Nunavut Tunngavik Incorporated et. al. v. The Commissioner of Nunavut et. al., 2024 NUCJ 1

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: Nunavut Tunngavik Incorporated et. al. v.

The Commissioner of Nunavut et. al., 2024 NUCJ 01 Date: 20240110 Docket: 08-21-463-CVC Registry: Iqaluit Plaintiffs: Nunavut Tunngavik Incorporated, Bernice Tujjaaqtuqaq Clarke, and Lily Anne Maniapik -and- Defendants: The Commissioner of Nunavut as represented by the Government of Nunavut and the Government of Nunavut as represented by the Attorney General __________________________________________________________________ Before: The Honourable Madam Justice Cooper Counsel (Plaintiffs): Counsel (Defendants): T. Dickson; J. Black M. Faille; A.

Christoff Location Heard: Date Heard: Iqaluit, Nunavut November 14, 2023 Matters: Application by Defendants to stay trial litigation pending outcome of appeal relating to dismissed motion to strike. REASONS FOR DECISION I. INTRODUCTION [ 1 ] In 2008 the Legislative Assembly of Nunavut passed two pieces of legislation which impacted language of instruction in the education system; the Education Act , S. Nu. 2008, c. 15 and the Inuit Language Protection Act , C.S. Nu. C. I-40.

The regime set out in the legislation was designed to ensure that schools in Nunavut offered education with Inuktut as the language of instruction (as opposed to offering only a class to teach Inuktut). A timeline for the provision of Inuktut language of instruction was set out in the legislative regime. [ 2 ] In 2020 the Education Act and the Inuit Language Protection Act were amended.

The amendments had the effect of both pushing back the date for the provision of Inuktut language of instruction and diminishing the scope of the education provided in Inuktut. [ 3 ] In October of 2021, the Plaintiffs (hereinafter referred to as NTI) commenced an action against the Government of Nunavut (GN)

for its failure to provide Inuktut language of instruction education. An amended Statement of Claim was filed on January 31, 2022. [ 4 ] On April 4, 2022, the GN brought a motion to have the Claim struck on the basis that it did not disclose a cause of action. The motion was heard in August of 2022 and on March 2, 2023, it was dismissed, with a direction that the GN file a Statement of Defence within 30 days. [ 5 ] On March 31, 2023, The GN filed a Notice of Appeal of the dismissal of its application to have the Claim struck. On April 13, 2023, the GN filed its Statement of Defence.

No further steps have been taken in the litigation. [ 6 ] The GN now applies for a stay of any further steps in the litigation pending the outcome of the appeal, including any potential further appeal to the Supreme Court of Canada. II. ANALYSIS [ 7 ] The test on a motion for a stay of proceedings is well settled. The onus is on the applicant to establish that; • there is a serious issue to be determined by the Court; • they will suffer irreparable harm if they are not granted a stay; • the balance of convenience favours a stay. RJR-MacDonald Inc. v. Canada (Attorney General), [1994] SCR 311. A.

Serious Issue for the Appeal Court [ 8 ] The threshold for this branch of the test is low. The applicant must show that there is a serious question to be determined. The court hearing the stay application, if it is satisfied that the appeal is neither vexatious or frivolous, should proceed to consider the remaining two branches of the test ( RJR-MacDonald ). [ 9 ] The Appeal, at its foundation, is as follows:

i) The trial court was required to determine the threshold issue of whether s. 15 of the Canadian Charter of Rights and Freedoms ,

Part 1 of the Constitution Act , 1982 , encompassed language rights but the court did not do so; ii) Had the trial court determined the issue of whether s.15 could apply to language, it would have determined that it did not. [ 10 ] The Appellants rely on Atlantic Lotteries v. Babstock 2020 SCC 19 ( Babstock ) for the proposition that legal issues, which do not require an adjudication of facts, should be resolved early in the litigation. As stated in Babstock : … this Court has recognized in Hryniak v.

Mauldin , 2014 SCC 7 , [2014] 1 S.C.R. 87, the need for a culture shift to promote “ timely and affordable access to the civil justice system” (para. 2). Where possible, therefore, courts should resolve legal disputes promptly, rather than referring them to a full trial (paras. 24 - 25 and 32). This includes resolving questions of law by striking claims that have no reasonable chance of success (S. G. A. Pitel and M. B. Lerner, “ Resolving Questions of Law: A Modern Approach to Rule 21” (2014), 43 Advocates ’ Q. 344, at pp. 351-52).

Indeed, the power to strike hopeless claims is “ a valuable housekeeping measure essential to effective and fair litigation” ( Imperial Tobacco , at para. 19).

[11] While I agree that Babstock encourages and demonstrates a preference for the early disposition of legal issues by the court, I wouldnot go as far as to find that the court is obligated to determine unsettled questions of law on such applications. It will depend on thecircumstances. [12] While the Supreme Court of Canada in Babstock promoted the timely resolution of legal issues, it also said: Of course, it is not determinative on a motion to strike that the law has not yet recognized the particular claim.

The law is not static, andnovel claims that might represent an incremental development in the law should be allowed to proceed to trial (Imperial Tobacco, atpara. 21; Das v. George Weston Ltd., 2018 ONCA 1053, 43 E.T.R. (4th) 173, at para. 73; see also R. v.

Salituro, (SCC),[1991] 3 S.C.R. 654, at p. 670). [13] While the Court of Appeal in Babstock declined to decide the issue relating to an unsettled area of the law, the Supreme Court ofCanada was of the view that the law had developed sufficiently so that the issue could be decided without a trial and proceeded to do so.Similarly, the appeal of the within matter may provide an answer to the question of the scope of s.15 in the context of language rightsand, conversely, it may not. [14] The appeal decision will address the correct

interpretation to be given to Babstock, and it may go further and decide the issue ofthe application of s. 15 to language. It has the potential to be dispositive of the litigation. I am unable to conclude that it is frivolous orunmeritorious. B. Irreparable harm [15] The GN submits that irreparable harm will result if a stay is not granted because Department of Education resources will bediverted to preparing litigation materials rather than working on Inuktut language of instruction materials. It submits that the harm isreally done to the Inuit of Nunavut.

In support of this proposition, they have filed affidavits from Department of Education seniormanagement that speak to staffing issues within the Department and how staff responsible for Inuktut language of instruction curriculumare the same staff who would be required to assist counsel in the litigation. [16] NTI argues that delays in the implementation of language of instruction curriculum have a significantly negative impact on the rateof language loss. [17] NTI further responds that engaging in litigation is part of the normal functioning of a government, that this litigation is at thediscovery stage, and that it will not progress beyond that stage while the proceedings in the Court of Appeal are pending.

It submits thatdocument collection can be and is frequently done by an external party, with the support of counsel, and does not require the diversion ofin-house resources of the Department of Education. [18] The nature of the harm advanced by the GN is inherent to the litigation process; it is not harm that flows directly from the orderthat that is under appeal. [19] The GN affidavits refer to important work that the Department of Education is doing, much of it not related to the issues in thelitigation, as work that would be delayed, to the disadvantage of the people of Nunavut.

It is simply too remote. [20] Some of the assertions are speculative. For example, it is attested that if staff are required to divert their efforts to preparing thelitigation, the language of instruction curriculum “might” be delayed even further. [21] I do not accept that the GN will suffer irreparable harm if it is not granted a stay pending appeal.

C. Balance of Convenience [ 22 ] The balance of convenience branch of the test requires an assessment of where the greater harm lies if a stay is granted. [ 23 ] The GN highlights the time and cost expended in preparing for litigation that might all be for naught if it is successful in its appeal. [ 24 ] NTI argues that this is the nature of litigation and that the GN overstates the resources required to advance the document discovery stage of the litigation. [ 25 ] This litigation can be expected to involve very large volumes of documents.

Gathering, reviewing, and organizing those documents will take considerable time and will be costly, regardless of whether it is done in-house or by an outside service. [ 26 ] Realistically, this litigation will take considerable time. Any delay due to the pending appeal must be considered in the context of the likely long-term course of the litigation. [ 27 ] The Court of Appeal will hear the matter at the February 2024 sitting, less than two months from now. It can be expected that it will be a few months after the appeal is argued for the decision to be issued.

Nonetheless, it is difficult to justify the time and expense required for document discovery when a decision can be expected that may be dispositive. [ 28 ] I find that the balance of convenience lies with the granting of a stay, pending the appeal to the Court of Appeal. III. CONCLUSION [ 29 ] The three branches of the tripartite test for the granting of a stay pending appeal will be given different weight depending on the circumstances.

While I have found against the appellants on the issue of irreparable harm, in my view, given the short time before the matter is determined by the Court of Appeal, the balance of convenience weighs heavily in this application. [ 30 ] Realistically, the litigation would not be able to advance to a significant degree between now and the decision from the Court of Appeal. A significant expenditure of time and resources is disproportionate to the length of the delay. [ 31 ] The same cannot be said however of any appeal to the Supreme Court of Canada. Delay arising from such proceedings would be significant.

Further, the legal landscape would have changed, as the GN would then have decisions ruling against them from 3-4 judges. [ 32 ] I deny a stay from the date of issuance of the Court of Appeal decision pending potential proceedings in the Supreme Court of Canada. [ 33 ] I grant a partial stay of proceedings until the issuance of the decision from the Court of Appeal. I direct each of the parties to submit a litigation plan which can be implemented upon the Court of Appeal rendering its decision if the appeal is dismissed.

In this way, in the event of a successful appeal, significant resources will not have been unnecessarily expended but a plan will be in place to advance the litigation immediately if the appeal is unsuccessful. [ 34 ] Each party is to submit a litigation plan by February 2, 2024. I will convene a case management conference to settle the terms of a litigation plan if that is necessary.

Dated at the City of Iqaluit this 10 th day of January 2024 ___________________ Justice S. Cooper Nunavut Court of Justice