Supreme Court

Guinan, et al, v. Northwestel, et al, 2000 NWTSC 51
Date:
Docket:

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

BETWEEN:

PAT GUINAN, DERRAN GUINAN
and NETWORK NORTH COMMUNICATIONS LTD.

Plaintiffs

- and -



NORTHWESTEL INC. and MIKE STILWELL

Defendants




Application for civil jury trial.  Dismissed with costs.

Heard at Yellowknife, NT:   June 8, 2000

Reasons filed: July 21, 2000




REASONS FOR JUDGMENT OF THE HONOURABLE JUSTICE J.E. RICHARD

Counsel for the Plaintiffs:   Peter Gibson
Counsel for the Defendant Northwestel: Charles McGee
Counsel for the Defendant Stilwell:  Robert Kasting



IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES


BETWEEN:


PAT GUINAN, DERRAN GUINAN
and NETWORK NORTH COMMUNICATIONS LTD.


Plaintiffs

- and -




NORTHWESTEL INC. and MIKE STILWELL

Defendants



REASONS FOR JUDGMENT

[1] On this application the plaintiffs seek an order directing that the action be tried before a jury.

[2] The plaintiffs rely on s.2 of the Jury Act R.S.N.W.T. 1988, ch.J-2:

2.(1) Where, in any action

(a) of libel, slander, false imprisonment, malicious prosecution or breach of promise of marriage,

(b) founded on a tort or contract in which the amount claimed exceeds $1,000, or

(c) for the recovery of real property, either party to the action applies to the Court, not less than two weeks before the time fixed for the trial of the action before a jury, the action shall, subject to subsection (2) and section 3, be tried before a jury, but in no other case shall an action be tried before a jury.

  (2) Where, in any action of a class specified in subsection (1), application is made for the trial of that action before a jury and it appears to a judge, either before or after the commencement of the trial, that the trial will involve any prolonged examination of documents or accounts or any scientific investigation that, in the opinion of the judge, cannot conveniently be made by a jury, the judge may direct that the action be tried without a jury or that the jury be dismissed, in which case the action shall be tried or the trial continued, as the case may be, without a jury.

[3] In their Amended Statement of Claim, the plaintiffs plead, inter alia, breach of contract.  On this application the plaintiffs rely on the  contract  aspect of their action as granting a prima facie statutory right to a jury trial under s.2(1) of the Jury Act.

[4] However, contract is not the sole cause of action pleaded in the Amended Statement of Claim.  The plaintiffs, in paragraph 20, also plead breach of fiduciary duty.  Breach of fiduciary duty is an equitable cause of action.  Historically, equitable remedies were developed by judges of the English Court of Chancery sitting without juries.

[5] There is no statutory right to have an equitable claim tried by a jury.

[6] As I read the Amended Statement of Claim, the plaintiffs  equitable claim is an important and not insignificant aspect of this lawsuit.

[7] It is inappropriate for an equitable remedy to be considered by a jury due to the discretionary nature of the remedy.  See Henderson v. Henderson (1985), 20 D.L.R. (4th) 33 (Sask.C.A.).

[8] Alberta (Provincial Treasurer) v. Gordey Construction Ltd. (1991), 83 Alta.L.R.(2d) 48 (Alta.C.A.) is persuasive authority for the proposition that a civil jury trial must be denied where there is an equitable claim being advanced as well as other claims.

[9] For these reasons, the plaintiffs  application is dismissed, with costs to the defendant Northwestel.





         J.E. Richard,
              J.S.C.
Dated at Yellowknife, NT, this
21st day of July 2000

Counsel for the Plaintiffs:   Peter Gibson
Counsel for the Defendant Northwestel: Charles McGee
Counsel for the Defendant Stilwell: : Robert Kasting























CV 06512


IN THE SUPREME COURT OF THE
NORTHWEST TERRITORIES



BETWEEN:

PAT GUINAN, DERRAN GUINAN
and NETWORK NORTH COMMUNICATIONS LTD.

Plaintiffs

- and -



NORTHWESTEL INC. and MIKE STILWELL

Defendants



REASONS FOR JUDGMENT OF
THE HONOURABLE JUSTICE J.E. RICHARD