Luhowy v Government of Nunavut, 2013 NUCJ 21

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: Luhowy v Government of Nunavut, 2013 NUCJ 21 Date: 20131031 Docket: 18-10-634-CVC Registry: Iqaluit Plaintiff: George Luhowy -and- Defendant: Government of Nunavut ________________________________________________________________________ Before: The Honourable Mr. Justice A. Mahar Counsel (Plaintiff): Self-represented Counsel (Defendant): A. Silk Location Heard: Iqaluit, Nunavut Date Heard: August 22-23, 2013 Matters: Nunavut Rules of Court, R.N.W.T.

R-101-96, Rule 346, as duplicated for Nunavut by s.29 of the Nunavut Act, S.C. 1993, c.28 ; Breach of Contract; Wrongful Dismissal. Decision for Trial Motion For Dismissal (NOTE: This document may have been edited for publication)

I. INTRODUCTION [ 1 ] George Luhowy, the Plaintiff, brought an action for damages flowing from the termination of his employment with the Government of Nunavut while he was a probationary employee. He is self-represented in this action and, I can only assume, brought himself to Iqaluit at significant personal expense to conduct this trial. [ 2 ] He presented in evidence a large number of documents, primarily correspondence between himself and the Defendant, filed as Joint Documents. He also testified on his own behalf and was cross-examined by counsel for the Defendant.

He indicated, on a number of occasions, that he expected that evidence would either be more fully explained or actually provided through the testimony of anticipated witnesses for the Defendant. [ 3 ] At the conclusion of the case for the Plaintiff, the Defendant brought a motion under s. 346 of the Rules of the Supreme Court of the Northwest Territories, R.N.W.T, R-010-96, as duplicated for Nunavut by s. 29 of the Nunavut Act, S.C. 1993, c. 28 [Rules], on the grounds that, on the facts and the law, no case had been made out. I heard submissions from Mr.

Luhowy, who again indicated that he had expected the witnesses to testify. He appeared taken aback by the possibility that they would not. [ 4 ] On the face of it, there is some merit to the Defendant’s motion. It is not frivolous, but neither is it conclusively established. It is also clear that Mr. Luhowy is not capable of responding substantively to the discreet issue this motion raises. [ 5 ] While self-represented litigants are expected to inform themselves of the Rules , the Court cannot in good conscience hold such parties to the same standard it would expect of counsel. [ 6 ] In my view, the case Mr.

Luhowy attempts to make for wrongful dismissal is problematic. Had he been represented, I would have challenged counsel respecting aspects of the case within the context of a “no case to meet” motion as allowed by Rule 346. [ 7 ] It should not come as any surprise that Mr. Luhowy did not appreciate the strict evidentiary burden of proof he was subject to. He was expecting the Defendant’s anticipated witnesses to testify. He was expecting to cross-examine them. [ 8 ] Mr. Luhowy has treated the Court and opposing counsel with respect and he has tried to be as efficient as possible in his use of Court time.

It is a well-worn truism that justice must not only be done but must also be seen to be done, and the dismissal of this action at this point in the trial would not give the appearance of justice. [ 9 ] The motion is denied. II. COSTS [ 10 ] The Defendant having been unsuccessful in this application for

summary dismissal, I award costs to the Plaintiff Mr. Luhowy. [ 11 ] Prior to adjourning in order to consider this application, both parties agreed that, in the event that the trial was not summarily dismissed, further evidence and appearances could be done by telephone. While I have no doubt that both parties intend to honour this agreement, I believe that it would not be fair to expect Mr. Luhowy to conduct the conclusion of this trial other than in person, nor should he have to shoulder the financial burden of another trip to Iqaluit. So this order for costs is to include the cost of a round trip ticket to Iqaluit from Ottawa. Dated at the City of Iqaluit this 31th day of October, 2013

_______________________ Justice A. Mahar Nunavut Court of Justice