Nunavut judge tells GN to pay up after lawyers miss filing deadline

After its lawyers messed up a filing deadline, the Government of Nunavut must pay $9,969.79 plus $100 in costs to an Arctic Bay woman, Justice Neil Sharkey ruled in a judgment released April 13. (FILE PHOTO)

Because justice department lawyers screwed up a mandatory 30-day filing deadline, the Government of Nunavut must pay $9,969.79 plus $100 in costs to an Arctic Bay woman, Justice Neil Sharkey ruled in a judgment released April 13.

The woman, Irene Swoboda, had used her own money in January 2016 to pay for medical travel to Ottawa for a diagnostic procedure she receives every year.

After she scheduled her appointment, GN staff refused to pay for her trip to Ottawa on the grounds that the diagnostic procedure she sought is now available in Iqaluit.

The woman disagreed, flew to Ottawa for the appointment at her own expense and, in March 2016, used the GN’s internal appeal process to dispute the territorial government’s decision.

After she lost that appeal, Swoboda filed a claim in Small Claims Court for $9,979.69, an estimate that included the cost of airfare, hotels, lost wages, and ground transportation, plus the $75 small claims filing fee.

She formally served that claim on the GN’s legal department on Oct. 19, 2016.

Under the rules of Small Claims Court, the GN had 30 days to file a statement of defence: by Nov. 18, 2016.

But the GN missed that deadline, and on Nov. 22, 2016, Swoboda applied for and received, from a clerk of the court, a judgment against the GN ordering them to pay her the money.

After that, lawyers in the GN justice department brought a motion to the Nunavut court requesting that the default judgment against them be set aside.

The judge disagreed: Sharkey rejected the GN motion and ordered them to pay the money.

In doing do, he made it clear that GN medical travel rules and the woman’s diagnostic procedure were irrelevant to his judgment.

“This is not a case about medicine or medical travel. It is not a case about the decision making power of the minister of health or his officials to administer the GN medical travel policy,” Sharkey said.

“This is a case about time limits, rules, and dates for filing—full stop. It is about whether one party to a law suit should be allowed back in the game (so to speak) when they miss a time limit.”

And in ruling on the case, Sharkey found that the GN did not provide a reasonable explanation for their default.

“While it is an explanation, within the context of Small Claims Court and a self-represented litigant, inattentive legal work falls short of being a satisfactory excuse for a default,” Sharkey said.

An affidavit provided by the director of the GN justice department’s legal division said that because of high staff turnover and a shortage of lawyers, the file was not given to a staff lawyer until early November 2016.

But the director of the legal division incorrectly flagged the default deadline as Dec. 2, 2016.

She didn’t notice the mistake until Nov. 21, when she returned from duty travel, after the deadline had passed.

A clerk at the court added to the confusion by incorrectly informing the GN on Nov. 23 that no judgment had been entered, even though it had been entered.

So the GN went ahead and filed a motion Dec. 6 to overturn the judgment.

Sharkey said the GN’s error is not a valid excuse.

“I do not accept the notion of a high turnover and shortage of lawyers in the government legal department as an acceptable reason for why the file did not get proper attention or why the file was ‘bottlenecked’ at one person’s in-box. Many law firms in Canada are busy and many have a shortage of lawyers,” Sharkey said.

Swoboda v. Government of Nunavut by NunatsiaqNews on Scribd