Pee v. Hamlet of Coral Harbour, 2021 NUCJ 48

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: Pee v. Hamlet of Coral Harbour, 2021 NUCJ 48 Date: 20211126 Docket: 17-20-376-CVA Registry: Iqaluit Applicant: Daniel Pee -and- Respondent: The Hamlet of Coral Harbour __________________________________________________________________ Before: Mr. Justice Munroe Counsel (Applicant): J. Murdoch-Flowers Counsel (Respondent): M.

Leduc Location Heard: Coral Harbour, Nunavut Date Heard: November 23, 2021 Matters: Application to extend time for filing an application for judicial review pursuant to Rule 596(2) of The Rules of the Court. REASONS FOR DECISION (NOTE: This document may have been edited for publication) [ 1 ] Before me is an application to extend the time for filing an application for judicial review pursuant to Rule 596(2) of the Rules of

Court . [1] The Hamlet of Coral Harbour (“respondent” or “Hamlet”) removed applicant, Daniel Pee (“applicant” or “Mr. Pee”), as a Hamlet councillor. Mr. Pee filed his application for judicial review of this decision. The application for judicial review was filed outside the time required for such applications. Applicant now seeks an order of this court extending the time to bring his judicial review application. I. FACTS [ 2 ] Few facts are contested. I will first review the uncontested facts. A. The Uncontested [ 3 ] Applicant, Mr. Pee, is a lifelong resident of the Hamlet of Coral Harbour.

He is 42 years old, married with four children. His primary occupation is hunting. [ 4 ] Respondent, the Hamlet of Coral Harbour, is a municipal corporation located in Nunavut and subject to the Hamlets Act , RSNWT 1988, c. H-1. [ 5 ] Mr. Pee has been a member of the Hamlet’s Council for approximately 12 years. This is an elected office. Most recently, in October of 2019, Mr. Pee was again elected as a member of Council. [ 6 ] By letter to Mr. Pee from the Hamlet dated May 8, 2020, Mr. Pee was advised that the Hamlet’s Council had removed him from Council on the grounds that Mr.

Pee had made false allegations against a Hamlet official. [ 7 ] Mr. Pee was not given notice of the Council meeting at which his removal was considered nor was he provided an opportunity to be heard on the issue. [ 8 ] Said removal letter was sent by mail and received by Mr. Pee on a contested date but sometime after May 8, 2020. [ 9 ] Shortly thereafter, Mr. Pee contacted the Coral Harbour office of the Nunavut Human Rights Tribunal for assistance. They advised Mr. Pee that they could not assist and referred him to legal aid. [ 10 ] On June 11, 2020, Mr. Pee spoke by telephone to a legal aid lawyer.

There was initial confusion over the nature of the problem. [ 11 ] On June 17, 2020, legal aid counsel advised Mr. Pee that legal aid would need to see the letter at issue. Mr. Pee advised that he was going out on the land and he would send legal aid the letter when he returned. [ 12 ] Mr. Pee went out on the land. [ 13 ] On July 3, 2020, applicant’s wife sent legal aid the May 8, 2020 removal letter. [ 14 ] On August 18, 2020, Mr. Pee was approved for legal aid and Mr. Murdoch-Flowers was assigned this file. [ 15 ] Thereafter counsel for Mr.

Pee and counsel for the Hamlet discussed resolution. [ 16 ] On September 28, 2020, applicant filed and served his Originating Notice seeking to quash the Hamlet’s removal decision and for an extension of time to bring his application. B. The Contested

[ 17 ] Only two factual areas are contested: when the removal letter was received; and the nature of the time spent between approximately mid-May to July 3, 2020. i. When received [ 18 ] In his affidavit, Mr. Pee stated that he received the removal letter sometime during the week of May 11-15, 2020. [ 19 ] At his cross-examination, Mr. Pee said he received the removal letter by regular mail, he thought, around May 9, 2020. [ 20 ] May 8, 2020 was a Friday. May 9, 2020 was a Saturday.

May 11-15, 2020 was a Monday through Friday. [ 21 ] I have no evidence whether there was mail delivery on the weekends in Coral Harbour during this time. ii. Nature of time spent [ 22 ] It is uncontested that Mr. Pee’s primary occupation was hunting in 2020. [ 23 ] In his affidavit, Mr. Pee asserted that in the spring and summer of 2020, he “went out on the land to go hunting often, sometimes for weeks at a time.” [ 24 ] During his cross-examination, Mr. Pee said that everybody goes out hunting in June of every year. After he spoke to legal aid on June 11, 2020, he went out hunting. Mr.

Pee estimated he went on six hunting trips in June of 2020. He is mostly out hunting during the summer. [ 25 ] Mr. Pee also testified that sometime from the end of May to the second week of June 2020, he took his whole family out camping. II. LEGAL PRINCIPLES [ 26 ] The applicable Rules of Court provide as follows: 596(1) Unless otherwise provided by statute, where the relief sought in an application for judicial review is an order to set aside a decision or act, the originating notice shall be filed and served within 30 days after the decision or act to which it relates.

(2) Unless an enactment otherwise provides, the Court may extend the time for bringing an application for judicial review before or after the expiration of the 30 day time limit set out in subrule (1). [ 27 ] Granting an extension of time is discretionary, but, as stated by Cooper J. in Hughes v. GN , 2016 NUCJ 15 , at paras. 11-13 , the test for exercising said discretion is well-established with the following four factors: a. Has the applicant maintained a firm intention to appeal within the relevant time period? b.

Has the applicant provided a reasonable explanation for failing to appeal within the time period? c. Is there prejudice to the respondent in granting the extension? d. Is there so little merit in the proposed appeal that the court could reasonably deny the appellant this important right? [ 28 ] Satisfaction of all four factors is not strictly necessary. The longer the delay, a stricter application of all four factors will be appropriate.

[ 29 ] Two Federal Court of Appeal decisions, Canada (Attorney General) v. Larkman , 2012 FCA 204 , at para. 62 , and Thompson v. Canada (Attorney General) , 2018 FCA 212 , at para. 6 , direct that the motions court is to consider each factor and decide whether the interests of justice would be served by granting the extension of time. A. Position of Applicant [ 30 ] Applicant asserts that Mr. Pee satisfies all four of the factors. Mr. Pee intended to challenge his removal throughout. The delays attributed to him were due to his occupation as a hunter during the hunting season. This was his livelihood.

The Hamlet asserts no prejudice. And his application for judicial review raises significant issues. [ 31 ] According to applicant, it is in the interests of justice to grant the extension motion. B. Position of Respondent [ 32 ] Respondent challenges both Mr. Pee’s intent to appeal and his explanation for failing to appeal within the time required.

Respondent’s positions are intertwined. [ 33 ] Regarding the intent to appeal, respondent argues that the delays – especially between the receipt of the refusal letter and providing said letter to legal aid – demonstrate a lack of any firm intent to appeal. [ 34 ] According to respondent, Mr. Pee’s delay explanation is not reasonable. In this regard, respondent emphasizes Mr. Pee’s family vacation. III. PRINCIPLES APPLIED [ 35 ] Before addressing the issue now before me, I first decide the small factual disputes.

I do not consider either to be of much significance. [ 36 ] With regard to when the removal letter was received, I find that it was received sometime during the week of May 11-15, 2020. [ 37 ] With regard to the nature of the time spent, I find that it was spent almost entirely on hunting, Mr. Pee’s main source of living. He was responsible to support a family including four children.

A small amount of the time was spent on a family vacation. [ 38 ] I turn now to the particular circumstances of this case to determine whether an extension of time to file should be granted. [ 39 ] I must consider four factors: 1) firm intention to appeal within the relevant time; 2) reasonable explanation for failing to appeal within the time required; 3) prejudice to respondent; and 4) merits of the appeal. Each will be reviewed. A.

Intention to Appeal [ 40 ] Has the applicant maintained a firm intention to appeal within the relevant time period? [ 41 ] Upon consideration of the totality of the record evidence before me, Mr. Pee did maintain a firm intention to appeal his removal. He promptly sought legal assistance from the local Human Rights Tribunal office. On their referral to legal aid, Mr. Pee pursued legal assistance to challenge his removal through the legal aid system. B. Explanation for Delay

[ 42 ] From May to September of 2020, respondent challenges very little of the time. There is no challenge to the legal aid administration time nor to the “settlement” time when counsel for Mr. Pee was assigned. The challenged time is after receipt of the removal letter and the delivery of said letter to legal aid on July 3, 2020. Taking all into consideration and in context, I find that the explanation for said delay was reasonable. [ 43 ] Although there was a relatively small period of time on a family vacation on the land, the vast majority was spent hunting and that must be considered in context: Mr.

Pee is a traditional hunter and this was prime hunting time. The small period of vacation time does not convert the entire time into unreasonable. C. Prejudice to Respondent [ 44 ] Respondent does not assert any prejudice and I see none. The position from which Me. Pee was removed remains vacant. D. Merit of the Appeal [ 45 ] In my view, the judicial review application has at least two arguable grounds: 1) procedural fairness; and 2) the Hamlet’s authority to remove an elected councillor. I decide neither here. E.

Conclusion [ 46 ] In consideration of all the circumstances of this case, I find that applicant has met his burden to satisfy me that it is in the interests of justice to grant an extension of time to bring an application for judicial review. [ 47 ] Accordingly, pursuant to Rule 596(2), the motion for extension of time to file an application for judicial review is granted. IV. COSTS [ 48 ] Applicant is the prevailing party on this motion. Accordingly, costs of 2, 500.00 are awarded to Daniel Pee.

Respondent Hamlet of Coral Harbour shall pay to applicant Daniel Pee costs of $2,500.00 on this motion within 30 days of this decision. Dated at the City of Iqaluit this 26th day of November, 2021 ___________________ Justice K. Munroe Nunavut Court of Justice