Nunavunmi Maligaliuqtiit

NUNAVUT COURT OF JUSTICE

Cour de justice du Nunavut

Citation: Jane Doe v. Hamlet of Pangnirtung and

Government of Nunavut, 2020 NUCJ 48
Date: 20210304
Docket: 10-20-097
Registry: Iqaluit

Plaintiff/Respondent: Jane Doe (G.E.B. #51)

-and-

First Defendant: The Hamlet of Pangnirtung

-and-

Second Defendant/Applicant: Government of Nunavut

________________________________________________________________________

Before: Mr. Justice Lyons

Counsel (Plaintiff): G. Budden

Counsel (First Defendant): M. Theriault
Counsel (Second Defendant): W. Lu

Location Heard: Iqaluit, Nunavut

Date Heard: November 9, 2020
Matters: Decision on motion to strike pursuant to R. 129 of the
Rules of the Supreme Court of the Northwest Territories
(Nu), R-010-96

REASONS FOR JUDGMENT

(NOTE: This document may have been edited for publication)

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I. INTRODUCTION

[1] This is a motion to strike the plaintiff’s statement of claim pursuant to

Rule 129(1) of the Rules of Court. The plaintiff alleges that she
experienced sexual harassment while employed by the Hamlet of
Pangnirtung (the “Hamlet”). There are two defendants in this matter:
the Hamlet and the Government of Nunavut (the “GN”). The GN
argues that the statement of claim discloses no cause of action
against it, is frivolous, is an abuse of process, and should be struck.

II. LAW

[2] Rule 129(1) sets out the grounds on which the Court may strike a
pleading.

129 (1) The Court may, at any stage of a proceeding, order that
(a) any pleading in the action be struck out or amended, on the
ground that
(i) it discloses no cause of action or defence, as the case
may be,
(ii) it is scandalous, frivolous or vexatious,
…
(iv) it is otherwise an abuse of the process of the Court;
and
(b) the action be stayed or dismissed or judgment be entered
accordingly.

[3] The parties agree that the test governing motions to strike is the “plain
and obvious” test as established by the Supreme Court of Canada in
Hunt v Carey Canada Inc., [1990] 2 SCR 959, 117 NR 321:

… assuming that the facts as stated in the statement of claim can be

proved, is it “plain and obvious” that the plaintiff’s statement of claim
discloses no reasonable cause of action? (at para 36)

[4] The Supreme Court further clarified in Hunt v Carey and the more
recent Odhavji Estate v Woodhouse, 2003 SCC 69 that the statement
of claim must contain a “radical defect” making the plaintiff “certain to
fail” as against the relevant defendant. The “plain and obvious” test
requires me, as the judge on this motion, to regard the facts pleaded
in the statement of claim as true. The question I must decide is
whether it is plain and obvious that the plaintiff cannot succeed
against the Government of Nunavut even if all the facts as alleged are
proven to be true.
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III. FACTS

[5] As stated above, for the purposes of the “plain and obvious” test, I
must regard the facts pled as true. If the matter proceeds to trial, the
plaintiff is still required to present evidence establishing the facts as
pled on a balance of probabilities.

[6] The facts pled are that the plaintiff, while employed by the Hamlet
from May to August 2018, was subjected to sexual harassment, non-
consensual touching, and other misconduct of a sexual nature. The
alleged perpetrator was the plaintiff’s direct supervisor. The
supervisor is alleged to have made highly sexualized and other
inappropriate comments to the plaintiff; to have aggressively pursued
an intimate relationship with the plaintiff; and to have terminated the
plaintiff’s employment when the plaintiff refused to engage in a sexual
relationship with her direct supervisor.

[7] The plaintiff states that she was hired by the Hamlet upon the
recommendation of the GN. In addition, both the Hamlet and the GN
were notified about the harassment while it was ongoing. No action
was taken against the perpetrator by either the Hamlet or the GN.

[8] The plaintiff had relocated to Pangnirtung to fulfill a one-year

employment contract, residing in Pangnirtung until the premature
termination. When the termination occurred, the plaintiff’s housing
was revoked. The plaintiff and their child were forced to relocate at
their own expense. The experience allegedly caused the plaintiff
continuous psychological distress, loss of reputation, feelings of
humiliation and betrayal, additional financial burdens, and
exacerbation of pre-existing illnesses and problems.

[9] The plaintiff filed a Statement of Claim against the first defendant (the
Hamlet) and the second defendant (the GN) on May 6, 2020.
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IV. SUBMISSIONS

A. The Government of Nunavut

[10] Counsel for the GN argues that the plaintiff’s claim should be struck
as against the GN because it discloses no cause of action, it is
frivolous and vexatious, and it is otherwise an abuse of process. The
primary argument presented by counsel for the GN is that the
relationship between the GN and the Hamlet is not such that it is
possible for liability to attach to the GN. According to counsel for the
GN, “it is plain and obvious that the Hamlet manages and controls its
own affairs” (Reply of the Applicant/Second Defendant, filed October
9, 2020 at para 49). Accordingly, “[t]here is no prospect of success in
fact or in law to the Plaintiff’s allegation that the GN manages and
controls the Hamlet” (at para 50).

B. The plaintiff

[11] The plaintiff disputes the GN’s characterization of the relationship

between the GN and the Hamlet. The plaintiff argues that the GN
does indeed “manage and control” the Hamlet and that it has “explicit
operational authority and oversight” over the Hamlet
(Respondent/Plaintiff’s Brief, filed September 29, 2020 at para 10).

V. ANALYSIS

[12] The GN argues that it is plain and obvious that the GN is so clearly
insulated from liability for actions of the Hamlet that I ought to dismiss
this action against the GN because it is certain to fail. With respect, I
cannot adopt that position.

A. The pleading discloses a cause of action

[13] The facts as pled give rise to an enforceable claim of sexual

harassment against an employee of the Hamlet. Whether the claim is
enforceable as against the GN is an issue to be argued at trial, as it is
not plain and obvious that the Hamlet is entirely independent of the
GN. Indeed, as one example of the relationship between the Hamlet
and the GN, counsel noted that pursuant to s.191.1 of the Hamlets
Act, the GN may supervise the affairs of the Hamlet if the Hamlet is in
financial or operational difficulty; has failed to perform a duty required
of it by the Hamlets Act, or any other Act; or if it is in the best interests
of the Hamlet that its affairs be supervised.
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[14] The GN argues that the proper interpretation of the Hamlets Act does
not allow the GN to step in to supervise a Hamlet’s discrete human
resource issue, and that the plaintiff has no prospect of success as a
result. It is not the role of the court, however, to evaluate the plaintiff’s
prospect of success or determine the merit of possible legal
arguments at the interlocutory stage. Instead, the Court is to
determine whether the pleading raises an arguable issue. Given that
the GN has the power to manage the affairs of the Hamlet in certain
circumstances, and is alleged to have been aware the plaintiff was
being harassed, I find the issue of the GN’s liability for the Hamlet’s
actions to be arguable. Ultimately, whether the GN owed a duty of
care to the plaintiff and had the ability and/or duty to intervene in the
circumstances of the case are issues for the trial judge to determine.

B. The pleading is not frivolous, vexatious, or an abuse of process

[15] Counsel for the GN relies on Van Sluytman v Canada, 2017 ONSC
481 as an example of indicia of frivolous, vexatious, or otherwise
abusive litigation. In that case, the plaintiff commenced fourteen
actions arising from “general discontent with his interactions with the
police, social work, mental health, and medical personnel over a
number of years” (at para 1). His statement of claim contained no
facts, engaged in “rambling unclarified discourse” making identifying
the issues in the case difficult or impossible, and sought grandiose
damages in the millions of dollars (at paras 2, 6, 12). In addition, the
limitation period for his claims had passed (at para 14).

[16] Counsel for the GN points out that both Van Sluytman and the plaintiff
argue that the government’s liability stems from its responsibility to
train public servants adequately. A general similarity between one of
the plaintiff’s arguments in Van Sluytman and one aspect of the
plaintiff’s argument in the case before me is not enough to bring this
matter under the umbrella of frivolous, vexatious, or abusive
proceedings.

[17] The plaintiff’s claim contains a concise statement of facts identifying

specific incidents of sexual harassment, indicates the parties alleged
to be responsible, and the reasons for their responsibility.
Accordingly, the claim is not frivolous, vexatious, or an abuse of
process.
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VI. CONCLUSION

[18] The motion to strike this claim as against the second defendant, the
Government of Nunavut, is dismissed.

[19] If Counsel are unable to come to an agreement regarding the costs of

this motion, written submissions as to costs may be filed to a
maximum of 4 pages within 10 days of the release of this decision.

Dated at the City of Iqaluit this 4th day of March, 2021

___________________
Justice C. Lyons
Nunavut Court of Justice