As a part of Lawson Lundell’s North of 60 blog, we will be providing summaries of every civil law decision from the Court of Appeal in the Yukon, Northwest Territories, and Nunavut in two installments per year. The following summaries are all of the decisions release from January 1, 2021 to June 30, 2021.
List of Cases
- Yukon Energy Blocked from Including Energy Reduction Incentive Costs as a Part of its Rate Base
Yukon Energy Corporation v. Yukon (Utilities Board), 2021 YKCA 1 - Intervenors to be Welcomed in Matters Involving Novel Charter Arguments
Dickson v. Vuntut Gwitchin First Nation, 2021 YKCA - Yukon Government Loses Appeal Against Bankrupt Mining Company for Remediation Costs
Yukon (Government of) v. Yukon Zinc, 2021 YKCA 2 - Leave to Appeal Does not Guarantee Change in Outcome
Mubili v Northwest Territories (Administrator, Maintenance Enforcement) 2021 NWTCA 5 - Implied Consent for Family Member Involved in Motor Vehicle Accident with Company Car
Elleze v Norn, 2021 NWTCA 4 - Commercial Arbitration Decisions in the Northwest Territories Subject to the Vavilov Framework
Northland Utilities (NWT) Limited v Hay River (Town of), 2021 NWTCA 1 - Reasonable Travel Expenses are a Proper Disbursement Where There is an Unavailability of Local Counsel
JD1HI v Budden, 2021 NUCA 5
Yukon Energy Blocked from Including Energy Reduction Incentive Costs as a Part of its Rate Base
Yukon Energy Corporation v. Yukon (Utilities Board), 2021 YKCA 1
Summary
Yukon Energy must apply to the Yukon Utilities Board to set the “rate base” that Yukon Energy charges to its customers. Yukon Energy sought to include energy reduction incentive costs as a part of its rate base, which was disallowed by the Yukon Utilities Board. Yukon Energy appealed. The appeal was dismissed.
Key takeaway
- The Yukon Utilities Board has the discretion to disallow costs under the Public Utilities Act if the costs are not required to provide the utility to the public.
Background
The appellant, Yukon Energy Corporation (“Yukon Energy”), is a government-owned public utility company that generates the bulk of Yukon’s electrical energy. Yukon Energy is regulated by the Respondent, the Yukon Utilities Board (the “Board”) pursuant to The Public Utilities Act, R.S.Y. 2002, c. 186 (the “Act”).
A function of the Board is to set the “rate base” that Yukon Energy charges to its customers, pursuant to section 32 of the Act, which states:
32(1) The board, by order, shall determine a rate base for the property of a public utility used or required to be used to provide service to the public, and may include a rate base for property under construction, or constructed or acquired, and intended to be used in the future to provide service to the public.
(2) The board, by order, shall set a fair return on the rate base.
(3) In determining a rate base the board shall give due consideration to the cost of the property when first devoted to public utility use, to prudent acquisition cost less depreciation, amortization, or depletion, and to necessary working capital.
The initial dispute before the board was the inclusion of demand-side management (“DSM”) program cost in the rate base. DSM programs are intended to reduce the overall demand for energy, with the goal of reducing the reliance on more expensive sources of energy.
The Canadian utilities industry developed a “cost-effectiveness test” of DSM programs which assess: (1) total resource cost; (2) program administration cost; (3) rate-impact; and (4) participant cost.
In 2008, the Board directed Yukon Energy to develop a policy paper on DSM initiatives. In 2013, the Board directed that Yukon Energy make a formal application to the Board prior to expanding any DSM initiatives.
In 2017, Yukon Energy made an application to the Board requesting approval for $3.319 million in DSM initiatives to be included in its rate base. At the time of the application, Yukon Energy had already spent approximately $2.5 million on unapproved DSM initiatives. The Board, with one exception, denied the request. The reasons noted Yukon Energy made DSM expenditures prior to approval form the Board, despite being explicitly directed not to do so. The Board concluded that the DSM program expenditures “were not prudently incurred” and were disallowed as an inclusion in the rate base. The Board also noted DSM programs were being offered by the Yukon government, and stated “the Board is of the view that it is better to leave DSM projects to government, rather than having ratepayers fund these projects.”
Decision
On Appeal, Yukon Energy argued the Board erred by failing to review the DSM costs in accordance with the principles established in Canada for utilities, and by considering the irrelevant factors of not complying with a previous direction to obtain pre-approval and the view that it was better to leave DSM projects for the Yukon government to handle.
The Court of Appeal concluded that under section 32(1) of the Act, the Board was entitled to exercise its discretion “to refuse to include DSM costs in the rate base if it concluded that the DSM programs were not required to be used to provide its service to the public.” The Court of Appeal found that the Board was exercising its discretion under section 32(1) when it stated that the DSM expenditures were “not prudently incurred.” Further, the Court of Appeal concluded that it was not an irrelevant consideration under section 32(1) for the Board to take into account there were DSM programs offered by the Yukon Government.
Link to the full case here: Yukon Energy Corporation v. Yukon (Utilities Board), 2021 YKCA 1
Intervenors to be Welcomed in Matters Involving Novel Charter Arguments
Dickson v. Vuntut Gwitchin First Nation, 2021 YKCA
Summary
Four Indigenous organizations brought applications for leave to intervene in an appeal. The underlying appeal is about whether the Charter applies to self-governing First Nations’ Governments, constitutions, and laws, and if so, to what extent. All four organizations were granted leave to intervene.
Key Takeaway
- Intervenors are to be welcomed in matters involving novel Charter arguments as they are likely to be of assistance to the court.
Background
The Appellant, Cindy Dickson (“Ms. Dickson”) is a member of the Vuntut Gwitchen First Nation, a self-governing Yukon First Nation. Ms. Dickson wanted to run for election as a Council member, but for compelling reasons was unable to comply with a requirement of the Vuntut Gwitchen First Nation Constitution that Council members live on Settlement Land. Ms. Dickson brought an application to the Supreme Court of Yukon for a declaration that the residency requirement of the Vuntut Gwitchen First Nation Constitution violated section 15 of the Charter, and was of no force or effect. The Supreme Court concluded that the Charter applied to the Vuntut Gwitchen First Nation Government and Constitution; the residency requirement was not an infringement of section 15 of the Charter; and even if there was an infringement under section 15 of the Charter, section 25 of the Charter shielded Vuntut Gwitchen First Nation’s right to adopt the residency requirement.
Four organizations sought leave to intervene: (1) Carcross/Tagish First Nation; (2) Teslin Tlingit Council; (3) Council of Yukon First Nations; and (4) Métis Nation of Ontario.
Decision
All four organization were granted leave to intervene. The Court of Appeal considered the two situations to grant leave to intervene. The First is whether a decision could have a direct impact on the intervenor, as fairness necessitates the opportunity to make submissions. The Court of Appeal found that the Carcross/Tagish First Nation, the Teslin Tlingit Council, and the Council of Yukon First Nations all have a direct interest in the appeal, as they are all Yukon First Nations organization and the decision on appeal with affect their legal rights and obligations.
The second situation is in matters that involve public interest. In matters of public interest, interveners are necessary to ensure that all important perspectives are considered. The Court of Appeal concluded that the appeal raised issues involving the public interest, and that all of the organizations meet this category. The analysis turned to whether each of the organization would bring a unique perspective at the appeal. The Court of Appeal found that each of the four organizations could offer a unique perspective that will assist the Court. The Court of Appeal concluded that the participation of the interveners would not expand the issues before the Court, or add unduly to the record.
Link to the full case here: Dickson v. Vuntut Gwitchin First Nation, 2021 YKCA
Yukon Government Loses Appeal Against Bankrupt Mining Company for Remediation Costs
Yukon (Government of) v. Yukon Zinc, 2021 YKCA 2
Summary
This matter arose from a receivership proceeding brought by the Yukon Government under the Bankruptcy and Insolvency Act of a mining company. The Court of Appeal considered four related appeals, including whether the Government had a claim provable in bankruptcy for future environmental remediation, whether mineral claims are considered “real property”, a receiver’s authority to appropriate third-party equipment, a receiver’s ability to charge their fees to third-party property, and the inclusion of factors for the evaluation of purchase bids received in Solicitation Plans.
Key Takeaways
- Governments do not have a claim provable in bankruptcy for unpaid Reclamation Security for anticipated future environmental remediation.
- “Real property” pursuant to 14.06(7) of the Bankruptcy and Insolvency Act does not include mineral claims.
- Explicit statutory authority is required for a bankruptcy receiver to interference with third party property rights.
- A bankruptcy receiver cannot extend their charge for fees and disbursements to the property of a third-party.
- Reasonable factors can be specified in Solicitation Plans for the evaluation of purchase bids.
Background
Yukon Zinc is a mining company that is incorporated in British Columbia, and is registered to carry on business in the Yukon Territory. Yukon Zinc’s primary asset is the ‘Wolverine Mine’ which operates in the Yukon. The Yukon Government, as represented by the Minister of the Department of Energy, Mines and Resources (the “Government”) required that Yukon Zinc furnish a security for possible adverse environmental effects (“Reclamation Security”) pursuant to section 139 of the Mining Act. The mine operated for less time than initially planned, as there was a downturn in metal prices, and the mine was put into care and maintenance.
Yukon Zinc filed with the Supreme Court of British Columbia, and reorganized its financial obligations under the Companies’ Creditors Arrangement Act, including payment for the Reclamation Security.
Yukon Zinc received loans totally $8.55 million dollars from Welichem Research General Partnership (“Welichem”) that was secured against all of Yukon Zinc’s assets. Yukon Zinc used $5.06 million dollars of these loans to exercise a purchase option for equipment that was under a lease with Maynbridge Capital Inc. (“Maynbridge”). Yukon Zinc sold this equipment to Welichem for the same price, and leased the equipment back under a Master Lease Agreement (the “Master Lease”).
The mine flooded, and there was a risk of untreated contaminated water being released into the environment. The Government used approximately $5.6 million dollars of the funds held in the reclamation security to address the contaminated water in the tailings storage facility at Wolverine Mine. The Government increased the amount of Reclamation Security required by approximately $25 million dollars to $35 million dollars.
The Government commenced a petition for the appointment of a receiver of Yukon Zinc’s property, pursuant to the Bankruptcy and Insolvency Act (“BIA”). The Yukon Supreme Court appointed Pricewaterhouse Cooper as the Receiver of all of Yukon Zinc’s assets, undertaking and property.
Pricewaterhouse Cooper sent a notice to Welichem of its intention to disclaim the Master Lease Agreement. In the notice, Pricewaterhouse Cooper unilaterally retained the right to use some of the equipment (the “Essential Items”) and fixed a price for monthly rent.
The Government, Welichmen, and Pricewaterhouse Cooper brought applications that were heard by a Chambers Judge at the same time.
The Government’s Application
The Government’s applied for a declaration including:
- the Government has a provable claim in the bankruptcy of [Yukon Zinc] in the amount of $35,548,650 for the costs of remedying the environmental damage affecting the [Yukon Zinc’s] real property; and
- the Government’s claim is secured in the manner described in 14.06(7)of the BIA.
The Chambers Judge found that the Government did not have a provable claim in the Bankruptcy of Yukon Zinc for the unpaid Reclamation Security, as these were anticipated future costs. The Court of Appeal agreed with the Chambers Judge, and concluded the Mining Act does not provide for the government to take legal action to enforce unpaid reclamation security.
The Chambers Judge concluded that section 14.06(7) of the BIA includes mineral claims in the term “real property.” The Court of Appeal disagreed, stating that mineral claims are an interest in real property, which is distinguishable from “real property.” Therefore, any claim the Government has under section 14.06(7) of the BIA does not attach to mineral claims.
Welichem’s Application
Welichem’s application was for an order that:
- the Disclaimer Notice was a nullity, and
- [Pricewaterhouse Cooper] affirmed the Master Lease and was required to pay the full lease payments to Welichem from the date of the [Pricewaterhouse Cooper’s] appointment.
The Chambers Judge concluded there was a disclaimer of the Master Lease (in effect, bringing an end to the contract), and that Pricewaterhouse Cooper was entitled to use the Essential Items at a price set by Pricewaterhouse Cooper. The Court of Appeal found there was no legal authority to permit Pricewaterhouse Cooper to make unilateral decisions for use and cost of Welichem’s property. For there to be interference with third party property rights, explicit statutory authority is required. The Court of Appeal declared Pricewaterhouse Cooper’s appropriation of the Essential Items in the Disclaimer Notice of no force or effect, and concluded Pricewaterhouse Cooper had affirmed the Master lease and was required to pay all amounts owing.
Pricewaterhouse Cooper’s application included:
- an order elevating the priority of the [Pricewaterhouse Cooper’s] Charges so that they would rank in priority to all security interests, trusts, liens, charges and encumbrances, but still subordinate to the charges set out in 14.06(7), 81.4(4)and 81.6(2) of the BIA;
- an order approving the Solicitation Plan; and
- directions from the court regarding whether the items covered by the Master Lease could be included in the property being offered for sale and, if so, whether those items were subject to the security of the Government pursuant to s. 14.06(7) of the BIA.
The Chambers Judge elevated the priority of Pricewaterhouse Cooper’s charges of their fees and disbursements (“charges”) over Welichem and the other secured creditors. The Chambers Judge also extended Pricewaterhouse Cooper’s charges over the Essential Items. The Chambers Judge Approved the Solicitation Plan as proposed by Pricewaterhouse Cooper.
The Court of Appeal concluded that there was no basis in law that would authorize a receiver to charge the property of a third-party. Therefore, Pricewaterhouse Cooper does not have a charge against the essential items owned by Welichem.
Welichem had appealed the approval of the Solicitation Plan on the basis that the Chambers Judge set out a number of factors for the evaluation of purchase bids received. The Court of Appeal found that the factors were relevant for the bidder to complete the purchase, and did not find that the Chambers Judge erred.
Link to the full case here: Yukon (Government of) v. Yukon Zinc, 2021 YKCA 2
Leave to Appeal Does not Guarantee Change in Outcome
Mubili v Northwest Territories (Administrator, Maintenance Enforcement) 2021 NWTCA 5
Summary
This appeal is about inter-jurisdictional child support arrears, variances, and enforcement orders. A self-represented father made various applications and appeals to attempt to rectify what he alleged were inaccurate orders from the Court. The Chambers Judge had explained the procedures the father would need to follow in order to argue for the remedies he sought. Despite this, the father did not follow the instructions given to him.
Ultimately, the Court of Appeal found the Chambers Judge had appropriately accommodated the father as a self-represented litigant, and the issues the father wanted to argue were not properly before the Court. As well, his assertion that the Chambers Judge ought to have varied his order having granted him leave to do so was inaccurate. The appeal was dismissed.
Key Takeaways
- Leave to appeal does not guarantee a change in outcome, it merely affords an applicant the opportunity to present their arguments before the Court.
- Remedies sought must comply with the appropriate procedural vehicle.
Background
Viktor Mubili, a father residing in the Northwest Territories filed an originating application to adjust arrears stemming from various child support orders in Ontario. The father was alleged to have over $100, 000 in arrears. He had been subject to federal garnishment, and the Maintenance Enforcement Program (“MEP”) threatened to suspend his passport and driver’s licence for non-payment.
On June 4, 2020 after negotiations with the mother, the father’s lawyer proposed an order which would confirm the arrears at $75,000 with a repayment plan of $1,400 a month including a $500 monthly payment towards the arrears. Not mentioned in the order but possibly discussed in negotiations was a discontinuance of the enforcement proceedings by the Ontario Family Responsibility Office (“FRO”). Delays in the discontinuance of enforcement proceedings led the father to submit further applications to the Court. At some point between these applications counsel for the father withdrew and the father continued his applications as a self-represented litigant.
The father brought an application alleging contempt by the mother because he alleged that she had told the FRO to continue with maintenance despite their agreement not to. The father also sought further adjustment to the arrears or alternatively to rescind the arrears and costs from his June 4, 2020 appearance. The Chambers Judge and counsel for the MEP were unclear what relief the father was seeking. The Chambers Judge thought the father was seeking to vary the June 4, 2020 order and granted the father leave to do so.
At the subsequent hearing on September 2, 2020 the Chambers Judge told the parties that he now understood that the relief the father sought was in the nature of an appeal of the June 4, 2020 order rather than a variation. The Chambers Judge explained the difference between the two processes and advised the father that he could not address the matters for appeal but that he would grant the father an extension on the period to file for an appeal should he choose to do so. The Chambers Judge continued with the application for contempt and dismissed the application. The June 4, 2020 order did not contain any direction for the FRO enforcement and counsel for the MEP confirmed that the FRO enforcement had been dismissed therefore there was no grounds for contempt.
The father subsequently filed an appeal of the September 2, 2020 decision and not the order from June 4, 2020. In addition to various claims of contempt against the mother dating back over a decade, the father alleged that the Court was bound to vary the June 4, 2020 order at the September 2, 2020 hearing because the Court had granted him leave to do so. The Court of Appeal noted that the allegations of contemptuous behaviour was not properly before the Court and that this appeal could only address the September 2, 2020 order. The Court of Appeal dismissed the appeal on the grounds that leave to vary an order merely permits parties to argue their case before the Court.
Link to the full case here: Mubili v Northwest Territories (Administrator, Maintenance Enforcement) 2021 NWTCA 5
Implied Consent for Family Member Involved in Motor Vehicle Accident with Company Car
Elleze v Norn, 2021 NWTCA 4
Summary
This appeal is about liability in motor vehicle accidents where a company vehicle is involved. The issue before the court was whether an employee, who was also the son of a sole proprietor had consent to operate the company vehicle at the time the vehicle was involved in an accident. The Court of Appeal upheld the trial decision finding that the son had implied consent to use the company vehicle as demonstrated through an ongoing pattern of allowing the son to use the vehicle.
Key Takeaways
- The Motor Vehicle Act presumes consent to operate a vehicle for family members residing with the vehicle owner and for employees of the owner. An absence of express consent is not sufficient to rebut the presumption.
- Consent can be express or implied. Implied consent is actual consent implied or inferred from the facts.
- Consent cannot be conditional. The only limit to consent is when care and control is subsequently turned over to a third party.
Background
The Defendant, Brent Norn was the son of the Appellant, Leslie Norn, owner and operator of Les Norn Contracting. The Defendant was driving the company vehicle while impaired and without a valid drivers licence when he hit and injured the Plaintiff, Wayne Maurice Elleze. At the time of the accident the Appellant was out of town.
All vehicles require automobile insurance in the Northwest Territories. The Insurance Act mandate that the vehicle owner’s insurance cover the first $200,000 of damage cause in accident. Any costs above $200,000 are assigned to the owner or driver by determining whether the driver had the consent of the owner to operate the vehicle. The Motor Vehicle Act provides further guidance for liability:
271(1) Subject to subsection (2), the owner of a vehicle is liable for damages for injury, loss or damage to persons or property caused by the negligence or improper conduct of the driver of the vehicle in the operation of the vehicle on a highway and the driver is liable to the same extent as the owner.
(2) The owner of a vehicle is not liable under subsection (1) if at the time the vehicle caused the damage, the vehicle was being operated by a person without the consent of the owner.
(3) For the purposes of subsection (2), the driver of a vehicle shall be presumed to be operating the vehicle with the consent of the owner of the vehicle where the driver is
-
- living with and is a member of the family of the owner, or
- an employee or agent of the owner,
unless the owner can prove that the driver was, at the time of the accident, operating the vehicle without his or her consent.
The evidence at trial was that the Defendant had a pattern of driving the vehicle and that his father, the Appellant was aware of this pattern of driving. Despite not having a licence, the Appellant had only expressed objections to his son about driving while impaired.
The law does not recognize conditional consent. When an owner gives a driver consent to operate their vehicle, the owner remains liable for the actions of the driver whether or not the driver exceeds the mutually agreed upon purpose. The only limit is the third party exemption whereby the driver with consent turns the vehicle over to another driver.
The Appellant had tried to rely on the third party exemption at trial. He argued that because he had given the keys to his brother and not his son before leaving town, the third party exemption applied and therefore his son did not have his consent at the time of the accident. The trial judge rejected this argument on the grounds that the son had ongoing implied consent as inferred from the pattern of using the vehicle regularly. Therefore, the owner had failed to rebut the presumption of consent and a finding of consent was found both under the statutory presumption of consent for employees as well as on the facts.
The Court of Appeal discussed implied consent, which it described as a misnomer. Implied consent is actual consent which has been implied or inferred from the evidence. As such there is no specific test for determining implied consent, there are analyses which could prove consent such as whether the owner would have consented if asked, or whether there was an expectation and willingness of the owner, but none of these are required to make a finding of consent.
The Court of Appeal found that where the primary legal issue concerns whether or not there was consent which is largely a finding of fact. The standard of review for “matters of mixed law and fact” applies. The standard of review for matters of mixed law and fact is a deferential one. Therefore, having found no errors in the trial judge’s reasons the Court dismissed the appeal.
Link to the full case here: Elleze v Norn, 2021 NWTCA 4
Commercial Arbitration Decisions in the Northwest Territories Subject to the Vavilov Framework
Northland Utilities (NWT) Limited v Hay River (Town of), 2021 NWTCA 1
Summary
In Northland Utilities (NWT) Limited v Hay River (Town of) the Court of Appeal considered the appropriate standard of review for commercial arbitration decisions post Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (“Vavilov”). The Arbitrator’s decision had been appealed to the Supreme Court of the Northwest Territories shortly before the Supreme Court of Canada had released Vavilov. The Vavilov decision subsequently adjusted the framework for the standard of review. The Supreme Court of the Northwest Territories had dismissed the appeal, but the Appellants appealed to the Court of Appeal on the grounds that the Vavilov framework applied and that applying Vavilov the Arbitrator’s decision was incorrect. The Court of Appeal dismissed the appeal.
The Court of Appeal provided clarity in the territory for how the post-Vavilov framework would interact with areas not law not expressly addressed within the Vavilov decision, such as commercial arbitration. The Court of Appeal found that Vavlilov would apply to commercial arbitration. However, as the Arbitration Act did not limit the rights of appeal to issues of law, the palpable and overriding error standard would continue to apply to questions of mixed fact and law resulting from commercial arbitration decisions.
Key Takeaway
- Commercial arbitration decisions in the Northwest Territories is subject to the Vavilov Issues of law can be reviewed on a standard of correctness. Issues of mixed fact and law are to be reviewed on the standard of palpable and overriding error. However, exercises of discretion will continue to be evaluated on a standard of reasonableness.
Background
The municipality of Hay River had entered into a Franchise Agreement with Northland Utilities Limited in order to build and operate an electrical system in Hay River. Franchise Agreements have become a common practice for municipalities without sufficient funds to build and operate the various utility systems needed in the community. The Franchise Agreement allows the utility company to build and operate the system for a defined period of years while collecting payments from users. The Agreement also grants the municipality the right to purchase the system at a certain future date when the municipality may be in a better position to fund such a large purchase.
In this case, Northland Utilities had built and operated the system when Hay River gave notice of its intention to exercise its right to purchase the system. Northland Utilities consented, but the two parties could not agree on the terms of the sale. The matter was referred to Arbitration. The dispute included which assets were to be purchased and how those assets were to be valued. The Arbitrator’s decision discussed the scope of the Arbitrator’s role and authority in determining an outcome. The Arbitrator expressly found that the nature of arbitration was not simply to choose between two competing offers, but that an Arbitrator has the authority to impose a “fair and just” remedy. The Arbitrator addressed both positions of the parties and ultimately accepted that the valuation method proposed by Hay River was most fair to both parties.
Northland Utilities appealed the decision of the Arbitrator to the Supreme Court of the Northwest Territories. The Chambers Judge found that the standard of review in commercial arbitration decisions was one of reasonableness, and concluded that the Arbitrator’s decision was indeed reasonable.
Northland Utilities appealed this decision to the Court of Appeal, on the grounds that the adjusted framework for review as imposed by the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v Vavilov 2019 SCC 65, 441 DLR (4th) 1 (“Vavilov”) applied, and under that framework the appropriate standard of review of the Arbitrator’s decision is correctness.
The Court of Appeal found that Vavilov is silent on the standard of review for commercial arbitration, which does not indicate that Vavilov applies or does not apply to commercial arbitration decisions. The Court of Appeal noted that the Supreme Court of Canada decision in Sattva Capital Corp v Creston Moly Corp, 2014 SCC 53 (“Sattva”) provides that reasonableness would almost always apply to commercial arbitrations conducted under arbitration legislation, except in relatively rare circumstances involving “constitutional questions or a question of law of central importance to the legal system as a whole and outside the adjudicator’s expertise.” In the same decision, the Supreme Court of Canada stated that contractual interpretation involves issues of mixed fact and law.
Since Vavilov declined to expressly overturn the rules for standard of review in commercial arbitration, the Court of Appeal found that it must apply an analysis of “presumption of consistent expression.” The Court of Appeal concluded that Vavilov applies to the review commercial arbitration decisions as a result of a right of appeal given by statute. However, because the Arbitration Act does not limit rights of appeal to issues of law, the palpable and overriding error standard would continue to apply to questions of mixed fact and law resulting from commercial arbitration decisions.
Having clarified the framework for evaluation of commercial arbitration decisions which synthesizes the decisions of Vavilov and Sattva, the Court of Appeal turned its mind to the issue of the appropriate valuation method. The Court of Appeal was split as to whether the selection of a test with which to determine the appropriate valuation method constituted a separate reviewable legal analysis from the determination of the appropriate valuation method itself. The majority concluded no extricable question of law arose and therefore the matter is question of mixed fact and law as well as the exercise of discretion, which are reviewable on the standard of palpable and overriding error and reasonableness respectively. However, both the majority and concurring decisions held that the appeal ought to be dismissed.
Link to the full case here: Northland Utilities (NWT) Limited v Hay River (Town of), 2021 NWTCA 1
Irrelevant that a Third Party Claim was Defended by an Insurer When Assessing Costs Consequences
JD1HI v Budden, 2021 NUCA 5
Summary
The parties applied to the Court of Appeal for directions on costs consequences. The underlying appeal was whether a third party notice should be struck, and the Court of Appeal reversed the case management judge’s decision and struck the third party notice. The Court of Appeal found that the successful third party is entitled to: the costs of the appeal, the costs of the appearances before the case management judge, reasonable travel expenses, and the fees for an amicus curiae.
Key Takeaways
- It is irrelevant that a third party claim was defended by an insurer when assessing costs.
- Reasonable travel expenses are a proper disbursement where there is an unavailability of local counsel.
- Where the conduct of a party results in the appointment of an amicus curiae, the party may be liable to pay their fee as a reasonable disbursement.
Background
A Third Party Notice was brought by the defendants in an action, naming the plaintiff’s lawyer as a third party. The third party brought an application to strike the Third Party Notice. The case management judge dismissed the application to strike the Third Party Notice, which was appealed. As a result of the Third Party Notice, the plaintiff’s lawyer could not represent the plaintiff’s interest, and an amicus curiae was appointed to represent the interest of the plaintiffs on appeal. The Court of Appeal reversed the case management judge’s decision and struck the Third Party Notice.
Decision
The Court of Appeal found as the third party appellant was the successful party, it was entitled to costs of the appeal and the relevant appearances before the case management judge in accordance with the Rules of the Nunavut Court of Appeal Respecting Civil Appeals.
The Court of Appeal included a portion of the amicus curiae’s fees as a reasonable disbursement, finding the need for an amicus curiae arose primarily because of the third party notice.
The Court of Appeal included reasonable travel expenses as a disbursement applying the “unavailability of local counsel” test, finding that it was reasonable and appropriate to retain out-of-town counsel due to the issues that arose in the proceedings and the limited size of the civil bar in Nunavut.
Link to the full case here: JD1HI v Budden, 2021 NUCA 5
This was the first of two summaries of every civil law decision from the Court of Appeal in the Yukon, Northwest Territories, and Nunavut. Part 2, covering July - December 2021, will be posted in January 2022.
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Toby advises private and public sector clients on litigation and regulatory matters. He provides advice on environmental, energy, mining, land, construction, public utility, administrative law, and Indigenous law issues. Toby ...
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