ARCTIC OBITER
March/April 2012 - Law Society of the Northwest Territories
March/April 2012 - Law Society of the Northwest Territories
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16 | <strong>ARCTIC</strong> <strong>OBITER</strong><br />
NWT DECISION DIGEST<br />
by Maureen McGuire, Appellate Counsel, Alberta Justice<br />
COURT OF APPEAL<br />
CIVIL PROCEDURE - APPLICATION<br />
TO STRIKE REPLY – AMENDMENT<br />
OF STATEMENT OF CLAIM<br />
Bell Mobility v Anderson<br />
2012 NWTCA 4 (CanLII) | February 14, 2012<br />
Presiding: Justice J.E. Côté<br />
Justice C. Hunt<br />
Justice F.F. Slatter<br />
For the Appellants: R.J.C. Deane, B.W. Dixon<br />
For the Respondents: K.M. Landy, S.S. Marr<br />
The respondents are plaintiffs in a class<br />
action against the appellant, Bell<br />
Mobility.<br />
Their statement of claim<br />
alleged that Bell was unjustly enriched<br />
as a result of charging for 911 services<br />
not provided.<br />
In its statement of<br />
defence, Bell responded that it had<br />
incurred expenses setting up the<br />
physical potential for 911 services. The<br />
plaintiffs then filed a reply, stating that<br />
the 911 fees vastly exceeded those<br />
expenses. Bell brought an application<br />
to strike the reply on the basis that it<br />
was raising a new claim.<br />
The<br />
application was dismissed (2011<br />
NWTSC 40) on the basis that unjust<br />
enrichment remained the cause of<br />
action. Bell appealed.<br />
Appeal allowed – While both the<br />
statement of claim and reply speak of<br />
unjust enrichment, the two claims are<br />
different and intended as alternatives.<br />
While amendment may be a remedy to<br />
striking out, amendement was not<br />
permitted here as the new claim in the<br />
reply disclosed no reasonable cause of<br />
action.<br />
CRIMINAL LAW – EVIDENCE –<br />
CONFESSIONS – CHARTER OF<br />
RIGHTS AND FREEDOMS - RIGHT TO<br />
COUNSEL – EXCLUSION OF<br />
EVIDENCE<br />
R v KWJ<br />
2012 NWTCA 3 (CanLII) | February 15, 2012<br />
Presiding: Justice P.W.L. Martin<br />
Justice P.A. Rowbotham<br />
Justice B.K. O’Ferrall<br />
For the Appellant: M. Lecorre,<br />
For the Respondent: B. Berish, QC<br />
The respondent was arrested and read<br />
his rights before being transported to<br />
the nearest RCMP station.<br />
At the<br />
station he was provided a list of<br />
lawyers, but said he didn’t know any of<br />
them so the list was of no use to him.<br />
He asked to call his wife and was told<br />
by police he could call her later.<br />
He<br />
then briefly spoke with a Legal Aid<br />
lawyer by phone.<br />
He was then was<br />
interviewed and gave an inculpatory<br />
statement.<br />
The trial judge found a<br />
violation of the right to counsel and<br />
excluded the statement, leading to an<br />
acquittal. The Crown appealed.<br />
Appeal allowed – The trial judge’s<br />
finding that the police ought to have<br />
known the accused wanted to call his<br />
wife in order to obtain her assistance to<br />
contact counsel was unreasonable.<br />
Unless a detainee explains why he<br />
wishes to contact a third party, neither<br />
the police, nor the court, should assume<br />
the underlying purpose is to facilitate<br />
access to counsel. Even if there was a<br />
THE DECISIONS IN THIS DIGEST ARE LINKED TO THE ARCHIVED DECISIONS ON<br />
CANLII. ALTERNATIVELY, THESE DECISIONS ARE FREELY AVAILABLE AT THE GNWT<br />
DEPARTMENT OF JUSTICE WEBSITE: http://www.justice.gov.nt.ca/<br />
Charter violation, the trial judge erred in<br />
excluding the statement on the basis of<br />
a “Collins-Stillman approach”. The trial<br />
judge’s application of the incorrect legal<br />
test for the exclusion of evidence<br />
warranted a new trial.<br />
CIVIL PROCEDURE – DISMISSAL FOR<br />
WANT OF PROSECUTION –<br />
CONSIDERATION OF SETTLEMENT<br />
DISCUSSIONS<br />
Kell v Senych (Estate)<br />
2012 NWTCA 5 (CanLII) | March 8, 2012<br />
Presiding: Justice Fruman<br />
Justice R.S. Veale<br />
Justice K.G. Ritter<br />
For the Appellant: self-represented<br />
For the Respondent (Senych): E. Keenan Bengts<br />
For the Respondent (NWTHC): S. Toner<br />
The appellant commenced an action in<br />
March 1996, claiming she had been<br />
unlawfully ejected from her residence in<br />
1995. She filed an amended statement<br />
of claim in July 1998.<br />
Statements of<br />
defence were filed by the respondents<br />
in 1998.<br />
Correspondence regarding<br />
settlement was exchanged between<br />
January and June 1999. The appellant<br />
rejected an offer in May 2002. In June<br />
2003, the respondents applied to<br />
dismiss the claim for want of<br />
prosecution. The application was<br />
granted.<br />
Appeal dismissed – The chambers judge<br />
applied the three part test: 1) has there<br />
been any inordinate delay?<br />
2) is the<br />
delay inexcusable? 3) is the defendant<br />
likely to be seriously prejudiced by the<br />
delay? There was no evidence to explain<br />
why it took so long to realize that<br />
further settlement discussions were<br />
fruitless, or to suggest that anyone had<br />
an expectation at any time that