Jane Doe v. Hamlet of Pangnirtung and Government of Nunavut, 2021 NUCJ 14

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: Jane Doe v. Hamlet of Pangnirtung and Government of Nunavut, 2021 NUCJ 14 Date: 20210304 Docket: 10-20-097 Registry: Iqaluit Plaintiff/Respondent: Jane Doe (G.E.B. #51) -and- First Defendant: The Hamlet of Pangnirtung -and- Second Defendant/Applicant: Government of Nunavut ________________________________________________________________________ Before: Mr. Justice Lyons Counsel (Plaintiff): G. Budden Counsel (First Defendant): M. Theriault Counsel (Second Defendant): W.

Lu Location Heard: Iqaluit, Nunavut Date Heard: November 9, 2020 Matters: Decision on motion to strike pursuant to R. 129 of the Rules of the Supreme Court of the Northwest Territories (Nu), R-010-96 REASONS FOR JUDGMENT

(NOTE: This document may have been edited for publication) I. INTRODUCTION [1] This is a motion to strike the plaintiff’s statement of claim pursuant to Rule 129(1) of the Rules of Court. The plaintiff alleges thatshe experienced sexual harassment while employed by the Hamlet of Pangnirtung (the “Hamlet”). There are two defendants in thismatter: the Hamlet and the Government of Nunavut (the “GN”). The GN argues that the statement of claim discloses no cause of actionagainst it, is frivolous, is an abuse of process, and should be struck. II. LAW [2] Rule 129(1) sets out the grounds on which the Court may strike a pleading. 129

(1) The Court may, at any stage of a proceeding, order that (

a) any pleading in the action be struck out or amended, on the ground that (

i) it discloses no cause of action or defence, as the case may be, (ii) it is scandalous, frivolous or vexatious, … (iv) it is otherwise an abuse of the process of the Court; and (

b) the action be stayed or dismissed or judgment be entered accordingly. [3] The parties agree that the test governing motions to strike is the “plain and obvious” test as established by the Supreme Court ofCanada in Hunt v Carey Canada Inc., (SCC), [1990] 2 SCR 959, 117 NR 321: … assuming that the facts as stated in the statement of claim can be proved, is it “plain and obvious” that the plaintiff’s statement ofclaim discloses no reasonable cause of action? (at para 36) [4] The Supreme Court further clarified in Hunt v Carey and the more recent Odhavji Estate v Woodhouse, 2003 SCC 69 that thestatement of claim must contain a “radical defect” making the plaintiff “certain to fail” as against the relevant defendant.

The “plain andobvious” test requires me, as the judge on this motion, to regard the facts pleaded in the statement of claim as true. The question I mustdecide is whether it is plain and obvious that the plaintiff cannot succeed against the Government of Nunavut even if all the facts asalleged are proven to be true. III. FACTS [5] As stated above, for the purposes of the “plain and obvious” test, I must regard the facts pled as true.

If the matter proceeds totrial, the plaintiff is still required to present evidence establishing the facts as pled on a balance of probabilities. [6] The facts pled are that the plaintiff, while employed by the Hamlet from May to August 2018, was subjected to sexual harassment,non-consensual touching, and other misconduct of a sexual nature. The alleged perpetrator was the plaintiff’s direct supervisor.

Thesupervisor is alleged to have made highly sexualized and other inappropriate comments to the plaintiff; to have aggressively pursued anintimate relationship with the plaintiff; and to have terminated the plaintiff’s employment when the plaintiff refused to engage in a sexualrelationship with her direct supervisor. [7] The plaintiff states that she was hired by the Hamlet upon the recommendation of the GN. In addition, both the Hamlet and theGN were notified about the harassment while it was ongoing. No action was taken against the perpetrator by either the Hamlet or the

GN. [ 8 ] The plaintiff had relocated to Pangnirtung to fulfill a one-year employment contract, residing in Pangnirtung until the premature termination. When the termination occurred, the plaintiff’s housing was revoked. The plaintiff and their child were forced to relocate at their own expense.

The experience allegedly caused the plaintiff continuous psychological distress, loss of reputation, feelings of humiliation and betrayal, additional financial burdens, and exacerbation of pre-existing illnesses and problems. [ 9 ] The plaintiff filed a Statement of Claim against the first defendant (the Hamlet) and the second defendant (the GN) on May 6, 2020. IV. SUBMISSIONS A. The Government of Nunavut [ 10 ] Counsel for the GN argues that the plaintiff’s claim should be struck as against the GN because it discloses no cause of action, it is frivolous and vexatious, and it is otherwise an abuse of process.

The primary argument presented by counsel for the GN is that the relationship between the GN and the Hamlet is not such that it is possible for liability to attach to the GN. According to counsel for the GN, “it is plain and obvious that the Hamlet manages and controls its own affairs” (Reply of the Applicant/Second Defendant, filed October 9, 2020 at para 49). Accordingly, “[t]here is no prospect of success in fact or in law to the Plaintiff’s allegation that the GN manages and controls the Hamlet” (at para 50). B.

The plaintiff [ 11 ] The plaintiff disputes the GN’s characterization of the relationship between the GN and the Hamlet. The plaintiff argues that the GN does indeed “manage and control” the Hamlet and that it has “explicit operational authority and oversight” over the Hamlet (Respondent/Plaintiff’s Brief, filed September 29, 2020 at para 10). V. ANALYSIS [ 12 ] The GN argues that it is plain and obvious that the GN is so clearly insulated from liability for actions of the Hamlet that I ought to dismiss this action against the GN because it is certain to fail. With respect, I cannot adopt that position. A.

The pleading discloses a cause of action [ 13 ] The facts as pled give rise to an enforceable claim of sexual harassment against an employee of the Hamlet. Whether the claim is enforceable as against the GN is an issue to be argued at trial, as it is not plain and obvious that the Hamlet is entirely independent of the GN.

Indeed, as one example of the relationship between the Hamlet and the GN, counsel noted that pursuant to s.191.1 of the Hamlets Act , the GN may supervise the affairs of the Hamlet if the Hamlet is in financial or operational difficulty; has failed to perform a duty required of it by the Hamlets Act, or any other Act; or if it is in the best interests of the Hamlet that its affairs be supervised. [ 14 ] The GN argues that the proper

interpretation of the Hamlets Act does not allow the GN to step in to supervise a Hamlet’s discrete human resource issue , and that the plaintiff has no prospect of success as a result. It is not the role of the court, however, to evaluate the plaintiff’s prospect of success or determine the merit of possible legal arguments at the interlocutory stage. Instead, the Court is to determine whether the pleading raises an arguable issue.

Given that the GN has the power to manage the affairs of the Hamlet in certain circumstances, and is alleged to have been aware the plaintiff was being harassed, I find the issue of the GN’s liability for the Hamlet’s actions to be arguable. Ultimately, whether the GN owed a duty of care to the plaintiff and had the ability and/or duty to intervene in the circumstances of the case are issues for the trial judge to determine. B. The pleading is not frivolous, vexatious, or an abuse of process

[ 15 ] Counsel for the GN relies on Van Sluytman v Canada , 2017 ONSC 481 as an example of indicia of frivolous, vexatious, or otherwise abusive litigation. In that case, the plaintiff commenced fourteen actions arising from “general discontent with his interactions with the police, social work, mental health, and medical personnel over a number of years” (at para 1). His statement of claim contained no facts, engaged in “rambling unclarified discourse” making identifying the issues in the case difficult or impossible, and sought grandiose damages in the millions of dollars (at paras 2, 6, 12).

In addition, the limitation period for his claims had passed (at para 14). [ 16 ] Counsel for the GN points out that both Van Sluytman and the plaintiff argue that the government’s liability stems from its responsibility to train public servants adequately.

A general similarity between one of the plaintiff’s arguments in Van Sluytman and one aspect of the plaintiff’s argument in the case before me is not enough to bring this matter under the umbrella of frivolous, vexatious, or abusive proceedings. [ 17 ] The plaintiff’s claim contains a concise statement of facts identifying specific incidents of sexual harassment, indicates the parties alleged to be responsible, and the reasons for their responsibility. Accordingly, the claim is not frivolous, vexatious, or an abuse of process. VI.

CONCLUSION [ 18 ] The motion to strike this claim as against the second defendant, the Government of Nunavut, is dismissed. [ 19 ] If Counsel are unable to come to an agreement regarding the costs of this motion, written submissions as to costs may be filed to a maximum of 4 pages within 10 days of the release of this decision. Dated at the City of Iqaluit this 4th day of March, 2021 ___________________ Justice C. Lyons Nunavut Court of Justice