Jane Doe (G.E.B. # 51) Respondent (Plaintiff) - v. -, 2021 NUCA 15

ᓄᓇᕘᒥ ᐅᓐᓂᓗᖅᓴᖅᑐᓄᑦ ᐃᖅᑲᖅᑐᐃᕕᒃ Nunavunmi Apiqhuidjutainut Uuktuffaarutit Nunavut Court of Appeal Cour d'appel du Nunavut Citation: Jane Doe v Government of Nunavut , 2021 NUCA 15 Date: 20211006 Docket: 10-21-4-CAC Registry: Iqaluit Between: Jane Doe (G.E.B. # 51) Respondent (Plaintiff) - and - Government of Nunavut Appellant (Co-Defendant) - and - The Hamlet of Pangnirtung Not party to the appeal Anonymized Judgment Disclaimer This judgment has been anonymized in accordance with an order issued by the NCJ pursuant to NCJ Practice Directive #1. _______________________________________________________ The Court: The Honourable Justice Karan Shaner The Honourable Justice Frederica Schutz The Honourable Justice Kevin Feehan

_______________________________________________________ Memorandum of Judgment Appeal from the Judgment by The Honourable Justice C.

Lyons Dated the 4th day of March, 2021 Filed on the 5th day of March, 2021 ( 2021 NUCJ 14 , Docket: 10-20-097-CVC) _______________________________________________________ Memorandum of Judgment _______________________________________________________ The Court: Introduction [ 1 ] The defendant/appellant, the Government of Nunavut, appeals a chambers decision dismissing its application to strike the statement of claim brought against it by the plaintiff/respondent, Jane Doe (G.E.B #51): Jane Doe v Hamlet of Pangnirtung and Government of Nunavut , 2021 NUCJ 14 (the “Decision”). [ 2 ] The Hamlet of Pangnirtung, co-defendant, takes no

part in this appeal. [ 3 ] The central question before the chambers judge was whether, assuming the facts pleaded to be true, it is plain and obvious that the pleading “discloses no cause of action” against the Government of Nunavut , or was frivolous, vexatious or an abuse of process: Rule 129(1)(

a) of the Rules of the Supreme Court of Northwest Territories , NWT Reg (Nu) 010-96 [ Rules ]. [ 4 ] We have reviewed the record which includes the Amended Statement of Claim, the submissions of counsel in chambers, the Decision of the chambers judge, plus the statutes and Rules cited by the parties.

We have also reviewed the parties’ written submissions on appeal, the parties having agreed that this appeal will be decided without oral argument. [ 5 ] We are unable to discern any error of law, mixed fact and law, or unreasonableness in the Decision which warrants appellate intervention. [ 6 ] Accordingly, the appeal is dismissed.

Background The Respondent’s Amended Statement of Claim [ 7 ] Prior to the chambers hearing of the appellant’s application to strike, the respondent amended her Statement of Claim as of right and provided a copy of the Amended Statement of Claim to the appellant; the amended pleading was properly before the chambers judge. [ 8 ] The Amended Statement of Claim alleges, inter alia , the following facts which, for the purposes of the application and this

appeal, must be assumed to be true: a. Jane Doe is an employee of the Hamlet of Pangnirtung, the first named defendant. b. Jane Doe was subjected to sexual harassment, non-consensual touching, and other misconduct of a sexual nature by her directsupervisor, who was the senior administrative officer in the Hamlet of Pangnirtung. c. While still in the employ of the Hamlet and during the currency of ongoing abuse, Jane Doe explicitly and directly told theappellant that she was being sexually harassed and abused at work by her direct supervisor. d.

The appellant, notwithstanding such knowledge, failed to take reasonable or any steps to prevent or mitigate Jane Doe’s ongoingabuse and harassment. e.

Section 191.1(1) of the Hamlets Act, RSNWT (Nu) 1988, c H-1, as amended, provides that the Government of Nunavut may “placethe affairs of the municipal corporation [Hamlet of Pangnirtung] under supervision, and appoint a supervisor of the affairs of themunicipal corporation, if the Minister has reason to believe that... (

c) it is in the best interests of the municipal corporation that its affairsbe supervised”. f. As a result of s 191.1(1) of the Hamlets Act, the Government of Nunavut controls the Hamlet of Pangnirtung, and further as theyrecommended her for employment at the Hamlet, had actual knowledge of her abuse and a general duty to the public, the appellant oughtto have intervened to protect Jane Doe and breached its duty to her in failing to do so. g.

Jane Doe, while in a vulnerable employment position, was seriously harmed by the abuse she suffered at the hands of her directsupervisor, and the Government of Nunavut ought to have foreseen or did foresee, that such harm would occur if it failed to takereasonable, or any, steps to intervene and protect Jane Doe. [9] In its reply brief before the chambers judge, the Government of Nunavut addressed Jane Doe’s Amended Statement ofClaim, maintaining that despite the amendments which included references to the foregoing provisions of the Hamlets Act, the pleadingsnonetheless disclosed no cause of action, or was frivolous, vexatious or an abuse of process and ought to be struck.

The Decision [10] In written reasons, the chambers judge set out R 129 of the Rules which provides: 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) is scandalous, frivolous or vexatious, iii) it may prejudice, embarrass or delay the fair trial of the action, or (iv) it is otherwise an abuse of the process of the Court. . . . [11] The chambers judge noted the parties agreed that the applicable test in determining whether a statement of claim should bestruck, is set out in Hunt v Carey Canada Inc, (SCC), [1990] 2 SCR 959 at 980, 74 DLR (4th) 321 [Hunt] as follows:“assuming that the facts as stated in the statement of claim can be proved, is it ‘plain and obvious’ that the plaintiff’s statement of claimdiscloses no reasonable cause of action?” He further noted that a “radical defect” making the plaintiff’s claim “certain to fail” against thedefendant, would be required to strike a claim for disclosing no cause of action, citing Odhavji Estate v Woodhouse, 2003 SCC 69 atpara 15, [2003] 3 SCR 263 [Odhavji]: Decision at paras 3-4. [12] The chambers judge then summarized the allegations against the appellant contained in the Amended Statement of Claim, andthe position of the parties on the application to strike.

He determined that the respondent’s pleadings disclosed a reasonable cause ofaction against the appellant; namely, that the facts gave rise to an “enforceable claim of sexual harassment against an employee of theHamlet”, and that it was not plain and obvious that the Hamlet is entirely independent of the appellant given its supervisory role underthe Hamlets Act.

More specifically, he found that given the appellant’s power to supervise and manage the Hamlet, and that the appellantwas told of the harassment, the appellant’s liability was an “arguable issue”: Decision at paras 13-14. [13] The chambers judge further found that the pleadings were not frivolous, vexatious or an abuse of process, but rather disclosedincidents of sexual harassment by a Hamlet employee, and the alleged reasons for both the Hamlet’s and the appellant’s responsibility:Decision at paras 15-17.

Grounds of Appeal [14] On appeal, the appellant maintains that the facts as pleaded by the respondent simply do not support a cause of action againstthe Government of Nunavut. It submits the chambers judge erred by: 1. applying the wrong test for striking a statement of claim for disclosing no cause of action; 2. finding that the respondent’s claim against the appellant discloses a cause of action;

3. finding that the respondent’s claim against the appellant is not frivolous, vexatious, or otherwise an abuse of process; and 4. issuing insufficient reasons for judgment; Standard of Review [ 15 ] Whether a pleading discloses a cause of action raises a question of law, reviewable for correctness.

However, the decision to strike a statement of claim is discretionary and is reviewable on a standard of reasonableness: Nammo v Canada (Justice and Attorney General ) , 2015 ABCA 389 at para 7 , 609 AR 189; Ernst v Alberta (Energy Resources Conservation Board) , 2014 ABCA 285 at para 11 , 580 AR 341 [ Ernst ]. [ 16 ] More specifically, “application of the Rules to a particular set of facts is a mixed question of fact and law, and the standard is palpable and overriding error: Housen at para. 36.

If the law is correctly stated, then to the extent that there is a discretion involved in the decision to strike, the decision must be reasonable: O’Connor Associates at para. 12”: Ernst at para 11 . Analysis 1. The chambers judge applied the correct legal test under R 129(1)(a)(

i) and did not err in determining that the respondent’s Amended Statement of Claim discloses a reasonable cause of action [ 17 ] The appellant acknowledges that the chambers judge correctly set out the relevant test from Hunt for striking a statement of claim; namely, whether it was “plain and obvious” that the Amended Statement of Claim disclosed “no reasonable cause of action”.

As noted above, he also provided that Odhavji emphasized the need to prove a “radical defect” in the statement of claim making it “certain to fail” . [ 18 ] However, the appellant argues that the reasons of the chambers judge illustrate that while he stated the correct test from Hunt , he actually applied the test for

summary judgment in assessing the Amended Statement of Claim. We do not agree. First, the chambers judge correctly set out that for the purpose of an application to strike, the pleadings in the Amended Statement of Claim are presumed to be true: Decision at para 4, citing Hunt and Odhavji . [ 19 ] The chambers judge then accurately summarized the material facts and allegations against the appellant contained in the respondent’s Amended Statement of Claim.

This included that the respondent was hired by the Hamlet upon the recommendation of the appellant, and that both the Hamlet and the appellant were notified that she was being harassed by her direct supervisor, the senior administrator for the Hamlet, while the harassment was ongoing. She stated neither took any action to protect her from this harassment.

Further, the chambers judge understood the claim included that the same senior administrator of the Hamlet prematurely terminated the respondent’s employment as reprisal for rebuffing his unwanted advances, forcing the respondent and her child to vacate their place of residence, at their own expense.

The respondent also claimed that as a result of these events, she suffered psychological distress, loss of reputation, feelings of humiliation and betrayal, additional financial burdens, and the exacerbation of pre-existing illnesses and problems: Decision at paras 5-9. [ 20 ] The chambers judge then assessed those facts, presumed to be true, to determine whether they disclosed a reasonable cause of action.

He found at paras 13-14 of the Decision: The facts as pled give rise to an enforceable claim of sexual harassment against an employee of the Hamlet. . . it is not plain and obvious that the Hamlet is entirely independent of the [ Government of Nunavut ] .

Indeed, as one example of the relationship between the Hamlet and the [ Government of Nunavut ], counsel noted that pursuant to s.191.1 of the Hamlets Act , the [ Government of Nunavut ] 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. . . . [T]he Court is to determine whether the pleading raises an arguable issue.

Given that the [ Government of Nunavut ] 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 [ Government of Nunavut ’s] liability for the Hamlet’s actions to be arguable. Ultimately, whether the [ Government of Nunavut ] 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 . [Emphasis added] [ 21 ] There is no basis to conclude that the chambers judge erred by applying the test for

summary judgment and focusing erroneously on whether there was a genuine issue requiring a trial. Rather, much of these reasons track the language in Hunt and Odhavji as to the test to strike pleadings. It is clear from the reasons that based on the facts presumed to true, the pleadings were assessed as to whether they were “arguable”, or whether it was “plain and obvious” that the claim was “certain to fail”. Ultimately, the chambers judge found that there was an “arguable” cause of action against the appellant based on the facts and legislation pleaded. As was stated in Hunt at 980: . . .

As in England, if there is a chance that the plaintiff might succeed, then the plaintiff should not be "driven from the judgment seat". Neither the length and complexity of the issues, the novelty of the cause of action, nor the potential for the defendant to present a strong defence should prevent the plaintiff from proceeding with his or her case.

Only if the action is certain to fail because it contains a radical defect . . . should the relevant portions of a plaintiff's statement of claim be struck out . . . . [Emphasis added] [ 22 ] More recently in R v Imperial Tobacco , 2011 SCC 42 , [2011] 3 SCR 45 [ Imperial Tobacco ], the Supreme Court of Canada provided that “[a]nother way of putting the test is that the claim has no reasonable prospect of success. Where a reasonable prospect of success exists, the matter should be allowed to proceed to trial”.

[23] It is trite to say that an “arguable issue”, as found by the chambers judge, is not “certain to fail”, nor does it convey "noreasonable prospect of success”. While the appellant objects to the chambers judge’s statements to the effect that there were “issues to beargued at trial” or “issues for the trial judge”, those statements when viewed in the context of the entire hearing and the reasons, were notused as the test to strike the pleadings, nor were they used to make a

summary judgment about whether the pleadings raised a genuineissue requiring a trial. Rather, the statements were made in the context of explaining why the Amended Statement of Claim raised areasonable cause of action, particularly in response to the appellant’s argument that the respondent’s pleadings could not possibly resultin success. There is no error in this respect. [24] We agree with the chambers judge’s findings that the respondent’s claim disclosed a reasonable cause of action.

Morespecifically, the chambers judge reasonably found that the Amended Statement of Claim “should be allowed to proceed to trial”:Imperial Tobacco at para 17. The claim that the appellant owed a duty of care to the respondent and/or a duty to intervene, was notwithout basis, but was rooted in the specific facts pleaded including the appellant’s knowledge of the respondent’s harassment by aHamlet employee, s 191.1 of the Hamlets Act, and the appellant’s involvement in recommending the respondent’s employment with theHamlet. This is sufficient.

As was stated in Hunt at 980, the respondent should not be "driven from the judgment seat" if there is achance her claim may succeed. [25] Moreover, even if no such claim has previously been argued under s 191.1 of the Hamlets Act, claims are not to be dismissedmerely because they are novel. As the Supreme Court stated in Imperial Tobacco at para 21: Valuable as it is, the motion to strike is a tool that must be used with care. The law is not static and unchanging. Actions that yesterdaywere deemed hopeless may tomorrow succeed. Before McAlister (Donoghue) v. Stevenson, (FOREP), [1932] A.C. 562(U.K.

H.L.) introduced a general duty of care to one's neighbour premised on foreseeability, few would have predicted that, absent acontractual relationship, a bottling company could be held liable for physical injury and emotional trauma resulting from a snail in abottle of ginger beer. Before Hedley Byrne & Co. v. Heller & Partners Ltd., [1963] 2 All E.R. 575 (U.K. H.L.), a tort action for negligentmisstatement would have been regarded as incapable of success.

The history of our law reveals that often new developments in the lawfirst surface on motions to strike or similar preliminary motions, like the one at issue in McAlister (Donoghue) v. Stevenson. Therefore,on a motion to strike, it is not determinative that the law has not yet recognized the particular claim. The court must rather ask whether,assuming the facts pleaded are true, there is a reasonable prospect that the claim will succeed. The approach must be generous and err onthe side of permitting a novel but arguable claim to proceed to trial.

See also Ernst at paras 14-15. [26] Although the appellant seems to premise its argument that there is no reasonable cause of action on the limitations of avicarious liability claim in this case, the respondent’s claim in not solely one of vicarious liability but seeks to establish direct liabilitythrough a distinct duty of care. Regardless, it was not unreasonable for the chambers judge to disagree with the appellant’s contentionthat the only proper

interpretation of the Hamlets Act precluded the appellant from stepping in to supervise the Hamlet’s discrete humanresources issue, that this was solely a human resources issue, or that as co-defendant government entities, the Hamlet and the appellantcould not both be vicariously liable for the acts of the supervisor. It is not plain and obvious that this is so.

As an example, two 2005decisions accepted that, in certain circumstances, it was possible in law to have joint vicarious liability: Blackwater v Plint, 2005 SCC58, [2005] 3 SCR 3; Viasystems v Thermal Transfer (Northern) Ltd, [2005] EWCA Civ 1151; [2006] QB 510, [2005] 4 All ER 1181.While these cases are not meant to be seen as dispositive in this matter, they do tend to lend support to the proposition that while therespondent’s claim against the appellant may be novel in the sense that the precise intersection of facts, law and statute have never beendecided by a court, we, like the chambers judge, are unable to conclude there is “no reasonable prospect of success”. [27] In

summary, we are not persuaded the chambers judge erred by applying the wrong test for striking a pleading for disclosingno cause of action, or in finding the Amended Statement of Claim is arguable. Accordingly, the grounds of appeal rooted in the chambersjudge’s articulation and application of the test, and his understandable disinclination, in an evidentiary vacuum, to engage in a detaileddiscourse about proposed or potential defences at this preliminary interlocutory stage, are dismissed. 2.

The chambers judge’s finding that the respondent’s Amended Statement of Claim was not frivolous, vexatious, orotherwise an abuse of process, was reasonable [28] We also dismiss the appellant’s claim that the chambers judge erred by finding the Amended Statement of Claim was notfrivolous, vexatious or an abuse of process.

We agree with the chambers judge that the “plaintiff’s claim contains a concise statement offacts identifying specific incidents of sexual harassment, indicates the parties alleged to be responsible, and the reasons for theirresponsibility.” [29] This is not a case where no material facts were pleaded, or a frivolous, vexatious or abusive claim is apparent on the face ofthe pleadings. Again, the test to strike a claim does not look to or require evidence, but assumes the facts pleaded are true.

Here, thosefacts are sufficient to found the claim, and there is no abusive nature apparent in the pleadings themselves, which would supportresorting to R 129 to strike the pleadings: Scaduto v The Law Society of Upper Canada, 2015 ONCA 733 at paras 7-9, 343 OAC 87,leave to appeal dismissed [2015] SCCA No 488. [30] As was said in Imperial Tobacco at para 21, “the motion to strike is a tool that must be used with care”.

To strike a claimbecause it is frivolous or vexatious, the Court must be satisfied that the party’s pleading is grandiose, making claims no reasonableperson would expect to obtain, or the pleadings exhibit characteristics of “rambling unclarified discourse which makes the task ofidentifying the issues in the case difficult or impossible”. Such pleadings often include odd attachments, inappropriate or intemperatelanguage, and are carried forward in multiple proceedings which seek to engage the same issues: VanSluytman v Department of Justice(Canada), 2017 ONSC 481 at paras 3, 6, [2017] OJ No 3359 [Van Sluytman].

None of those elements are present in this case. [31] Further, we agree with the chambers judge that the facts in Van Sluytman are wholly distinguishable from the pleadings inthe Amended Statement of Claim, and do not assist the appellant in this matter: Decision at paras 15-16. In Van Sluytman, the plaintiffhad commenced numerous actions arising from “general discontent with his interactions with the police, social work, mental health, and

medical personnel over a number of years.” Van Sluytman’s statement of claim contained no facts, engaged in “rambling unclarified discourse”, sought grandiose damages in the millions of dollars, and the relevant limitation period for the claims had lapsed: Van Sluytman at paras 1-2, 6, 12, 14 .

While appellant’s counsel contended that both Van Sluytman and the respondent claimed governmental liability stemming from its responsibility to “train public servants adequately”, the chambers judge quite properly held that a general similarity between a claim in Van Sluytman and this one aspect of the respondent’s pleading, was “not enough to bring this matter under the umbrella of frivolous, vexatious, or abusive proceedings”: Decision at para 16. [ 32 ] While every case will be proved and decided on its own unique facts, at this juncture we conclude the respondent’s Amended Statement of Claim is not frivolous, vexatious, or an abuse of process.

This ground of appeal is dismissed. 3. The chambers judge’s reasons were sufficient [ 33 ] Lastly, there is no merit to the appellant’s claim that the written reasons of the chambers judge were insufficient. [ 34 ] The reasons not only make clear that the correct law was applied in this case, but that the chambers judge exercised his discretion in a manner that was reasonable and devoid of any palpable or overriding error.

As the appellant acknowledges, the chambers judge was not required to set out every finding or conclusion in the process of arriving at his decision, only sufficient reasons to demonstrate that he turned his mind to the issues in dispute, and why he reached the conclusion he did.

As set out above, the chambers judge’s findings as to the facts plead are reasonable, and logically linked to his conclusion that the appellant had not met the test to strike the pleadings as either disclosing no reasonable cause of action, or as a result of being vexatious, frivolous or an abuse of process. [ 35 ] Read as a whole, in the context of the pleadings, the arguments made on the application, and with an appreciation of the purpose for which these reasons were given, the reasons are sufficient to allow for meaningful appellate review and support the chambers judge’s decision not to strike the Amended Statement of Claim: see generally R v REM , 2008 SCC 51 , [2008] 3 SCR 3. [ 36 ] This ground of appeal is dismissed.

Disposition [ 37 ] The appeal is dismissed; costs follow the event. Written Submissions filed on April 12, May 17, July 30, 2021 Memorandum filed at Iqaluit, Nunavut this 6th day of October, 2021 Authorized to sign for: Shaner J.A. Schutz J.A. Feehan J.A. Appearances: G.E. Budden

for the Respondent W. Lu for the Appellant