is to determine the intent of the parties about settling the action: The notation “without prejudice” is not conclusive in establishing privilege. If the contents of a communication are truly in furtherance ofsettlement, and therefore privileged, it makes no difference whether the communication is marked “without prejudice” or not. Acommunication that is not in substance privileged does not become so just because one party places “without prejudice” on it.

Likewise,the absence of the words “without prejudice” means nothing if the communication is truly privileged: see Leonardis v Leonardis, 2003ABQB 577 at para 6, 50 Alta LR (4th) 56; Phillips v Rogers (1988), (AB QB), 92 AR 253, 62 Alta LR (2d)140 (QB); William Allan Real Estate Co v Robichaud (1987), 37 BLR 286, 17 CPC (2d) 138 (Ont HC); Underwood v Cox (1912), (ON SCDC), 21 OWR 757, 26 OLR 303 at 310 (Div Ct); Imperial Oil Ltd v 416169 Alberta Inc, 2002 ABQB 386at para 30, 310 AR 338. [14] Bellatrix noted at paragraph 15 that the three requirements for the privilege were: (

a) the existence, or contemplation, of a litigious dispute; (

b) an express or implied intent that the communication would not be disclosedto the court in the event negotiations failed; and (

c) the purpose of the communication must be to attempt to effect a settlement. [15] In the affidavits, Stout included formal email letters he sent to Shafir dated July 8, 2014, July 31, 2014, January 9, 2015 andNovember 11, 2015. Shafir included his August 4, 2014 informal email response to Stout’s July 31, 2014 letter as well as Stout’sinformal email response to Shafir’s email of August 4, 2014.

Shafir also included a short email exchange between him and Stout datedAugust 7, 2014. [16] Shafir also included the following: his informal email responses dated January 16, 2015 to Stout’s email letter of January 9, 2015;the informal email response of Stout dated January 28, 2015; the informal email response of Shafir dated January 28, 2015; the informalemail response of Stout dated January 29, 2015; the informal email response of Shafir dated January 29, 2015; the informal emailresponse of Stout dated February 6, 2015; and the informal email response of Shafir dated February 6, 2015.

Finally Shafir included aformal email letter he wrote to Stout dated November 13, 2015. [17] The letters from Stout dated July 8 and July 31 informed Shafir that he represented the Applicants and that the Applicants had fileda certificate of lis pendens and were interested in purchasing the Property. Shafir responded by inquiring if Stout’s clients were interestedin purchasing an assignment of the RBC mortgage and Stout acknowledged the receipt of the letter.

Stout responded on August 7 that hisclients might be interested in proceeding in that fashion and Shafir responded by again asking Stout if his clients were interested inpurchasing an assignment of the RBC mortgage. I am satisfied that Counsel were at an early stage of the proceedings and there was nocontemplation of a litigious dispute. The communications did not constitute settlement discussions and were not intended to be withoutprejudice.

These communications are admissible. [18] The informal email exchanges between Shafir and Stout in January and February of 2015 were further preliminary inquiries aboutthe potential common interests of both parties in avoiding the additional costs of proceeding with the foreclosure and providing dateswhen Counsel would be available to discuss the matters raised in the exchanges of August 2014. At this time, there was no contemplationof a litigious dispute and the communications were neither settlement discussions, nor intended to be without prejudice.

They areadmissible. [19] Stout’s formal email letter of November 11, 2015 enclosed a copy of the Default Judgment and Shafir responded on November 13,

2015 by providing a copy of the Order Nisi showing the redemption period. Both Counsel were keeping each other up to date about the status of the actions. Shafir noted that the redemption period would expire on December 2, 2015 and that the Property would be offered for sale for a period of 30 days. He also suggested that the Applicants make an offer in response to the sale posting. There is a hint of contemplation of a dispute but no real settlement discussions. I am satisfied that these letters were not settlement discussions and they were not intended to be without prejudice. They are also admissible. III.

FACTS [ 20 ] The Applicants are foster parents. They entered into the agreement of sale to purchase the Property to allow them to foster additional children in a safe and comfortable environment. For eight years prior to entering into the agreement the Applicants unsuccessfully looked for a house similar to the Property. [ 21 ] On December 14, 2013 Veranova Properties Ltd. (Veranova) was retained to conduct an occupancy check of the Property. Veranova reported on December 20, 2013 that the Property was occupied and inquired if bi-weekly inspections were required.

On December 27, 2013, RBC instructed Veranova to carry out bi-weekly inspections. [ 22 ] The sale did not close on the May 30, 2014 closing date because an unfortunate dispute developed between Stout and Robert Bailey (Bailey), the solicitor for the Defendant, over an undertaking to pay the $1,571.07 in municipal taxes owing. The City of Iqaluit required an undertaking from Bailey to pay the taxes before the City consented to the transfer of the lease of the Property to the Applicants. Since Bailey did not provide the undertaking by May 28, 2014, Stout requested an extension of the closing date to June 9, 2014.

Bailey would only agree to the extension if the Applicants agreed to pay an additional $67 per day interest on the balance to close. The transaction collapsed when the Applicants refused to pay the additional interest. The Applicants commenced the legal action for specific performance a few weeks later. [ 23 ] At the closing date, the Applicants were ready, willing and able to close the sale and the solicitor for the Applicants held $408,630.69 in his trust account.

That amount included $364,500 in first mortgage financing with the balance provided by the Applicants. [ 24 ] The Applicants obtained a Certificate of Pending Litigation from the Clerk on June 26, 2014 and the Defendant was noted in default on December 18, 2014. [ 25 ] On November 9, 2015, the Applicants obtained Default Judgment against the Defendant from Tulloch J. The Judgment declared that there was a valid contract between the parties and the Defendant was ordered to sell the Property to the Applicants for $405,000 within 30 days.

On November 26, 2015, the Applicants filed a caveat against the title to the Property to protect their interests. [ 26 ] On November 19, 2015, Stout advised the solicitor for RBC that the Property did not seem to be maintained. He believed there was no fuel in the fuel tank and was concerned about the building freezing up. [ 27 ] In response Shafir instructed Veranova to conduct an emergency occupancy check. On November 20, 2015, Veranova informed the solicitor for RBC that the Property was vacant and abandoned and that they had taken steps to ensure the building was secure.

On November 27, 2015, the solicitor for RBC informed the solicitor for the Plaintiffs that the Property was found to be frozen and that it had been secured. Veranova also reported that, because the home had four inches of water throughout the main level, it retained a plumber to shut off the water to the Property. RBC decided to leave the Property in a frozen state until warmer weather in order to reduce any further damage to the Property. [ 28 ] Veranova obtained two separate repair estimates to restore the Property.

The first estimate in the amount of $8,085 covered the removal of the ice and the use of space heaters to thaw the Property. The second estimate in the amount of $22,961.11 covered testing for moisture, cutting the vapour barrier and removal of cabinetry in the kitchen for proper drying. [ 29 ] On January 27, 2016, Stout wrote to Shafir that the Applicants were still interested in purchasing the Property but were concerned the damage estimate of RBC was inaccurate.

He obtained Shafir’s agreement to permit the Applicants to have local contractors assess the damage. [ 30 ] GC North estimated the cost of repair would be $178,350 plus GST while NCC Development Ltd estimated the cost would be $167,239.60. [ 31 ] The Applicants also incurred legal costs of $11,585.46. Added to the lower cost of repair in the amount of $167,239.60 plus a contingency of $25,000, the total cost reduction sought by the Applicants from the $405,000 purchase price is $201,174.94.

IV. ISSUES [ 32 ] A. Should the Final Order of Foreclosure—to which RBC is entitled in law—be subject to the caveat of the Applicants? [ 33 ] B. If the Order is subject to the caveat, are the Applicants entitled to an Order directing RBC to sell the Property to the Applicants at the reduced purchase price of $201,174.94? V. ARGUMENT AND ANALYSIS A. Should the Final Order of Foreclosure—to which RBC is entitled in law—be subject to the caveat of the Applicants? (

i) Applicants’ argument [ 34 ] Both parties acknowledge that RBC is entitled to a Final Order of Foreclosure. However, the Applicants argue that it should be subject to the legal and equitable rights of the Applicants because RBC failed to properly inspect and secure the Property. [ 35 ] The Applicants did not provide any case law for what Stout acknowledged was a unique case.

He relies on the discretionary equitable jurisdiction of this Court under sections 24, 25 and 47 of the Judicature Act , SNWT (Nu) 1998, c 34 s 1, as well as rules 558, 559, 560 and 561 of the Rules of Court to argue that RBC was aware at a very early stage that the Applicants were particularly interested and capable of purchasing the Property. That interest was maintained throughout the foreclosure and RBC manifested an interest in assigning its interest in the mortgage to the Applicants.

It was only at the eleventh hour—when RBC discovered that the Property was damaged—that RBC changed its position and tried to pass off the loss to the Applicants. That damage did not occur in a few hours and someone was not doing a proper job of checking and monitoring the Property. It would be inequitable for RBC to avoid responsibility and defeat the legal and equitable rights of the Applicants.

Granting the Final Order of Foreclosure subject to the caveat preserves the Applicants’ rights in the Property and gives them the ability to maintain an action to acquire the Property from RBC after they obtain title with the Final Order of Foreclosure. The same arguments also apply to the new lease that will be issued to the bank. (ii) RBC’s argument [ 36 ] RBC argues that a basic premise for the exercise of the Court’s equitable jurisdiction is that the Applicants must come to court with clean hands and without other remedies.

The Applicants had a number of other options to obtain damages or secure the Property without infringing on RBC’s rights. [ 37 ] The first option open to the Applicants was to close the transaction in accordance with the offer to purchase. It did not close because of a dispute between Stout and Bailey over an undertaking to pay municipal property taxes.

The Applicants had the option to start an action against Stout and/or Bailey and the Defendant but chose not to do so. [ 38 ] The second option was to take the legal steps to force the Defendant to close the transaction after the 30 days expired in accordance with the Order. The Order stated that the Defendant “shall, in 30 days hereof, sell the property for the sum of $405,000”. Although not specifically stated, it is implicit that the transfer would have resulted in a transfer of the Defendant’s interest in the Property to the Applicants, subject to the two mortgages.

The alternative would be nonsensical and is supported by the fact that the Applicants did not give any notice of the application to the mortgagees. There was no need for notice since the Applicants expected to take title, subject to the mortgages. When the Defendant did not transfer her interest, the Applicants could have taken the proper legal steps to obtain the Defendant’s interest in the Property.

If this step had occurred, the Applicants would step in the shoes of the Defendant and could then have redeemed and paid off the RBC mortgage before the damage occurred. [ 39 ] The third option was to put in a bid when the Property was advertised for sale. This would again put the Applicants in a position to redeem up and pay out the RBC mortgage. [ 40 ] The final option available to the Applicants was to inspect the Property regularly as Veranova did. The Applicants had an interest in the Property and would have been legally entitled to inspect it.

[41] Although the Applicants have a legal and equitable interest in the Property, it arose later in time than the RBC mortgage and underforeclosure law their interest is subject to the RBC mortgage. The RBC mortgage is a legal interest while the Order of SpecificPerformance is an equitable interest. That equitable interest is registered against the Property but the Property is already subject to theRBC and NHC mortgages.

As succinctly stated by Professor Ziff in Bruce Ziff, Principles of Property Law, 6th ed (Toronto: ThomsonReuters Canada, 2014) (Ziff) at page 471: “When a legal interest is followed by an equitable interest, the prior (legal) right will notnormally be affected.” [Original emphasis] [42] Because the Applicants have obtained Default Judgment, they are now unsecured creditors of the Defendant. This technicallyelevates their interest to a legal interest.

However, as noted by Master Funduk in Royal Bank of Canada v Choquette, at para 20-23, 76 AR 217 (ABQB) [Choquette], a person who acquires an interest that is subsequent to the mortgage is caught by theequitable principle of redeem up, foreclose down. The Order of Foreclosure extinguishes the equity of redemption that vests not just inthe owner but in all who are in law on the downside of the mortgage. [43] The Applicants’ brief argues that the discharge of the caveat will render the Default Judgment “moot and unenforceable”.However, that is the result of the operation of the law.

As held in Choquette, if the Court grants the Final Order of Foreclosure, thesecond mortgage and the Applicants’ caveat will be wiped off the title. [44] To grant the relief requested by the Applicants would be to give a preference to a third-place creditor to the detriment of the first-place and second-place creditors. This would have the inequitable result of the second-place creditor obtaining nothing. [45] The Applicants are only out of pocket for the legal fees they paid for the specific performance application.

They have not put anymoney into the land and this entire litigation could have been avoided if they had simply paid the outstanding taxes of $1,571.07 whenBailey refused to give the undertaking. [46] The Applicants commenced an action against the Defendant for breach of contract and this Court ordered specific performance. Ifthe Defendant does not sell the Property to the Applicants, they will still have an action against her for damages. [47] If RBC takes title to the Property and the caveat is discharged, the Applicants’ Default Judgment is not nullified.

The Applicantsmay be able to purchase the Property from RBC after foreclosure on terms agreeable to both parties. [48] RBC relies on

section 17 of the mortgage agreement to argue that it had no responsibility for the inspection of the Property. Thissection is permissive and authorizes RBC to inspect. If it does inspect, section 17(6) specifically states that RBC shall not be consideredto be in possession or control of the Property. [49] RBC also owes no duty of care to the Applicants because they are not a party to the mortgage.

As held by Hetherington J. in Bankof Nova Scotia v Boisselle, at para 18, 63 AR 283 [Boisselle], generally the only duties of a mortgagee are to “act ingood faith and in a manner which is not negligent in selling mortgaged property”. Vertes J. made similar comments in CIBC MortgageCorp v Pagotto, 2002 NWTSC 2 at paras 6, 17, 2002 CarswellNWT 5 [Pagotto].

Further, in Modern Realty Company Ltd v MB Shantz (SCC), [1928] SCR 213 at 221, [1928] 2 DLR 705, the Supreme Court of Canada stated that “[a] mortgagee is not by lawcompelled to take possession”. (iii) Applicant’s reply [50] Stout replied that the Applicants could not be expected to redeem the full amount owing on the mortgage after the damage to theProperty was discovered shortly after the Applicants obtained the Default Judgment. (iv) Analysis [51] The failure to close the transaction for the purchase of the Property is disturbing. Unfortunately, I only have the Applicants’ side ofthe story.

The money to close was in trust and the amount in issue was $670 (67 x 10 days). The Defendant was prepared to give theundertaking but only if the Applicants paid per diem interest on the balance to close from May 30 to June 9. It is unclear if the decisionto refuse to pay the $670 was that of the Applicants or Stout. If it was the Applicants’, then they must live with the consequences of thatdecision.

If it was Stout’s, then the Applicants may have grounds for a legal action against him. [52] The Applicants do not challenge RBC’s submissions on the law of foreclosure in the Torrens land titles system and Land TitlesAct, RSNWT (Nu) 1988, c 8 (Supp) [LTA].

[ 53 ] As stated at paragraph 20 of Choquette : A person who acquires an interest in the land which is subsequent to the mortgage is caught by the equitable principle of redemption up, foreclose down. What is extinguished by an order of foreclosure is the equity of redemption.

The so called equity of redemption vests not in just the owner but all who are in law on the downside of the mortgage. [ 54 ] The foreclosure started in December 2013 and RBC retained Veranova to commence bi-weekly inspections of the Property. [ 55 ] The Applicants commenced the action against the Defendant in June 2014 and the action took a leisurely pace. The Defendant was not served until September and the noting in default did not happen until December. It then took about 11 months to obtain Default Judgment. During this time Stout and Shafir were in communication about how to short-circuit the foreclosure.

Stout wrote to Shafir twice in July 2014 to inform him about the action for specific performance and Shafir offered Stout an assignment of the mortgage in August 2014. For unknown reasons, Stout and the Applicants did not accept Shafir’s offer. If they had bought the assignment by paying off the RBC mortgage, the Applicants would have stepped into the shoes of RBC and could have foreclosed the equity of redemption held by the NHC. The amount owing on the mortgage when the Order Nisi was granted was $346,900.74.

If this had happened, the specific performance action could have been discontinued and the Applicants would have acquired the Property for substantially less than the purchase price. The Applicants also could have filed an application to compel the Defendant to transfer the title as specified in the Specific Performance Order. [ 56 ] Having missed this opportunity, the Applicants were caught flat-footed when they discovered that the Defendant had abandoned the Property and it had frozen.

The repair estimates of RBC and the Applicants were far apart and, understandably, the Applicants did not want to pay the purchase price knowing there was more money needed for repairs. [ 57 ] There were no bids received when the Property was offered for sale in January and February 2016. The Applicants again missed an opportunity to acquire the Property for a reduced price.

RBC may well have entertained a reduction in the payout knowing that substantial repairs were required. [ 58 ] Instead, the Applicants delayed the RBC application for a Final Order of Foreclosure by filing an affidavit in the foreclosure action and seeking a special chambers date. The amount owing on the RBC mortgage as of March 15, 2017 is $388,291.36 with a per diem of $57.39. [ 59 ] I am satisfied that there is merit in the RBC argument that the Applicants did not come forward with clean hands in seeking equitable relief.

Instead of moving quickly to protect their equitable rights, they delayed and now seek to place the cost of the delay on RBC. [ 60 ] The Applicants argue that RBC was in effect negligent in the inspection of the Property. If Veranova had done its job, it would have found out the Property was abandoned earlier and advised RBC, which could then have taken steps to secure the Property to prevent the damages. RBC is vicariously responsible for Veranova’s negligence.

The RBC negligence, the Applicants submit, is sufficient for this Court to exercise its equitable jurisdiction to change the law of foreclosure under the LTA by making the new title held by RBC subject to the caveat. [ 61 ] I am satisfied that RBC was not a mortgagee in possession of the Property. It could and did inspect the Property but was under no contractual legal obligation to pay for the cost of repairs. There is no contractual relationship between RBC and the Applicants and RBC owed no duty of care to them.

Nevertheless, as noted in Boisselle and Pagotto , the mortgagee must act in good faith and avoid any negligence in the sale of the land. [ 62 ] There is some authority at page 471 of Ziff that an equitable interest may rank ahead of a prior legal interest where there is gross negligence. He states: When a legal interest is followed by an equitable interest , the prior (legal) right will not normally be affected. First in time is first in right, or, as it is sometimes put: where the equities are equal, the law will prevail.

However, it is within the realm of possibility that some conduct on the part of the prior holder may preclude that person from asserting a better title, and warrant a postponement of the legal interest in favour of the later (equitable) one. That might occur, for example, when the holder of legal title has been a party to fraud in the creation of the equitable interest [,] is guilty of gross negligence affecting that subsequent interest, or has acted in some other way that estops the holder of the earlier legal interest from insisting that the normal ordering should govern.

Indeed, all of this postponing conduct can arguably be thought of as being founded on the idea of estoppel. [Original emphasis].

[63] The case cited in support is Tyrell v Mills (BC SC), [1924] 3 WWR 387 at para 16, 1924 CarswellBC 74 (BCCounty Court).

In that case, Calder C.C.J. adopted the following statement from the English case of Oliver v Hinton [1899] 2 Ch 264 at273, 68 LJ Ch 583, on when negligence may prevent a party from acting on his legal estate: To deprive a purchaser for value without notice of a prior encumbrance of the protection of the legal estate it is not, in my opinion,essential that he should have been guilty of fraud; it is sufficient that he has been guilty of such gross negligence as would render it unjustto deprive the prior encumbrancer of his priority. [64] In this case, RBC engaged Veranova to inspect the Property bi-weekly.

The uncontradicted evidence of Tammy Pellerin is thatthose inspections took place bi-weekly, starting on December 27, 2013. The inspections revealed that the Property was occupied until theinspection of November 20, 2015. At that time, Veranova discovered the Property was vacant and took steps to secure it. Thetemperatures in Iqaluit at that time of year fall below freezing and it would not have taken too long for the house to freeze if there was noheat.

I am satisfied that sometime during the two weeks between inspections the Defendant abandoned the Property and it froze. [65] I am satisfied that neither RBC nor Veranova were negligent—let alone grossly negligent—in inspecting the Property. [66] The application by the Applicants is dismissed and the Final Order of Foreclosure is granted. New title in the name of RBC, freeand clear of all encumbrances, shall be issued. B.

If the Order is subject to the caveat, are the Applicants entitled to an Order directing RBC to sell the Property to theApplicants at the reduced purchase price of $201,174.94? [67] Since the mortgage is not subject to the caveat, it follows that I also decline to issue the Order to RBC to sell at the price of$201,174.94. [68] Since the issues raised were somewhat novel, both parties shall bear their own costs. Dated at the City of Iqaluit this 11th day of August, 2017 ___________________ Justice E. Johnson Nunavut Court of Justice