ARCTIC OBITER

More documents

Recommendations

Info

16 | <strong>ARCTIC</strong> <strong>OBITER</strong> information (the pay stubs) generated by the employer to determine the employee’s regular rate of pay. STATUTES CITED Employment’s Standards Act, SNWT, 2007, c 13 Labour Standards Act, RSNWT 1988, c L-1 CASES CITED Dunsmuir v New Brunswick, 2008 SCC 9 Johnson v Yanke, 2009 NWTSC 17 Carter v Ger-Mac Contracting Ltd., 2000 NWTSC 58 Abil-Mona v Northwest Territories (Labour Standards Board), 2004 NWTSC 76 CRIMINAL LAW - SENTENCING – RESIST ARREST R v Tinqui 2011 NWTSC 48 (CanLII) | September 19, 2011 Presiding: Justice J. Vertes For the Crown: A. Paquin For the Defendant: L. Stevens, QC The 43 year old offender pleaded guilty to resisting arrest. He had a lengthy criminal record. The offender had been detained in custody on this and other charges for seven months. Offender sentenced to 60 days’ imprisonment, deemed to have been served by the time already spent in custody. CIVIL PRACTICE AND PROCEDURE – RULES 303 AND 304 OF THE RULES OF THE SUPREME COURT – SETTING DOWN POINTS OF LAW FOR DETERMINATION PRIOR TO TRIAL Inuvik v Shattler 2011 NWTSC 49 | September 26, 2011 Presiding: Justice J. Vertes For the Applicant: P. Smith For the Respondent: G. Phillips The test for whether a point of law should be set down for determination prior to trial is a restrictive one. The concern is to avoid unnecessary delays and costs by splitting off issues. The determination of the proposed points of law in this case would not resolve the litigation. A trial will still be necessary to determine the main point. While there may be merit in having some issues determined prior to the trail, that is something best left to the trial judge to decide. CASES CITED Reece et al v City of Edmonton, 2010 ABQB 538 Reece et al v City of Edmonton, 2011 ABCA 238 BHP Billiton Diamonds Inc. v Northwest Territories, 2007 NWTSC 10 Oil Sands Hotel (1975) Ltd. v Alberta, [2002] AJ No 1444 (QL) (QB) ABORIGINAL RIGHTS – DUTY TO CONSULT – FORECLOSURE PROCEEDINGS – ORDER CONFIRMING SALE NWT BDIC v 892622 NWT Ltd. 2011 NWTSC 50 (CanLII) | September 27, 2011 Presiding: Justice L. Charbonneau For the Plaintiff: D. McNiven The Defendants: C.J. Burke For C. Paulette, J. Emile: M. Unka BDIC applied for an order confirming the sale of two properties. The sales were the result of foreclosure after the defendants defaulted on a loan. An order nisi, made in 2009, provided for sale by tender. The decision granting the order nisi was never appealed. Tenders were received by BDIC for the properties and BDIC therefore asked the court to confirm the sales. The defendants objected on the basis of moral and social considerations. Two non-party individuals also objected. One on the basis of his trapping rights on the land. The other being the Chief of the Smith’s Landing First Nation, on the basis that because BDIC is a Crown corporation, it had an obligation to consult before taking any action with respect to the lands. Application allowed - It is not within the jurisdiction of the court to revisit the order nisi issued over two years ago. Moral and social considerations presented by the defendants do not give the court a basis for refusing BDIC’s application. The objections of the nonparties relate to the validity of the original lease and the consequences of it being transferred. This may raise complex aboriginal rights issues that have nothing to do with the foreclosure proceedings between BDIC and the defendants. The non-parties must initiate their own proceedings, and cannot simply bring a collateral attack on the lease as part of the foreclosure proceedings. If the lease was improperly granted from the start, the flaw will follow the lease, no matter who the leaseholder is. CASES CITED Northwest Territories Business Development and Investment Corporation v 892622 NWT Ltd., 2009 NWTSC 47 FAMILY LAW – CHILD AND SPOUSAL SUPPORT – APPLICATION TO VARY Westergreen v Westergreen 2011 NWTSC 52 (CanLII) | October 11, 2011 Presiding: Justice J.E. Richard The Petitioner: Self-Represented For the Respondent: M. Nightingale On the basis of a consent order, the petitioner was required to pay both child and spousal support for a specified time period. He now applies to suspend payments indefinitely. Since
SEPTEMBER/OCTOBER 2011 | 17 the time of the original order, he lost his job and suffered from an illness that prevented him from working for periods of time. Application dismissed – The court can only grant relief where there has been a material change of circumstances. The original consent order did not provide for annual disclosure of income, nor any consequent adjustment to the quantum of child support. It was the intention of the parties that the specified support payments would remain in place for the specified duration of the order, regardless of changes in income. The risk of the petitioner’s termination was foreseeable at the time of the consent order. The illness is no longer a factor as the petitioner is now fit and healthy and able to return to work. There therefore is no material change of circumstance demonstrated. CASES CITED MEO v SRM, 2003 ABQB 362 CRIMINAL LAW – SENTENCING – AGGRAVATED ASSAULT R v Hope 2011 NWTSC 51 (CanLII) | September 30, 2011 Presiding: Justice W. Darichuk For the Crown: D. Rideout, W. Miller For the Defendant: A. Parr The 35 year old aboriginal offender was found guilty after trial of aggravated assault by stomping on the victim’s head. The assault was not premeditated and was provoked by the victim. The victim suffered extensive and severe injuries. The offender had several good character references. However, he also had a criminal record for two prior assaults. Sentence of one year imprisonment plus one year probation imposed – A sanction that does not include imprisonment would not be appropriate in these circumstances. Violence is far too prevalent in the NWT. CASES CITED R v I(M), 2001 NWTSC 33 R v Taylor, 2003 NWTSC 14 R v Itsi, 2004 NWTSC 10 R v Mitchell, 2010 NWTSC 44 R v Dillon, 2004 NWTSC 39 R v Catholique, 2010 NWTSC 37 R v Desjarlais, 2005 NWTSC 35
Page 1 and 2: ARCTIC OBITER MAY/J SEPTEMBER/OCTOB
Page 3 and 4: SEPTEMBER/OCTOBER 2011 | 3 PRESIDEN
Page 5 and 6: SEPTEMBER/OCTOBER 2011 | 5 THE DIRE
Page 7 and 8: SEPTEMBER/OCTOBER 2011 | 7 Justice
Page 9 and 10: SEPTEMBER/OCTOBER 2011 | 9 Interven
Page 11 and 12: SEPTEMBER/OCTOBER 2011 | 11 can fin
Page 13 and 14: SEPTEMBER/OCTOBER 2011 | 13 NWT LEG
Page 15: SEPTEMBER/OCTOBER 2011 | 15 RJR - M
Page 19 and 20: SEPTEMBER/OCTOBER 2011 | 19 S.C.C.
Page 21 and 22: SEPTEMBER/OCTOBER 2011 | 21 the con
Page 23: SEPTEMBER/OCTOBER 2011 | 23 RESOURC

ARCTIC OBITER

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?