Supreme Court

Carter v. Northwest Territories Power Corp., No 2,  2014 NWTSC 72
Date:  2014 10 31
Docket:  S-1-CV-2012 000088

	IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

BETWEEN

JEAN CARTER, MYLES CARTER, DEAN CARTER, AND
KANDEE FROESE
Applicants

-and-


NORTHWEST TERRITORIES POWER CORPORATION AND THE MACKENZIE VALLEY LAND AND WATER BOARD
Respondents

	

Application for cost following judicial review.

Reasons filed:     October 31, 2014


REASONS FOR JUDGMENT OF THE
HONOURABLE JUSTICE K.  SHANER

Counsel for the Applicant:			Eleanor A.  Olszewski, Q.C.

Counsel for the Northwest Territories
 Power Corp:					Jonathan P. Rossall, Q.C. and
							Douglas Evanchuk

Counsel for the Mackenzie Valley
Land and Water Board:				W.J.  Hope-Ross



Carter v. Northwest Territories Power Corp.,  No 2, 2014 NWTSC 72
Date:  2014 10 31
Docket:  S-1-CV-2012 000088

	IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

BETWEEN

JEAN CARTER, MYLES CARTER, DEAN CARTER, AND
 KANDEE FROESE
Applicants

-and-


NORTHWEST TERRITORIES POWER CORPORATION AND THE MACKENZIE VALLEY LAND AND WATER BOARD
Respondents

REASONS FOR JUDGMENT

[1]	This is an application for costs following judicial review. The matter came before me by way of written submissions.
BACKGROUND

[2]	Details of the main application are set out in Carter v Northwest Territories Power Corp, 2014 NWTSC 19;  [2014] NWTJ No. 18; however, it is useful to provide a brief summary here.
[3]	The Applicants, Jean Carter, Myles Carter, Dean Carter and Kandee Froese (the “Carters”) sought judicial review of a decision of the MacKenzie Valley Land and Water Board (the “Board”) under the Northwest Territories Waters Act, SC 1992, c 39.  The decision was with respect to anticipated adverse effects on the Carters stemming from operations of the Northwest Territories Power Corporation (“NTPC”) under a Type “A” water license issued by the Board.
[4]	The grounds for the Carters’ judicial review application were essentially that the Board erred in denying the Carters procedural fairness; that it erred in determining it did not have authority to award compensation for past adverse effects; and it erred in determining the amount of compensation to be awarded to the Carters for future adverse effects.
[5]	In addition to the grounds for judicial review asserted by the Carters, other legal issues were addressed in the judicial review application.  NTPC raised the preliminary issue of who were the proper parties to the application, the “Applicants” having included the “spouses and children” of the Applicants named now, as well as the Nonacho Lake Fishing Camp.
[6]	The Board made submissions, some of which were found to stray beyond questions of jurisdiction and into the merits of its decision, and accordingly, this was addressed by the Carters as a preliminary issue.
[7]	Finally, the parties each made submissions on the standard of review.  Although each party took a somewhat different approach in their arguments on this, they were largely in agreement.
[8]	 The following is a summary of the findings with respect to each issue:
a.	The process the Board followed denied the Carters the appropriate level of procedural fairness and accordingly, it erred;
b.	The Board’s decision respecting the amount of compensation to be awarded to the Carters for past adverse effects was unreasonable;
c.	 The Board has no authority to award compensation for past adverse effects stemming from activities under previous water licenses and thus its decision not to do so was correct;
d.	The Applicants’ spouses and children, as well as the Nonacho Lake Fishing Camp, were not proper parties to the application; and
e.	The Board made a number of submissions which were improper because they went beyond matters of pure jurisdiction, clarification of the record and the standard of review, and into the merits of its decision.  These did not result in the Board’s impartiality being compromised, however.


THE PARTIES’ POSITIONS
[9]	  The Carters seek costs on a full-indemnity basis or, alternatively, on a substantial indemnity basis, against both NTPC and the Board.
[10]	NTPC argues success was divided and therefore, each party should bear its own costs.  It also argues costs ought not to be awarded against it because NTPC’s actions did not precipitate the need for judicial review.  Finally, NTPC argues if costs are to be awarded against it, it should be on a party-and-party basis only and it should be entitled to set-off.
[11]	The Board concurs with NTPC’s submission that the Carters were not successful and argues that no costs on any scale should be awarded against it.
ISSUES
[12]	The issues are:

a.	Whether the Carters were successful and if so, whether they are entitled to costs;
b.	Whether the Board should bear any of the costs;
c.	Whether NTPC should bear any of the costs; and
d.	What is the appropriate scale of costs?

LEGAL FRAMEWORK

Entitlement to Costs Generally

[13]	A successful party is typically entitled to costs. Nevertheless, the Court maintains discretion to award costs, as well as the basis or scale upon which they awarded.  In exercising its discretion there are certain common law principles and regulatory provisions which the Court must consider.

Scales of Costs

[14]	There are three scales of costs, namely, costs between parties on a party-and-party basis; costs between parties on a solicitor-and-client basis; and full indemnity costs, sometimes referred to as solicitor-and-own-client costs.  Fullowka v Royal Oak Ventures Inc., 2005 NWTSC 60 at para 5;  2005 CarswellNWT 55; 45 CCEL (3d) 235.
a.	Party-and-Party Costs

[15]	In most cases where a litigant is awarded costs, it is on the party-and-party scale.  These are intended to give the successful party a partial indemnity for the costs of certain steps in the litigation incurred in bringing the case forward or defending it, as the case may be.  The steps or items for which costs are recoverable – and the amount of each  – are set out in Schedule “A” to the Rules of the Supreme Court of the Northwest Territories.  The amounts vary in accordance with the value of the action and are stated in six columns in Schedule “A”; however, Rule 606.1 provides that in judicial review applications the values set out in Column 3 are to be used, unless otherwise ordered by the Court.

[16]	The Court has discretion to award party-and-party costs on an “enhanced” basis.  For example, it may order that costs be paid in accordance with a multiple of one of the columns in Schedule “A” (see, for example, Diavik v. Boullard et al, 2007 NWTSC 83) or that the costs be awarded on the basis of a column that corresponds to a higher judgment amount than what is claimed.  It may also order costs of a set sum be paid.  The complexity of the case, the adequacy of the costs recoverable under Schedule “A” in relation to the actual costs incurred and the importance of the issues raised for both the parties and the larger community are relevant considerations in determining whether enhanced party-and-party costs are warranted. WCB v Mercer et al; and Mercer v WCB, 2012 NWTSC 78, at para 11; 5142 NWT LTD et al v Town of Hay River et al, 2008 NWTSC 31, at para 6; Union of Northern Workers v Carriere (No. 2), 2013 NWTSC 27, at para 17.

b.	Party-and-Party Costs on a Solicitor-and-Client Scale

[17]	Costs between parties on the solicitor-and-client scale are intended to indemnify, often substantially, but not entirely, the successful party for fees and disbursements incurred for the steps set out in Schedule “A”.  They do not include the costs of legal services that are not reasonably necessary to take those steps. Apotex Inc. v. Egis Pharmaceuticals, 1991 CarswellOnt 3149 para 13; 4 OR (3d) 321.

[18]	Outside of contractual provisions (such as those typically found in mortgage agreements, for example) or specific statutory or regulatory provisions, costs between parties on the solicitor-and-client scale are generally awarded only in exceptional circumstances, such as “where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties”.  (Young v. Young, [1993] 4 SCR 3 (at 134)).

c.	Full Indemnity Costs

[19]	Full indemnity costs, or costs on a solicitor-and-own-client basis, represent the entire cost of fees and disbursements billed to the party by his or her lawyer. They include items that are not included in Schedule “A”. Barring contractual, statutory or regulatory provisions, these are awarded in only the most exceptional of circumstances, where a party’s conduct has been particularly egregious.

[20]	An example of the type of conduct that will attract a discretionary award of costs on this scale is found in  Baryluk (c.o.b. Wyrd Sisters) v. Campbell (2009), 66 CCLT (3d) 160, 2009 CarswellOnt 3900 (ONSC) at paras 9 – 10:
…this action constituted a scurrilous attack on the administration of justice.  The conduct of the defendants, judges of this court, was characterized by the plaintiff as case-fixing, abuse of public office, dishonesty and deceit in circumstances where there was no basis on the facts pleaded or submissions made to the court to support such outrageous allegations.  Reckless attacks on the integrity of judicial officers must be recognized as conduct requiring chastisement and deterrence.
There is ample authority for an award of full indemnity costs where unsubstantiated allegations of dishonesty, illegality, and conspiracy are advanced without merit.  While full indemnity and substantial indemnity costs are an exception to the general rule and awarded only under special circumstances, allegations made or conduct by a party that is “reprehensible, scandalous, or outrageous” falls within the ambit of an award of full indemnity costs. [citations omitted]

Determining the “Successful Party”
[21]	What constitutes “success”, and thus, the “successful party”, is not always clear.  It is not unusual for a party to succeed on some issues but not others. Sometimes courts determine that success is divided and order the parties to bear their own costs; however, that a party is not successful on all of the issues it brings before the court does not necessarily equate to divided success.  A party that succeeds on only some issues may nevertheless be considered “successful”. The Court must determine which, if any, party prevailed by examining the entire event.  (See, for example, Union of Northern Workers v Carriere (No. 2), 2013 NWTSC 27 at paras 48-52).

[22]	One way to determine success is to ask whether a party has been “substantially successful”. The Supreme Court of British Columbia addressed the issue of how to assess “substantial success” in Fotheringham v Fotheringham, 2001 BCSC 1321.  This case was decided in the context of  a divorce action and the Rules of the Supreme Court of  British Columbia, BC Reg 221/90 (which were in force at the time) but its principles are applicable in other contexts, such as judicial review.

[23]	Bouck, J., set out the following guidelines to use in determining “substantial success” for the purpose of costs:

[45]   Gold now seems to say that substantial success in an action should be decided by the trial judge looking at the various matters in dispute and weighing their relative importance.  The words "substantial success" are not defined.  For want of a better measure, since success, a passing grade, is around 50% or better, substantial success is about 75% or better.  That does not mean a court must descend into a meticulous mathematical examination of the matters in dispute and assign a percentage to each matter.  Rather, it is meant to serve as a rough and ready guide when looked at all the disputed matters globally.
***
	[46]   Based on the above interpretation of Rules 57(9), 57(15) and Gold, a decision to   award or not award costs after a trial might follow a four step inquiry.

     1.   First, by focusing on the “matters in dispute” at the trial.  These may or may not include “issues” explicitly mentioned in the pleadings.
     2.   Second, by assessing the weight or importance of those “matters” to the parties.
     3.   Third, by doing a global determination with respect to all the matters in dispute and determining which party “substantially succeeded,” overall and therefore won the event.
     4.   Fourth, where one party “substantially succeeded,” a consideration of whether there are reasons to “otherwise order” that the winning party be deprived of his or her costs and each side then bear their own costs.
Costs Awarded Against Administrative Tribunals
[24]	It is not unusual in judicial review for the tribunal be included as a party by an applicant.  The various ways in which tribunals may participate was canvassed in Carter v Northwest Territories Power Corp. supra, at paras 29-32.  Traditionally, tribunals play a limited role, restricting submissions to issues of pure jurisdiction and to clarify the record.

[25]	Although tribunals may fall into the category of an “unsuccessful” party following judicial review, costs are generally not awarded against them. There are, however, two circumstances where the Court may exercise its discretion to award costs against a tribunal: where there has been “misconduct or perversity in the proceedings before the tribunal” and where the tribunal strays from submissions on its own jurisdiction and into the merits of its decision:  Lang v British Columbia (Superintendent of Motor Vehicles), 2005 BCCA 244 at para 48; 254 DLR (4th) 111; see also R v Ontario (Labour Relations Board) (1969) 4 DLR (3d) 485 (Ont HC) Kelly v PEI (Human Rights Commission), 2010 PECA 6; York Advertising Ltd. v Ontario (Human Rights Commission), [2005] OJ No. 5066 (Div Ct); Court v Alberta (Environmental Appeal Board), 2003 ABQB 912.
ANALYSIS
Were the Carters Successful?

[26]	As noted, there were six issues in the judicial review application, as follows:

a.	Who were the proper parties to bring the application?;
b.	Whether the Board made submissions that went beyond the issues of jurisdiction, standard of review and clarification of the record;
c.	What was the appropriate standard of review against which to assess the Board’s decisions respecting process, jurisdiction and compensation?;
d.	Whether the Board denied the Carters procedural fairness;
e.	Whether the Board erred in concluding it did not have jurisdiction to award compensation for adverse effects occurring under past water licenses; and
f.	Whether the Board’s decision on compensation was reasonable.

[27]	Given the parties were in substantial agreement on the question of the appropriate standard of review and it was not a vigorously contested issue, this should be treated as a neutral factor in assessing overall success.


[28]	The procedural question of who were the proper parties to bring the application was raised by NTPC, which noted that the Applicants’ spouses and children, as well as the Nonacho Lake Fishing Camp, were not parties in the original proceedings before the Board.  Therefore, without leave of the Court, these other parties did not have standing to be included as applicants on the judicial review application.  NTPC’s position was accepted by the Court and the style of cause was amended accordingly.   This was a very minor procedural issue in the judicial review.

[29]	The question of the appropriateness of the Board’s submissions was addressed as a preliminary issue at the hearing. Some of the Board’s arguments tied into key issues.  Specifically, they were directed at the Carters’ arguments respecting procedural fairness, whether the Board’s decision on compensation was reasonable and the merits of the Carters’ argument regarding the Board’s authority to award compensation for adverse effects occurring under previous water licenses.  (See Carter v. Northwest Territories Power Corp., supra, at paras 27-57).  The question of how this issue should be treated for the purposes of costs is addressed later in these reasons.

[30]	There were three major issues that were the focus of the judicial review: the question of procedural fairness, the reasonableness of the Board’s decision and the Board’s jurisdiction to award compensation for past adverse effects. The Carters prevailed on two of these. They succeeded entirely in establishing they had been denied procedural fairness and that the Board’s decision on compensation was unreasonable.  The Carters did not establish that the Board had authority to award compensation for past adverse effects.

[31]	Viewed through a purely arithmetic lens, the Carters have not met the “rough and ready” standard of succeeding in 75% of the matters in dispute; however, as set out in Fotheringham, supra, as well as Union of Northern Workers v Carriere (No. 2), supra, the Court must look at the matter globally, taking into account the relative importance of those issues to the parties.

[32]	The Board suggests the issue of procedural fairness was a narrow one, representing only partial success by the Carters.  I disagree.  Adverse effects, and the determination of the compensation for them, are the reason the Carters were participating in the proceedings before the Board. Accordingly, the absence of procedural fairness in a matter which would have a direct financial effect on them was the heart of their application for judicial review. Notwithstanding that it did not result in the entire licensing process being quashed, the Court’s findings on the issue of fairness had significant implications for the Carters. The Board’s error was found to be one of the factors (the other being the failure to articulate appropriately a basis for its conclusions) which undermined the reasonableness of the Board’s decision respecting compensation for the Carters.  It resulted in, inter alia, an order quashing the Board’s decision on this issue.

[33]	The Board and NTPC argue that the issue of the Board’s jurisdiction to award compensation for adverse effects occurring under past water licenses was significant. I agree. This question had potentially significant financial implications for both the Carters and NTPC.  It would also have had an effect on compensation awarded in other water license applications before the Board.  It was argued vigorously and in my view, it was just as important as procedural fairness and reasonableness.

[34]	Based on the foregoing, I find success was divided, but not equally.  The Carters should have costs, but the amount should be reduced by one-third, to reflect that NTPC was successful on one of the three key substantive issues.

Should the Board Bear Any of the Costs?
[35]	The Carters argue that costs should be awarded against the Board on the basis of its conduct in the hearings before it, as well as improper submissions in the judicial review application.

[36]	As noted, such awards are rare, but they are made certain circumstances. A number of helpful authorities were provided to the Court to illustrate the type of conduct that will lead to an award of costs being made against a tribunal.

[37]	In Pink v. Davis,[2011] NSJ No. 329 (SC); 304 NSR (2d) 338 the Supreme Court of Nova Scotia awarded the applicant costs against the Nova Scotia Building Advisory Committee after finding it failed to give the applicant notice and an opportunity to be heard before making its decision.  G.M. Warner, J., stated the following respecting the tribunal’s conduct:
[89]	One of the functions of the Committee is to ‘hear appeals . . . It is bizarre and very troubling that the Committee, a statutory appeal tribunal, would be unaware of one of the most fundamental principles of natural justice, and of administrative law, reflected in the maxim audi alteram partem. It failed to give notice to the Applicant and afford her the opportunity to be heard respecting a subject matter in which she had the greatest interest.
[90]      Its system for dealing with appeals was either inadequate, or the conduct of its officials was lacking in diligence. It failed to consider the substantive response of the Municipality to the Respondents’ application, and, from the Respondents’ response to it, failed to recognize what was missing.
[38]	In Grochowski v Alberta Association of Architects, 1996 ABCA 138, costs were awarded against a tribunal on a solicitor-and-client scale.  Kerans, J.A. described the tribunal’s actions in the following terms:

[2]	At the hearing, the Council, despite a warning from [its lawyer], that they were to dela only with the one matter under appeal, entered findings against the appellant on the matters that had not been appealed and in respect of which findings in his favour had been made by the Complaint Review Committee.  Worse, it made a finding against him on a matter in respect of which he had never been charged!  It then altered in some ways the order for the consequent relief made by the Complaint Review Committee.

[39]	Although it was determined that the Board denied the Carters procedural fairness and that its decision did not meet the standard of reasonableness, it cannot be said that it engaged in the type of egregious misconduct that attracts costs.  The Board erred, but I conclude it did so in good faith.  There is nothing to suggest that its errors were the result of failure to follow legal advice or by negligence, nor that it was motivated by some sort of ill-will. In short, it did not display the egregious misconduct described in cases where cost sanctions have been imposed.

[40]	This leaves the question of whether the manner in which the Board presented its arguments on judicial review should attract costs.  The Board’s position is that they do not.  I do not agree.

[41]	The Board argues first, that it did not actively seek to become a party to the judicial review application.  Rather, the Carters named it as party and thus it had no choice but to participate. Second, the Board submits it did its best to stay within the appropriate parameters and points out it was determined, ultimately, that the improper submissions were relatively small transgressions: Carter v Northwest Territories Power Corp., supra, at para 57.

[42]	That the Board was an “involuntary” party has no bearing on the issue of costs. It was named as a party and it chose to participate actively in the proceedings.  All parties in litigation expose themselves to the potential of costs being awarded against them.  .

[43]	With respect to the Board’s position that its transgressions were minor, it is important to bear in mind that the Court’s conclusions were drawn in the context of determining whether, in light of its submissions in the judicial review application, the Board had compromised its impartiality and, consequently, its ability to rehear the application for compensation.  This does not change the fact that the Board made improper submissions on the merits which, in turn, forced the Carters to raise and address the appropriateness of the Board’s submissions and to incur additional costs.  It would be unfair to expect those costs to be borne by the Carters or by NTPC.

[44]	Determining the amount of the costs for which the Board should be responsible is, admittedly, challenging, given that the question of the appropriateness of the Board’s submissions was argued at the same time as the main application.  It is not impossible to find a rational basis upon which to determine what the amount should be, however. The matter of the Board’s submissions was one of four substantive issues argued before the Court.  Accordingly, the Board will be responsible for payment one-fourth of the costs to which the Carters are entitled.

Should NTPC Bear Any Costs?

[45]	NTPC argues it should not bear any costs because the application for judicial review was not precipitated by any actions or decisions on its part.  Alternatively, NTPC submits that success was divided and thus there should be a set-off of costs in accordance with Rule 647.

[46]	NTPC’s argument that it should not be subject to costs because it was not responsible for the Board’s decision has no merit. Judicial review is no exception to the general rule, noted above, that all parties in litigation expose themselves to the potential of costs. In addition to a great deal of case law on the matter, there is a specific provision in the Rules of the Supreme Court of the Northwest Territories, regarding costs on judicial review.  NTPC finds itself in the same position as an unsuccessful party on an appeal.  Appeals are frequently, though not always, driven by alleged error by the court below, rather than the actions of a party.  Nevertheless, unless otherwise ordered, the successful party on a civil appeal is entitled to costs:  Rule 40 of the Rules of the Court of Appeal Respecting Civil Appeals, R-142-91.

[47]	Set-off of costs is applicable when success is divided. However, in light of my finding that the Carters’ costs should be reduced by one-third and that a quarter of the remaining costs will be borne by the Board, further consideration of this argument is unnecessary.

[48]	Accordingly, NTPC will bear the remainder of the costs to which the Carters are entitled.

What is the Appropriate Scale of Costs?

[49]	NTPC argues there is no reason for the Court to deviate from awarding costs based on Column 3 of Schedule “A”, in accordance with Rule 606.1. It contends that the judicial review proceedings were relatively straightforward and uncomplicated, requiring less than one day for argument.

[50]	The Board argues that neither full indemnity costs, nor solicitor-and-client costs are justified.

[51]	The Carters’ position is that awarding costs on the basis of Column 3 or even, as suggested in the earlier judgment, on the basis of Column 5, would be inadequate in light of the actual legal fees incurred in bringing the matter forward for judicial review.  They point out they were required to bring the application to ensure they were afforded a fair process and incurred expenses they would not have had to incur had NTPC conceded and had the Board followed its own procedural rules.  Finally, the Carters argue that if the Court declines to award costs on a full indemnity basis it should award costs based on a substantial percentage of their reasonable out-of-pocket legal costs following assessment, or a multiple of Column 5.

[52]	Neither NTPC nor the Board have displayed conduct in these proceedings which would justify full indemnity costs or costs on a solicitor-and-client scale.  NTPC was under no obligation to concede on any of the issues raised by the Carters. This is not a case where justice will not be served by anything less than full indemnity costs.

[53]	Should costs be awarded on an enhanced scale?  The Carters have not provided evidence of what their actual legal fees are and therefore, no reliable conclusion can be drawn about the adequacy of costs on a party-and-party scale. Given the complexity and the importance of the issues, however, costs on an enhanced basis are justified.

[54]	I disagree with NTPC’s position that this matter was straightforward and uncomplicated. Issues on judicial review are generally uncomplicated in the sense that they are not surprising.  One can usually predict they will focus on some combination of procedural fairness, jurisdiction and the standard of review.  Sometimes there are additional issues such as, in this case, the appropriate parties and the role the tribunal should play if it is included as a party.  Though there is a plethora of judicial opinion and legal precedent on these issues, the legal principles are also relatively uncomplicated.  In many cases, however, sorting through the facts, the underlying legislation and applying the law of judicial review to those facts makes the process complicated, time-consuming and, ultimately, costly for the parties.  This case is no exception.

[55]	This judicial review emerged from a tribunal process which, based on the contents of the record, was complicated by a multiplicity of parties, procedures and issues. The record itself was comprised of thousands of pages of correspondence, expert reports and rulings. The legislation underpinning the proceedings is prolix.  Indeed, I have no doubt that counsel for all parties spent many hours sorting through the record and the relevant legislation, following which each of the legal issues had to have been assessed and legally analyzed in the context of the factual background emerging from the record. The parties had to put their interpretations of the facts and issues, as well as their legal analyses, before the Court both in writing and orally.  This could not have been a simple, uncomplicated task.

[56]	The importance of the issues must be considered in the context of their importance to the Carters and to the community generally:  Mercer, supra, at para 20.  The importance of the issues to the Carters is clear.  They make their home and living at Nonacho Lake and the Board found they would be adversely affected by the activities authorized under the water license.  It was – and is – important that a process be followed which would allow the Board to have before it all of the information it needed to make a fair and informed decision on the extent of compensation required to address the adverse effects.

[57]	The interests of the broader community parallel those of the Carters and are equally important.  In order to achieve the objectives of the regulatory scheme it is vital that anyone who will be adversely affected by activities authorized by a water license has a fair opportunity to put forward a case for compensation.

[58]	In light of the foregoing, I find that this is an appropriate case to order costs on the basis of Column 5 of Schedule “A”.

ORDER

[59]	An order will issue providing that:

a.	The Carters are entitled to two-thirds (2/3) of their party-and-party costs, to be taxed and assessed on the basis of Column 5 of Schedule “A” of the Rules of the Supreme Court of the Northwest Territories;

b.	One-fourth (1/4) of the amount of the costs determined above shall be payable by the Board and the remainder shall be payable by NTPC;

c.	Each of the parties shall bear their own costs of this application.



								
K.  Shaner
								JSC

Dated in Yellowknife, NT this
31st  day of October, 2014

Counsel for the Applicant:			Eleanor A.  Olszewski, Q.C.

Counsel for theNorthwest Territories
 Power Corp:					Jonathan P. Rossall, Q.C. and
							Douglas Evanchuk

Counsel for the Mackenzie Valley
Land and Water Board:				W.J.  Hope-Ross


S-1-CV-2012 000088


IN THE SUPREME COURT OF THE
NORTHWEST TERRITORIES


BETWEEN
JEAN CARTER, MYLES CARTER, DEAN CARTER, AND KANDEE FROESE
Applicants

-and-

NORTHWEST TERRITORIES POWER CORPORATION AND THE MACKENZIE VALLEY LAND AND WATER BOARD
Respondents



REASONS FOR JUDGMENT OF
THE HONOURABLE JUSTICE K.  SHANER