2021 NUCJ 30, 2021 NUCJ 30

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: RPC1 and RPC2 v. The Commissioner of Nunavut and The Commissioner of the Northwest Territories, 2021 NUCJ 30 Date: 20210617 Docket: 08-16-772-CVC Registry: Iqaluit Plaintiff: RPC1 and RPC2 -and- Defendant: The Commissioner of Nunavut and The Commissioner of the Northwest Territories ________________________________________________________________________ Before: Madam Justice Charlesworth Counsel (Plaintiff): A. Regel L. Moore Counsel (Defendant): J. O’Neill, QC R. Baxter Location Heard: Iqaluit, Nunavut Date Heard: June 3, 2021 Matters: Motion to obtain direction for undertakings ENDORSEMENT

(NOTE: This document may have been edited for publication) [ 1 ] The plaintiffs brought a motion seeking an order compelling the defendant to answer undertakings that were taken under advisement at the examination for discovery of Andrea Giesbrecht. I. BACKGROUND [ 2 ] Counsel for the plaintiffs examined Andrea Giesbrecht, for the purposes of discovery, on October 28, 2020. Over the course of the examination thirty-three undertakings were taken under advisement.

Of those, some were later abandoned by the plaintiffs and others the defendants agreed to answer. [ 3 ] The plaintiffs brought a motion, that I heard on June 3, 2021, to obtain direction from this Court with respect to the remaining seventeen undertakings. II. ANALYSIS [ 4 ] The discovery process is used by parties in civil matters to “learn the case to be met, to narrow the issues to be dealt with at trial, to prevent surprise at trial and to allow a party to assess the strengths and weaknesses of the case of the opposing party in anticipating that this may foster settlement.

For these reasons, the scope of examinations of discovery is quite broad.” ( Ironside v. Wong , 2003 ABQB 161 , at para. 1 .) [ 5 ] The appropriate place to start in determining whether discovery questions and undertakings are appropriate is with the pleadings. The context of the pleadings must be considered. [ 6 ] The Statement of Claim in this proceeding alleges that Inuit students were sexually assaulted and otherwise exploited by a teacher, Maurice Cloughley, working in two communities in what has become Nunavut, between 1974 and 1979.

The Claim further alleges the students were required to attend school by the defendants which hired Cloughley, and the defendants knew that as a teacher and representative of the government he would be an influential and powerful man in the communities in which he worked. [ 7 ] The statement of claim alleges that Cloughley’s power over students extended to time outside of school and beyond the physical premises controlled by the defendants.

The claim goes on to allege the defendants did not conduct an adequate investigation into Cloughley’s background, temperament, psychological makeup, or qualifications nor his general suitability to work in remote, isolated communities. Once Cloughley was placed in the communities, the plaintiffs plead the defendants did not adequately supervise his work or monitor his activities.

Thus, the allegations are not just that Cloughley abused students but that the defendants placed him in a special position which made it easy for him to abuse students and the defendants did nothing to monitor that relationship or protect the students from him. [ 8 ] This is the context in which the examination for discovery was made of Ms. Giesbrecht, who is the Director of Education Operations and Educator Development in the Northwest Territories. At the time of the examination Ms. Giesbrecht was temporarily in the position of Assistant Deputy Minister, Education and Culture.

[ 9 ] Ms. Giesbrecht was unable to answer several questions, for various bona fide reasons, during the examination process. Quite properly, examining counsel asked that undertakings be provided by Ms. Giesbrecht to investigate and provide answers later to the questions that she was unable to answer. [ 10 ] Ms. Giesbrecht, under guidance from counsel, took a number of the undertakings under advisement which ultimately led to this motion. [ 11 ] In Nunavut, subrule 251(1) affords an extremely wide scope for what questions may be asked at discovery: 251.

(1) A person who is examined for discovery shall answer, to the best of his or her knowledge, information and belief , any proper question relating to any matter in issue in the action and no question may be objected to on the ground that: (

a) the information sought is evidence; (

b) the question constitutes cross-examination, unless the question is directed solely to the credibility of the witness; or (

c) the question constitutes cross-examination on the statement as to documents of the party being examined. [ 12 ] When a litigant refuses to answer a question, subrule 251(4) provides procedural guidance for how an examining party may compel answers: 251.

(4) Where a person who is examined for discovery fails to answer or answers insufficiently, the Court may order the person to answer or to answer further and may give such other directions as it considers just. [ 13 ] Justice Rouleau, in Baffinland v .

Inuavak et al , 2021 NUCJ 22 , set out the following three-part test, in the context of undertakings provided during cross examinations on affidavits, to determine when an undertaking should be directed: 1) When the undertakings are relevant to an important issue in the application; 2) When providing the information asked would not be overly onerous; and 3) When the answer to an undertaking will help the court significantly in making a decision. [ 14 ] Procedurally examinations for discovery and cross-examinations on affidavits are treated similarly in Nunavut, see Rule 381(3).

As such, I would modify Justice Rouleau’s test to fit the discovery process as follows: Undertakings must be followed through with and answered when: 1) the proper question asked relates to any matter in issue in the action; 2) the examining party is not reaching too far or speculating to get information from the party being questioned; and 3) When completing the undertaking would not place an overly onerous burden on the examined party. [ 15 ] In this context, the relationship between the government and the Inuit in remote communities is relevant, as is the knowledge of the Territorial defendants regarding that relationship when Canada ceded power to them, and going forward.

The question does not reach or speculate and does not place an overly onerous burden on the defendant to answer. I find that Undertakings 3, 4, 5 and 6 relate to that issue, and should be answered. [ 16 ] Regarding Undertaking 10 - what efforts were made during the relevant time to hire teachers from the small communities -

Counsel for the defendants requested more information about how to satisfy the request. As this is an issue relating to past practices, it seems to me that the way it could be answered is by checking the records of the time to ascertain whether hiring practices and procedures gave any preference to teaching candidates with a connection to the North. [ 17 ] Counsel for the defendants also requested more information about Undertaking 12 , and I believe that can be answered by reviewing the transcript. At page 26 Mr.

Regel makes clear that the question he wishes to have answered is whether after devolution, “education was administered from the south still or whether it was administered from Yellowknife.” That question is less confusing and should be easily answered. [ 18 ] Undertaking 17 requests the “oldest record that can be located relating to a formal complaint of sexual abuse against a territorial government employee.” Because the question is asking for a formal complaint which should be in the government records, it should be answered.

It is a proper question relating to a matter in issue in the action, it is not an overreach, and a search of government records relating to formal complaints cannot be an overly onerous endeavour. [ 19 ] Mitigation is an important issue, and the plaintiffs ask in Undertaking 18 for the defendants to advise what steps the Department of Education took to mitigate the risk of further abuse once it became aware that employees might sexually abuse children. The question is proper and relates to an issue in the action, it is not a reach, and does not place an overly onerous burden on the defendant.

It must be answered. [ 20 ] In Undertaking 19 the plaintiffs asked Counsel for the defendants to advise whether the defendants take any issue with the

summary of allegations against Mr. Cloughley set out in an

article found on the last page of Tab 72 in the Production of Documents. Similarly, the plaintiffs ask in Undertaking 20 whether the defendants dispute the accuracy of the findings of the Court in criminal proceedings against Mr. Cloughley, set out in points 1 and 2 of Tab 72 in the Production of Documents. These questions are clearly answerable. [ 21 ] The plaintiffs also asked whether there was any training provided to teachers, during the relevant time period, to identify whether another teacher might be a pedophile, which was set out in Undertaking 28 .

The main objection is that it is not clear what factors might be used to identify a pedophile at the time so a search would be very difficult to do. The question related to whether training existed. It did not ask for how such training was formulated or delivered. It is clearly a proper question relating to a matter in the action, it is not an overreach, nor does it place an onerous burden on the defendant.

The question should be answered. [ 22 ] In Undertaking 29 the plaintiffs ask whether, during the transition of authority to the Territory, inquiries were made whether the Government of Canada had screening processes in place to minimize the risk of hiring teachers who might sexually abuse students. This question satisfies the test and should be answerable. [ 23 ] Undertakings 35 and 36 are the same but relate to different communities.

My understanding is that counsel for the defendants has no objection to producing any teacher directories for the relevant years Cloughley was in Clyde River or Resolute Bay, or his employee files for the relevant years. The issue seems to be providing information about the schools. My understanding is the plaintiff is mainly seeking information about the physical make-up of the schools at the relevant times. That information should be in government files and should be produced based on the test. [ 24 ] The issue of the special status of teachers in remote communities is asserted in the Statement of Claim.

Undertaking 39 asks the defendants if there are any published documents advising teachers of how they may be viewed because they are government employees. This question relates to published government documents, satisfies the test, and should be answered. [ 25 ] Undertakings 50 and 51 relate to mitigation: whether there are documents relating to any government steps taken to discover whether there were other victims of Cloughley (that were not part of the criminal case), and whether the government took steps to try to minimize the negative impact on any of Cloughley’s victims.

These questions satisfy the test should be answered. [ 26 ] Counsel agreed that there were 17 outstanding undertakings, which I have discussed. However, in argument Counsel for the plaintiffs also referred to Undertaking 47 , but Counsel for the defendants did not say it was not in dispute. I am unclear whether this

undertaking has been settled between the parties but will address it in case it has not. In the Production of Documents, there is an envelope at Tab 81 and the request was to identify any postmark as well as the author of handwritten comments on the envelope. This was a document in Cloughley’s employee file. It appears that this Undertaking was made under advisement because it was not clear whether anyone would have those answers.

Counsel for the defendants said they would make best efforts to provide the answers and that seems to be the best that can be done in the circumstances. [ 27 ] Plaintiffs’ counsel requested the answers be provided by the end of this month, as that is when some RCMP records are due to be provided. He argues that this claim has been going for a while and deserves priority. Defendant’s Counsel is proposing to have answers by September 30, partly because many staff will be going on holidays over the summer that have been delayed by the current pandemic.

I will set August 16 as the due date for these Undertakings. [ 28 ] The plaintiffs have had substantial success in this motion. Costs are awarded to the plaintiffs in the amount of $10,000 payable forthwith. Dated at the City of Iqaluit this 17th day of June 2021 ___________________ Justice S. Charlesworth Nunavut Court of Justice