Polar Supplies Ltd. v Cape Dorset (Hamlet), 2013 NUCA 11

In the Court of Appeal of Nunavut Citation: Polar Supplies Ltd. v Cape Dorset (Hamlet), 2013 NUCA 11 Date: 20131115 Docket: 03-12-6 CAC Registry: Iqaluit Between: Polar Supplies Ltd. Applicant/Appellant -and- The Municipal Corporation of the Hamlet of Cape Dorset Respondent _______________________________________________________ The Court: The Honourable Madam Justice Constance Hunt The Honourable Mr. Justice Clifton O'Brien The Honourable Mr. Justice Frans Slatter _______________________________________________________ Memorandum of Judgment Appeal from the Decision The Honourable Madam Justice B. Tulloch

Dated the 13th day of June, 2012, Filed on the 27th day of July, 2012 (2012 NUCJ 9 , 2012 NUCJ 09, Docket: 03-10-433-CVC) _______________________________________________________ Memorandum of Judgment _______________________________________________________ (NOTE: This document may have been edited for publication) The Court: [1] The appellant has had a long-standing dispute with the respondent municipality about the latter’s provision of services to the public.Section 53.94 of the Hamlets Act, R.S.N.W.T. 1988, c.

H-1, as amended by SNu 2003, c. 3, permits a Hamlet to provide services, but ifthat “would result in competition with similar services provided by the private sector, the approval of the Minister is required”. [2] The respondent does not deny its obligation not to compete without ministerial approval. It acknowledges that there might have beensome breaches in the past, but indicates that it is now making efforts to comply with its legal obligations. The applicant applied for aninterim injunction preventing the respondent from supplying competing services without the necessary permission.

The first applicationwas made in December 2010 and dismissed in March of 2011, with leave to reapply if circumstances changed: Polar Supplies Ltd. vCape Dorset (Hamlet), 2011 NUCJ 5, 2 CLR (4th) 18. The applicant applied again in April of 2012, and again the injunction was denied:Polar Supplies Ltd. v Cape Dorset (Hamlet), 2012 NUCJ 9, 13 CLR (4th) 133. The appellant now appeals that second denial. [3] The chambers judge concluded that the applicant had shown a serious issue to be tried, and that the balance of convenience favoredgranting the injunction.

The chambers judge was not, however, satisfied that the applicant had demonstrated irreparable harm. Theirreparable harm alleged was the prospect of the appellant being forced into bankruptcy by virtue of the unauthorized competition. [4] The appellant argues that the chambers judge confused the test by concluding that the conflicting affidavits made the granting of aninjunction impossible.

Once the chambers judge had concluded that there was a serious issue to be tried, the appellant argues that it wasan error to further consider any conflicts in the affidavits. [5] There appears to be some confusion here about the proper role of an interlocutory injunction. Such an injunction is designed to holdthe status quo pending a trial. It has now been over 2 1/2 years since the first injunction application, and there is no reason why thisaction could not have been taken to trial.

A trial court could by now have determined the damages suffered by the appellant, renderingmoot any question of irreparable harm. [6] The chambers judge correctly noted that there were serious conflicts on the evidence as to whether the respondent was in fact inbreach of its obligations. The respondent’s chief operating officer has deposed that the work complained of was legitimate municipalwork, or was done without charge as a courtesy to others, or was done by municipal employees while moonlighting, and some was donewith Ministerial approval.

On this record, it was impossible to say whether there were any breaches in the past as complained of. Further,the appellant requests a generic injunction that the respondent not compete with the private sector, in essence a general injunction that therespondent obey the law. Given the uncertainty at a factual level about which of the respondent’s activities actually breach the HamletsAct, such a generic injunction would only lead to more conflict. If the appellant wants relief it must go to trial and prove its case.

Thechambers judge correctly concluded that this matter should be taken to trial to have all the outstanding factual disputes resolved. [7] In the circumstances, considering the factual disputes and the amount of time that has passed, there is no basis upon which thisCourt could now declare that an interlocutory injunction should be granted. As announced at the conclusion of the oral argument, theappeal is dismissed. [8] The successful respondent is entitled to taxed costs of the appeal, including costs of the applicant’s unsuccessful motion to introducefurther evidence.

While formal offers are not specifically mentioned in the Civil Appeal Rules, they can affect costs. However, therespondent is not entitled to enhanced costs of the application because of the offer it made. The application for an injunction was filed onNovember 7, 2012, returnable on December 17, 2012. On November 30, 2012, the respondent made a formal offer to allow for anabandonment of the application without costs. A bare offer to allow withdrawal of a step that has just been commenced contains noelement of compromise.

Such an offer generally cannot be used just to elevate the scale of costs otherwise applicable to that step: Kerr vKerr, 2001 ABCA 152 at para. 5, 293 AR 384; Allen (Next Friend of) v University Hospitals Board, 2006 ABCA 101 at paras. 13-17,384 AR 23. [9] In order to avoid further costs, the respondent is entitled to taxable fees of $4,000, disbursements of $244.03, and GST of $212.20. Appeal heard on September 24, 2013

Memorandum filed at Iqaluit, Nunavut This 15th day of November, 2013 ________________________________________ Authorized to sign for: Hunt J.A. ________________________________________ O'Brien J.A. ________________________________________ Slatter J.A. Appearances: S. Cooper and T. Meyers for the Applicant/Appellant S. Molgat for the Respondent