Government of Nunavut v. Swoboda, 2017 NUCA 6

In the Court of Appeal of Nunavut Citation: Government of Nunavut v. Swoboda, 2017 NUCA 6 Date: 20171011 Docket: 08-17-002-CAC Registry: Iqaluit Between: Government of Nunavut as Represented by the Minister of Health George Hickes Appellant - and - Irene Swoboda Respondent _______________________________________________________ The Court: The Honourable Mr. Justice Ronald Berger The Honourable Mr. Justice Thomas W. Wakeling The Honourable Madam Justice Frederica Schutz _______________________________________________________ Memorandum of Judgment Appeal from the Judgment by The Honourable Mr. Justice N.A. Sharkey Dated the 16th day of January, 2016

(Docket: 08-16-523-SCU) _______________________________________________________ Memorandum of Judgment _______________________________________________________ The Court: [ 1 ] The government unsuccessfully sought to set aside a default judgment entered by the Registrar pursuant to Rule 12.1(1)(

a) of the Small Claims Rules . Rule 12.1(1)(

a) reads as follows: 12.1.

(1) If a defendant does not file a Reply within 30 days from the date of service of Notice of the Claim, a claimant may request the Clerk to note the defendant in default and, (

a) if the claim is for a debt or a specific sum of money fixed by the terms of a contract, to enter default judgment in the amount claimed. [---] [ 2 ] The presiding judge was of the view that the underlying pleading in the Nunavut Court of Justice amounted to a claim for “a debt or specific sum of money fixed by the terms of a contract” thereby authorizing the Registrar to note the appellant in default and to enter judgment in accordance with Rule 12.1(2)(

a) which reads as follows: 12.1(2) After noting a defendant in default, the Clerk shall, (

a) if the claim is for a debt or a specific sum of money fixed by the terms of a contract, enter judgment in the amount claimed and prepare a Certificate of Judgment (Form 11). [ 3 ] The respondent’s pleading states, in part: “I wish to claim medical travel expenses for a medical trip January 14, 2016 – January 23, 2016.” The “attached information” includes the title “Appeal to Dept. of Health; Health Services Medical Travel Policy.” An attached letter penned by the respondent and dated August 29, 2016 stated that she received advice in December 2015 that the government would not be approving her anticipated medical travel.

The letter also confirms her unsuccessful appeal from that decision and records that “the appeal was reviewed by Feloreh Saremi, acting Director of Health programs – South Baffin and denied on April 2, 2016.” [ 4 ] The respondent’s letter goes on to state under the rubric of the “basis of claim” that the denial of coverage “is a breach of my entitlements under the Health Act in general and the Health Services Medical Travel Policy in particular, and that as a result of the breach I’ve incurred economical loses totalling $9,984.79.” [ 5 ] Under the Small Claims Rules , the government had until Friday, November 18, 2016 to file a Statement of Defence.

It failed to do so. It was not until Wednesday, November 23, 2016 (being unaware that the Registrar had entered Default Judgment) that a Statement of Defence was proffered. [ 6 ] The Reasons for Judgment in the Court below note that “Ms.

Swoboda has pleaded or made an ordinary matter of fact claim for money she believed were owing to her...” (at pg. 6) [ 7 ] Not all claims for monies fall under the rubric of a “debt or specific sum of money fixed by the terms of a contract.” An alleged breach of entitlements under the Canada Health Act , RSC 1985, c C-6 in general and the Health Services Medical Travel Policy in particular, that gives rise to a claimed “incurred economic loss” is, in our opinion, not a claim that satisfies the requirement of Rule 12.1(

a) of the Small Claims Rules . [ 8 ]

Section 7.1 of the Medical Travel Policy states: “Financial resources required under this policy are conditional on approval of funds in the Main estimates by the Legislative assembly and there being a sufficient unencumbered balance for the fiscal year for which the funds would be required.” [ 9 ] There is nothing in the record that evidences the status of that “balance for the fiscal year for which the funds would be required.” Nor is there sufficient evidence on which the Court below could properly determine eligibility for coverage by the Minister or his designates on this record. [ 10 ] We need not decide whether the Nunavut Court of Justice in the context of a Small Claim has the ability, in any event, to either (

a) embark on what arguably constitutes judicial review of decisions of the Minister under the Canada Health Act or, for that

matter, under the Medical Travel Policy, nor (

b) whether jurisdiction to undertake such a review lies exclusively with the Nunavut Court of Justice pursuant to ss. 591-606 of the Nunavut Rules of Court . [ 11 ] We need only decide whether the Reasons below erred in concluding that the Registrar properly exercised her jurisdiction when signing the default judgment in this case. [ 12 ] The respondent did not in her pleadings nor in written or oral submissions in this Court demonstrate a right to payment of a given, ascertainable amount agreed upon as between the respondent and the appellant. [ 13 ] The appeal must be allowed, the Default Judgment set aside and the matter returned to the Court below. [ 14 ] Rule 12.6(2) reads as follows: 12.6(2) A defendant applying to set aside the noting of default or subsequent judgment must establish each of the following: (

a) a meritorious defence to the claim; (

b) a reasonable explanation for the default; (

c) that the motion to set aside the noting of default or subsequent judgment was filed as soon as practicable in all the circumstances. [ 15 ] We are of the view that the appellant has demonstrated that on this record the provisions of Rule 12.6(2) are satisfied and that, given the absence of evidence of prejudice, the Statement of Defence, though filed late, may now be filed. [ 16 ] Judgment accordingly. Appeal heard on September 19, 2017 Memorandum filed at Iqaluit, Nunavut this 11 th day of October, 2017 Berger J.A. Wakeling J.A. Schutz J.A. Appearances: Adrienne Silk Toby Kruger for the Appellant Michael Penner for the Respondent