Ngatcha v The Registered Nurses Association of Northwest Territories and Nunavut, 2023 NUCA 6

ᓄᓇᕘᒥ ᐅᓐᓂᓗᖅᓴᖅᑐᓄᑦ ᐃᖅᑲᖅᑐᐃᕕᒃ Nunavunmi Apiqhuidjutainut Uuktuffaarutit Nunavut Court of Appeal Cour d'appel du Nunavut Citation: Ngatcha v The Registered Nurses Association of Northwest Territories and Nunavut, 2023 NUCA 6 R é f é rence: Ngatcha c Association des infirmières et infirmiers autorisés des Territoires du Nord-Ouest et du Nunavut, 2023 NUCA 6 Date: 20230613 Docket/Dossier: 08-21-13-CAC Registry/Greffe: Iqaluit Between: Willy Tchuilen Ngatcha Respondent /Intimé (Appellant/Appelant) - and - The Registered Nurses Association of Northwest Territories and Nunavut/Association des infirmières et infirmiers autorisés des Territoires du Nord-Ouest et du Nunavut Applicant/Requérante (Respondent/Intimée) _______________________________________________________ Reasons for Decision/Motifs de décision _______________________________________________________ Application to Strike, Dismiss or Abandon Appe al/Requête en radiation, rejet ou abandon d’appel _______________________________________________________

Reasons for Decision _______________________________________________________ [ 1 ] The respondent to this appeal applies to strike, dismiss or abandon this appeal pursuant to rule 26(2) (

b) of the Rules of the Nunavut Court of Appeal Respecting Civil Appeals , Nu Reg 014-2018 . The bases for the application are (1) that Mr Ngatcha failed to file the appeal record in the time provided in rule 50(

a) and what he has filed does not comply with the rules; and (2) that the appeal has not been scheduled within six months after the respondent’s factum was filed: rule 50(c). [ 2 ] Mr Ngatcha is a registered nurse whose employment was terminated by his employer when it was alleged that he failed to demonstrate the skill, judgment and knowledge that a registered nurse should possess. A Board of Inquiry found 22 of the 43 allegations were substantiated. Mr Ngatcha’s appeal to an Appeal Panel was dismissed, except with respect to one allegation.

His application for judicial review of the Appeal Panel decision was dismissed by Rouleau J: Willy Tchuilen Ngatcha v Registered Nurses Association of the Northwest Territories and Nunavut , 2021 NUCJ 31 . [ 3 ] As regards the appeal, the chronology is as follows: (

a) On July 14, 2021 Rouleau J dismissed the judicial review application; (

b) On July 19, 2021 Mr Ngatcha filed his Notice of Appeal; (

c) August 11, 2021 Mr Ngatcha was reminded of the need to file an Appeal Record; (

d) On November 9, 2021 at the speak to list, the court advised Mr Ngatcha of the need to file an Appeal Record; (

e) On December 15, 2021 Mr Ngatcha filed a factum; (

f) On January 3, 2022 he was again reminded of the need to file an Appeal Record; (

g) On January 19, 2022 the deadline to file the Appeal Record passed; (

h) On February 15, 2022 the respondent filed its factum, extracts and authorities; (

i) On March 16, 2022 there was a further speak to. This was adjourned by Mr Ngatcha; (

j) On July 20, 2022 another speak to was adjourned by Mr Ngatcha; (

k) On November 8, 2022 a fourth speak to was adjourned by Mr Ngatcha; and (

l) On January 23, 2023 the respondent brought this application. [ 4 ] Mr Ngatcha’s principal argument is that there was a one-year delay in obtaining the transcript. Ultimately, 15 months after the deadline, and after the respondent brought this application, Mr Ngatcha sent hundreds of pages of material to the registry, including the transcripts and these were uploaded.

These were contained in emails with bundles of unnumbered documents. [ 5 ] The appeal record is important because the court cannot properly adjudicate on an appeal if the record of what has occurred in the court below and in the various tribunals is not complete. [ 6 ] In this instance, as demonstrated by the respondent, there are many documents missing: the original notice of hearing, the medical records from the Board of Inquiry and the application for judicial review. Further, there were prehearing applications which have not been included.

The submitted documents do not include the decision appealed from, the final order, and the decision of the Appeal Panel. Moreover, there are documents which should not be in an appeal record; for example, an application for new evidence which was dismissed. [ 7 ] As regards the delay caused by the transcripts, rule 13(2) permits the appeal record to be filed and any missing document included at a later date. [ 8 ] I appreciate that the court has the discretion under rule 13(3) to vary the content or format of the appeal record.

But I must be satisfied that the three members of this court who will hear the appeal have a proper record in order to fairly adjudicate. Further, the respondent must have a proper record in order to follow the appellant’s submissions and to properly present its case. This court does not have the resources to fill in the gaps in the appeal record. That is the responsibility of the appellant and that applies whether the appellant has counsel or is self-represented.

The documents sent to the registry by Mr Ngatcha do not comply with the rules. [ 9 ] In deciding whether to strike the appeal, I am guided by this court’s recent decision in Baffinland Iron Mines Corporation v Naqitarvik , 2022 NUCA 10 . In that case neither the appeal record nor the factum were filed in the time limits imposed by the rules, although both were ultimately filed. [ 10 ] The decision to strike an appeal for delay is discretionary. The factors to be considered will vary depending on the facts, but some commonly recurring considerations are: (

a) the length of the delay, and the adequacy of any explanation;

(

b) the merits of the appeal; (

c) whether previous rulings about timelines and prosecution of the appeal have been breached; (

d) whether indulgences regarding the prosecution of the appeal have previously been granted; (

e) the prejudice to either party; and (

f) whether the appeal is just one component of a larger manifestation of improper litigation. Baffinland Iron Mines Corporation at para 8 . [ 11 ] The length of delay in this case is significant, close to 15 months. The documents filed do not constitute an appeal record that can assist this court in adjudicating the appeal. The explanation for the transcripts is understandable but there is no explanation for the failure to complete the remainder of the appeal record. Further, timelines regarding setting the case for oral hearing have been missed and several indulgences granted in that regard.

The respondent acknowledges that any prejudice is largely that of delay. [ 12 ] What is important here is whether the appeal has arguable merit. That engages the appellate standard of review of the decision of Rouleau J. This court will ask (1) whether Rouleau J selected the correct standard of review and (2) whether he erred in applying that standard: Northern Regional Health Authority v Horrocks , 2021 SCC 42 at para 10 . [ 13 ] Rouleau J selected the correct standard: was the decision of the Appeal Panel reasonable? He considered each of Mr Ngatcha’s arguments.

Mr Ngatcha argued that the Board of Inquiry should have rejected the testimony of the witnesses because their allegations were frivolous and vexatious. He made that same argument before the Appeal Panel which found that the Board had the benefit of assessing the credibility of the witnesses and their review of the transcripts supported the Board’s findings. Rouleau J found no error in the reasons of the Appeal Panel or in the reasons of the Board of Inquiry with respect to their findings of credibility of the witnesses.

The allegations were not frivolous or vexatious. [ 14 ] As regards Mr Ngatcha’s argument that there was a conspiracy, Rouleau J said at para 73: Also, as explained by the appeal committee and for the reasons that I set out in this decision, the applicant's argument that there was a conspiracy cannot be accepted.

Much of the applicant's testimony constituted baseless allegations in support of the existence of such a conspiracy and was simply not credible. [ 15 ] Mr Ngatcha’s grounds of appeal and factum point to no reviewable error except to make the very same arguments he has made in the court below and before the Appeal Panel. An appellate court rarely interferes with assessments of credibility of witnesses by the tribunal of first instance.

I am not persuaded that the appeal has any arguable merit. [ 16 ] When I consider the length of delay, the failure to submit an appeal record in a form that could assist the court, the indulgences already given to Mr Ngatcha and the fact that the appeal has little chance of success, I grant the application and strike the appeal. [ 17 ] In conclusion the application is granted and the appeal is struck. Application heard on May 11, 2023 Reasons filed at Iqaluit, Nunavut this 13th day of June, 2023 Rowbotham J.A. Appearances: Respondent, W. Ngatcha G. Sim For the Applicant