Supreme Court

Inuvik v. Shattler, 2011 NWTSC 49
Date: 2011 09 26
Docket:   CV 2011000115

	IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

BETWEEN:

	MUNICIPAL CORPORATION OF THE TOWN OF INUVIK

	Applicant

	- and -



	TODD SHATTLER

	Respondent


	MEMORANDUM OF JUDGMENT


[1]	This is an application by the Respondent to set down certain points of law for determination prior to trial pursuant to Rules 303 and 304 of the Supreme Court Rules.

[2]	These proceedings are a dispute between the Town of Inuvik and the Respondent over the Respondent's mining activities in a quarry located on land owned by the Town.  The Respondent apparently has a mineral claim on the lands in question.  The essence of the dispute is the extent to which the Respondent can use the land in exercising his subsurface rights in face of the Town's surface rights.  On September 6, 2011, this court issued an interim injunction prohibiting the Respondent from carrying on certain activities on the lands.  The parties were also directed to proceed to a trial on the merits of the action.

[3]	The Town commenced these proceedings by way of an Originating Notice.  In it the Town seeks a number of items of declaratory relief and other relief.  The Town seeks an order:

(i)	declaring that the Respondent has breached sections 3.0 and 4.0 of the Town of Inuvik By-Law 94-1317;

(ii)	declaring that the Respondent is guilty of an offence pursuant to subsection 151(2) of the Cities, Towns and Villages Act, S.N.W.T. 2003, c. 22, Sch. B (the “CTVA”);

(iii)	declaring that the Respondent's mining activities in the Navy Road Quarry constitute an imminent and serious danger to public health or safety pursuant to subsection 148(1) of the CTVA;

(iv)	granting a permanent injunction pursuant to subsection 143(1) of the CTVA restraining the Respondent or his representatives from entering onto lands owned by the Applicant, removing sand, gravel or other material, conducting mining activities, and constructing any barriers preventing access to the Lands, pending the resolution of this matter;

(v)	granting a declaration as to the respective surface and subsurface rights of the Applicant and the Respondent with respect to certain lands owned by the Applicant;

(vi)	joining this action with action number T3CV201100013 now filed in the Territorial Court of the Northwest Territories and having the Claim, Defences and Counterclaim heard in this Honourable Court.


[4]	The points of law the Respondent wants to set down for hearing before trial are as follows:

(a)	Whether or not this matter is properly before this Honourable Court, it having been brought by way of Originating Notice of Motion;

(b)	Whether this Honourable Court has jurisdiction to hear an application for Declarations such as the ones being sought by the Applicant in this matter;

(c)	Whether the application by the Applicant for Declaratory relief is premature or otherwise inappropriate under the circumstances;


(d)	Whether this Honourable Court has jurisdiction to have action number T3CV201100013 joined with this action as sought by the Applicant in paragraph (h) of its Originating Notice of Motion;

(e)	Whether anyone other than the Attorney General of Canada has the necessary standing to apply for permanent injunctive relief under the circumstances in this case;

(f)	Whether as a result of this application and any hearing to be held pursuant to Rules 303(1) and 304(1), the Applicant's Originating Notice of Motion should be struck in its entirety or amended.

[5]	The first two points are phrased in jurisdictional terms.  This is not accurate.  The court has the jurisdiction to issue declaratory relief.  The question is whether it should do so.  It is more accurate to describe these points as raising the issue of abuse of process.  As such, the motion could be reformulated as an application to strike the Originating Notice, or parts of it, as an abuse of process.

[6]	The respondent relies on the decision of the Alberta Court of Queen's Bench in Reece et al v. City of Edmonton, 2010 ABQB 538.  In that case the applicants, individuals and groups concerned about animal welfare, brought an application, by Originating Notice, for a declaration that the City was in violation of certain animal protection statutes with respect to the treatment of an elephant housed in the City Zoo.  The respondent City brought an application to have the Originating Notice struck out on the basis that the applicants had no standing, that the proceedings were an abuse of process, or alternatively, that the applicants chose the wrong procedure.

[7]	The Queen's Bench judge granted the application and struck the originating notice.  He held that the proceedings were an abuse of process because a private litigant cannot seek a declaration that the respondent was in breach of a penal provision in a statute.  Alternatively, he concluded that the application should have been brought by way of statement of claim, not originating notice.  Finally, while not necessary to his ruling, the Queen's Bench judge concluded that the applicants had no private interest standing.  This decision was upheld on appeal (by a 2 to 1 majority) in the Alberta Court of Appeal: Reece et al v. City of Edmonton, 2011 ABCA 238.  The majority held that the proceedings were an abuse of process.  They did not consider it necessary to address the questions of standing or the form of procedure.

[8]	The test for whether a point of law should be set down for determination prior to trial is a restrictive one.  The concern, of course, is to avoid unnecessary delays and costs by splitting off issues.  The applicable principles were outlined by Charbonneau J. in BHP Billiton Diamonds Inc. v. Northwest Territories, 2007 NWTSC 10 (at para. 15), relying on Oil Sands Hotel (1975) Ltd. v. Alberta, [2002] A.J. No. 1444 (Q.B.):

a)	The Courts do not encourage the piecemeal trials of actions.  Only if the issue is readily severable and the Court is satisfied that the cost of a long trial may thereby be saved, will the order be granted.

b)	There is a danger in granting such orders, and they should be granted only in exceptional circumstances, where it is clear that the questions to be determined are completely severable, and where their determination will substantially expedite the litigation or materially curtail the cost of the same.

c)	The test is whether there is some evidence, which will make it at least possible that the issue will put an end to the action.

d)	The Courts should not attempt to determine substantial or difficult questions on preliminary issues.

e)	Where it seems clear that the trial on the preliminary issues would not save time or money unless the Applicant wins them completely, it is worth asking whether such a complete win is highly likely.

f)	The amount of documentation to be produced should be considered and the Court must be satisfied that the cost of a long trial would be saved by granting the Order.

g)	The following appear to be the relevant factors: 1. Will it end the suit, at least if decided on way; 2. Will there be a saving in time and money spent on litigation, again at least if decided one way; 3. Will it create an injustice; 4. Are the issues complex or difficult; 5. Will it result in a delay of the trial?


[9]	The issues raised by the Respondent are certainly ones that will have to be addressed.  As the Alberta Court of Appeal noted in Reece (at para. 20), cases where a civil proceeding is used to enforce or engage punitive penal statutes, rather than by directly charging the party allegedly responsible with the applicable offence, are generally found to be an abuse of process.  The relief sought under items (i) and (ii), noted above in the Originating Notice, fall into this category since both the Town By-Law 94-1317 and the Cities, Towns and Villages Act provide for the possibility of fines and/or imprisonment as punishment for offences under those statutes.  So these are certainly arguable issues.

[10]	The difficulty, however, is that determining these points of law will not resolve the litigation.  A trial will still be necessary to determine the main point, that being the respective surface and subsurface rights of the parties.  There may be merit in having points (a), (b) and (e) determined prior to the trial, since they are strictly questions of law dealing with standing and certain discrete items of relief, but that is something best left to the trial judge to decide.  Directions were given to counsel in the September 6 judgment and this could be something added to the information to be considered by the court in settling the course of the trial.

[11]	In my opinion, the preliminary points of law proposed by the Respondent would not save appreciable time and resources, would not resolve the litigation even if found in favour of the Respondent, and therefore this application is dismissed.  Costs are reserved to the trial judge.



J.Z.  Vertes
   J.S.C.

Dated this 26th day of September, 2011.


Counsel for the Applicant:   Paul N.K. Smith
(Town of Inuvik)

Counsel for the Respondent:   Gerard K. Phillips
(Shattler)

	Docket: S-1-CV-2011000115
	


IN THE SUPREME COURT OF THE
NORTHWEST TERRITORIES



BETWEEN:

MUNICIPAL CORPORATION OF THE TOWN OF INUVIK
	Applicant

	- and -


	TODD SHATTLER
	Respondent







MEMORANDUM OF JUDGMENT OF
THE HONOURABLE JUSTICE J.Z. VERTES