ARCTIC OBITER

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14 | <strong>ARCTIC</strong> <strong>OBITER</strong> NWT DECISION DIGEST by Maureen McGuire, Appellate Counsel, Justice Alberta SUPREME COURT CIVIL PRACTICE AND PROCEDURE – APPLICATION TO STRIKE REPLY – RULE 112 OF THE RULES OF THE SUPREME COURT Anderson v Bell Mobility Inc. 2011 NWTSC 40 (CanLII) | August 12, 2011 Presiding: Justice R.S. Veale For the Applicant/Defendant: R. Deane For the Respondent/Plaintiffs: S. Marr The respondents are plaintiffs in a class action against the applicant, Bell Mobility Inc. The statement of claim alleged that Bell had breached contracts with the class members, and that Bell was unjustly enriched as a result of charging for 911 Emergency access not provided. In its statement of defence, Bell responded that 911 call processing and routing services are provided through the national network. The plaintiffs then filed a reply addressing that part of the statement of defence, stating that the 911 fees “vastly exceed the cost of creating and maintaining Defendant’s 911 call processing and routing services and national mobile wireless 911 network.” Bell brought an application under Rule 112, to strike the reply on the basis that it raised a new claim. Application dismissed – Unjust enrichment was pleaded in the statement of claim. The reply does not change that cause of action. The four purposes of a reply are: (a) to admit some of the facts alleged in the defence, or meet them by asserting new and additional facts; (b) to plead an objection in point of law; (c) to plead an answer to the defence that it mistakes the causes of actions; and (d) if the defendant has pleaded a counterclaim, to deal with the allegations of fact in the counterclaim. The ultimate function of pleadings is to clarify the issues of fact and law so that each party knows the case it has to meet before examinations for discovery and trial. CASES CITED CHS v Alberta, 2006 ABQB 528 Mikisew Cree First Nation v Canada, 2004 ABCA 279 FAMILY LAW - CHILD CUSTODY - BEST INTERESTS OF CHILD Pilon v Pilon 2011 NWTSC 41 (CanLII) | August 16, 2011 Presiding: Justice V. Schuler For the Petitioner: D. Large For the Respondent: A. Duchene The mother applied to vary an order for joint and shared custody, seeking sole custody of the parties’ special needs child. Under the original order, the child spent alternate weeks with each parent. The father took the position joint custody was working, but if one parent was to have sole custody, it should be him. Application allowed in part - The fact that possible alienation of the mother was flagged as a concern in the expert evidence was sufficient to constitute a change in circumstance, permitting the court to review what is in the child’s best interests. There was evidence the transition between homes was difficult for the child. He would be better off with a regime with more consistency and stability. Therefore the court ordered the child spend alternate years with each parent, with the other parent having alternate weekends. However, joint custody was still appropriate. Because of the numerous disagreements between the parents regarding medical issues, ultimate authority to consent to medical treatment was given to the mother. CASES CITED R v Lavallee (1990), 55 CCC (3d) 97 (SCC) STATUTES CITED Children’s Law Act, S.N.W.T. 1997, c. 14 CIVIL PROCEDURE - INJUNCTIONS Inuvik v Shattler 2011 NWTSC 43 (CanLII) | September 6, 2011 Presiding: Justice L. Charbonneau For the Petitioner: P. Smith The Respondent: Self-represented The town of Inuvik sought an injunction to prevent the respondent from his actions at a quarry. The town owns the quarry property, but the respondent, the holder of a mineral claim, also claims an interest in the land. Different statutes and regulations support each position. There is therefore a serious issue for trial. The demonstrated potential for the erosion of the municipal government’s ability to govern was a harm that could not be remedied by damages. While the respondent may be inconvenienced by an order requiring him to cease activities until the litigation is over, it would be open to him to seek compensation for damages later. Although the applicant met the test for an injunction, it was not necessary to completely forbid the respondent from accessing the site of his claim. Therefore it was ordered only that he refrain from certain specified activities on the site. CASES CITED
SEPTEMBER/OCTOBER 2011 | 15 RJR – MacDonald Inc. v Canada (Attorney General), [1994] 1 SCR 311 Frontenac Ventures Corporation v Ardoch Algonquin First Nation, [2008] OJ No 792 (QL) (SCJ) ABORIGINAL LAW – ABORIGINAL CUSTOM ADOPTION RECOGNITION ACT – APPLICATION OF CUSTOMARY LAW Bruha v Bruha 2011 NWTSC 44 (CanLII) | September 12, 2011 Presiding: Justice V. Schuler The Applicant: No appearance The Respondent: Bruha, assisted by T. Caisse Child was living with adoptive parents under the Aboriginal Custom Adoption Recognition Act. The natural father had been paying child support to the natural mother. Adoptive father applied for and obtained an order that the child support be paid to him. Court subsequently set aside that order on the basis that no evidence had been presented about the customary law as it relates to a biological parent’s obligation to pay child support notwithstanding the custom adoption. Adoptive father’s application for child support adjourned sine die, for evidence on that issue. CASES CITED Kalaserk v Strickland (unreported), SCNWT docket no. CV08090, August 11, 1999 CRIMINAL LAW – SENTENCING – SEXUAL ASSAULT – SENTENCING PRINCIPLES – RESENTENCING AFTER A RETRIAL R v Gargan 2011 NWTSC 47 (CanLII) | September 16, 2011 Presiding: Justice L. Charbonneau For the Crown: G. Boyd For the Defendant: C. Wawzonek Offender convicted after a second trial for sexual assault. At his first trial, the offender had been convicted and sentenced to four years’ imprisonment. An appeal against conviction led to the retrial. The circumstances of the offence as shown in the evidence at the first trial were not different from that shown by the evidence in the second trial. The principle of parity applies to sentencing on a retrial, although any change in the offender’s personal circumstances since the time of the original sentencing may be taken into account. Any difference between the sentence on the original trial and the sentence on the retrial must be clearly justified and anchored on solid reasons. The paramount sentencing principles in cases of sexual assault on a sleeping victim are denunciation and deterrence. Consideration of the offender’s aboriginal heritage cannot result in a reduction of what would otherwise be an appropriate sentence for this crime. The four year sentence originally imposed was fit. Sentence reduced by 21 months for time served following the first trial and before the appeal was allowed, and by a further six months for pretrial custody pending the retrial. The rehabilitative efforts taken by the offender in the period between the first and second sentencing were important, but did not make a material difference for this sentencing as there were both positive and negative factors to consider. CASES CITED R v Mathieu, 2008 SCC 21 R v Fice, 2005 SCC 32 EMPLOYMENT LAW – EMPLOYMENT STANDARDS ACT – METHOD OF CALCULATING OVERTIME RATE Medic North v Harnish 2011 NWTSC 46 (CanLII) | September 20, 2011 Presiding: Justice L. Charbonneau For the Applicant: P. Smith For the Respondent: S. McCardy The Respondent was an employee of Medic North. He filed a complaint with the Employment Standards Office and the Office ordered Medic North to pay the employee outstanding wages, overtime pay, statutory holiday pay and termination pay in lieu of notice. Medic North appealed the overtime award to an adjudicator, and the adjudicator dismissed the appeal. Medic North appealed to the Supreme Court on the narrow issue of the rate used by the adjudicator in calculating the overtime amount. Appeal dismissed – The applicable standard of review is reasonableness. The Employment Standards Act provides that overtime pay is calculated on the basis of 1.5 times the employee’s regular rate of pay, or where the employee’s wages are not computed and paid solely on the basis of time, then 1.5 times the minimum wage. The adjudicator determined the employee’s regular rate of pay based on the pay stubs issued by the employer which made reference to an hourly rate. Although the employment contract did not refer to an hourly rate and the employee’s pay did not vary with the number of hours worked, the employee had been granted lieu days from time to time, in compensation for overtime worked. It was not unreasonable for the adjudicator to have relied on
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ARCTIC OBITER

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