Baffinland Iron Mines Corporation v Naqitarvik, 2022 NUCA 10

ᓄᓇᕘᒥ ᐅᓐᓂᓗᖅᓴᖅᑐᓄᑦ ᐃᖅᑲᖅᑐᐃᕕᒃ Nunavunmi Apiqhuidjutainut Uuktuffaarutit Nunavut Court of Appeal Cour d'appel du Nunavut Citation: Baffinland Iron Mines Corporation v Naqitarvik, 2022 NUCA 10 Date: 20221208 Docket: 11-21-007 CAC Registry: Iqaluit Between: Baffinland Iron Mines Corporation in its capacity as General Partner of Baffinland Iron Mines LP Respondent - and - Tom Naqitarvik, Jonathan Pitula, and Christopher Akeeagok Appellants - and - Namen Inuavak, Daniel Inuarak, and Andy Kalluk et al Not Parties to the Appeal _______________________________________________________ Reasons for Decision of The Honourable Justice Frans Slatter _______________________________________________________ Application to Strike Appeal

_______________________________________________________ Reasons for Decision of The Honourable Justice Frans Slatter _______________________________________________________ [ 1 ] The respondent Baffinland Iron Mines Corporation has applied for an order striking this appeal for delay. The appeal is from an interlocutory injunction restraining the appellants from blocking access to the respondent’s mining operations at Mary River on northern Baffin Island: Baffinland Iron Mines Corp v Inuavak , 2021 NUCJ 11 .

Facts [ 2 ] Commencing about February 4, 2021, a group of protesters blocked access to the Tote Road and the airstrip that provide access to Baffinland’s mine. The appellants admit in their factum that the blockages were part of a “careful and tempered plan to impede the economic activity at the mine by blocking access”.

Their objectives were undefined, but included drawing attention to what they perceived to be the cultural and environmental impact of the mine, which had been in operation for many years. [ 3 ] The blockades essentially stopped production at the mine, and on February 9, 2021 Baffinland applied for an ex parte injunction to end the blockades. The chambers judge directed that the protesters be given notice of the application and adjourned it until the next day, when counsel appeared on behalf of three of the protesters.

Counsel requested an adjournment but an interim order was given to ensure that employees at the mine site were able to leave: 2021 NUCJ 11 at para. 10 . Shortly thereafter, the protesters left the mine site. [ 4 ] Baffinland, however, maintained its application for an interlocutory injunction to prevent further blockades. When the matter came back before the court on February 13, 2021 counsel sought an adjournment to secure evidence, to obtain instructions from the clients, and to cross-examine on the affidavits.

The chambers judge, however, proceeded to hear the application, and on March 2, 2021 granted the interlocutory injunction which is the subject of this appeal. The order provided that the defendants could apply on two days notice to vary or set aside the injunction. [ 5 ] Cross examination of Baffinland’s affiants occurred on February 18-19, 2021. Objections to the scope of the cross- examination and the use of the transcripts were largely dismissed on March 23, 2021: Baffinland Iron Mines (General Partner of) v Inuavak , 2021 NUCJ 22 .

By this time the proceedings had evolved into an application to set aside the interim injunction: 2021 NUCJ 22 at para. 25. The Appeal [ 6 ] The Notice of Appeal was filed on April 1, 2021. The chronology is: March 2, 2021 Interlocutory injunction granted April 1, 2021 Appeal filed July 21, 2021 Spoken to at the Speak to List October 1, 2021 Deadline for filing the appeal record and appellants’ factum: R. 12(3)(

b) and 16(1)(

b) November 9, 2021 Speaking to List; Court notes prospect of an application to strike March 8, 2022 Respondent warns that it will apply to strike the appeal for delay March 16, 2022 Spoken to at the Speak to List; appellants change counsel April 1, 2022 Deadline for scheduling oral argument: R. 50(c)(ii) July 21-22, 2022 Appeal record filed July 20, 2022 Spoken to at the Speak to List October 28, 2022 Application to strike appeal filed November 8, 2022 Speaking to the List; appellants’ factum filed The respondent has not yet filed its factum, and the appeal has not been scheduled for oral argument. The earliest that the appeal could be

heard is May 9, 2023. Striking an Appeal for Delay [ 7 ] Rule 50 allows a single appeal judge to strike an appeal for delay: 50. An appeal may be struck by a single appeal judge if (

a) the appellant has failed to file the Appeal Record within the time period set out in these rules; (

b) the appellant has failed to file its factum before the expiry of the deadline for filing the factum; or (

c) an appeal has not been scheduled for oral argument before the earlier of (

i) six months after the deadline for the filing of the last factum in the appeal, and (ii) 12 months after the filing of the notice of appeal. All three of the preconditions to striking an appeal have been satisfied in this case. [ 8 ] The decision to strike an appeal for delay is discretionary. The factors to be considered will vary depending on the facts, but some commonly recurring considerations are: (

a) the length of the delay, and the adequacy of any explanation; (

b) the merits of the appeal; (

c) whether previous rulings about timelines and prosecution of the appeal have been breached; (

d) whether indulgences regarding the prosecution of the appeal have previously been granted; (

e) the prejudice to either party; (

f) whether the appeal is just one component of a larger manifestation of improper litigation. See Allen v University of Lethbridge Students’ Union , 2013 ABCA 176 at para. 5 , 553 AR 124; Wong v Chambers , 2011 ABCA 278 at para. 5 [ 9 ] There has been significant delay in prosecuting this appeal. The appeal record was filed nearly 10 months late. The appellants’ factum was filed 13 months late, after the application to strike had been filed.

Scheduling the oral argument is already nine months late, and the earliest the oral argument can now be heard is two years after the appeal was filed. [ 10 ] Some indulgences have been granted. Assurances that timely steps would be taken given at various speakings to the list were not fulfilled. The appellants were warned that an application would be brought to strike the appeal eight months before the application was actually filed. [ 11 ] The appellants apologize for the delay but do not offer any satisfactory explanation other than for one necessary change of counsel.

They assert that they have never shown an intention to abandon this appeal. Their primary argument is that the applicant has not demonstrated any prejudice. There is inherent prejudice in delay, for example in the sense that an uncertainty about the applicant’s legal position remains. On the other hand, the injunction has remained in effect, giving the applicant the relief it desired. [ 12 ] The appellants argue that they have limited legal resources, but they have chosen to allocate their resources by launching this appeal, issuing a counterclaim, and filing a certificate of lis pendens on the applicant’s title.

They cannot expect that the applicant will merely acquiesce in these legal steps simply because the appellants have limited resources. [ 13 ] In this situation, striking the appeal would not deprive the appellants of all relief, as there are alternative remedies open to them: (

a) the injunction under appeal is interlocutory only. The issue must ultimately be taken to trial to set it aside or convert it into a permanent injunction. (

b) The injunction itself states that any party can apply on two days notice to vary or set it aside. The substantive grounds of appeal raised by the appellants could be dealt with other than by prosecuting this appeal. While the appeal is arguable, the merits are not compelling. [ 14 ] Given the unreasonable and unexplained delay this application is a close call. The grounds of appeal are not overwhelmingly meritorious, and the appellants have other remedies available to them.

The only factor in favour of the appellants is that the applicant does not allege any direct prejudice by the delay, and it has had the benefit of the injunction during the period of delay. The appellants have finally filed their factum. Conclusion

[ 15 ] In conclusion, there has been inordinate and unexplained delay in prosecuting this appeal, but after consideration of all the circumstances the application to strike the appeal is dismissed. However, this application was made necessary by the inordinate delay of the appellants, and the applicant is accordingly entitled to costs of this application in the sum of $1,000 plus GST, payable forthwith. Application heard on December 6, 2022 Reasons filed at Iqaluit, Nunavut this 8th day of December, 2022 Slatter J.A. Appearances: T. Kruger for the Respondent A. Crawford C. Mesher (student-at-law) for the Appellants