Executive Summary: Key Legal and Evidentiary Issues

• Standing of the Applicant to bring judicial review when he was not a party to the Registrar's name reservation applications.
• Whether the Originating Notice was filed within the 21-day limitation period under s 106.1(2) of the Partnership and Business Names Act, given the absence of formal notice from the Registrar.
• Allegations that the second judicial review application was frivolous and vexatious under Rule 129 of the Rules of the Supreme Court of the Northwest Territories.
• Procedural fairness considerations, particularly whether the Registrar was obligated to provide reasons for approving the business name registrations.
• Reasonableness of the Registrar's conclusion that "Naka Power (NWT)", "Naka Power (Yellowknife)", and "Naka Power Utilities" were sufficiently distinct from "Naka Electric" to avoid public confusion under s 48(1) of the Act and s 19(2) of the Regulations.
• Applicable standard of review under Vavilov, including the bifurcated approach of reasonableness for the merits and correctness for the duty of procedural fairness.

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Facts of the case

Karel Pekelsky is a red seal electrician who operates Naka Electric, a sole proprietorship providing electrician services in Yellowknife and surrounding areas. He had previously worked as an electrician at the Giant Mine remediation project. Pekelsky submitted his application to the Registrar on March 3, 2021, and his business name Naka Electric was registered on March 4, 2021. Northland Utilities Enterprises Ltd. is the parent company of two subsidiaries, Northland Utilities (NWT) Limited and Northland Utilities (Yellowknife) Limited, which operate utilities in Yellowknife and elsewhere in the Northwest Territories, including the generation, transmission, distribution, and retail of electricity. In 2023, Northland began rebranding and ultimately chose the name "Naka", with the intention to use "Naka Power" or "Naka Energy". On December 18, 2023, Northland filed an Application for Name Search and Reservation for Naka Power (NWT) Limited, which was approved without conditions and reserved until March 17, 2024. On March 5, 2024, Northland filed four applications to reserve Naka Energy, Naka Power, Naka Power (NWT), and Naka Power (Yellowknife). The applications for Naka Energy and Naka Power were conditionally approved until June 3, 2024, on the condition that the consent of Naka Electric be obtained. The Naka Power (Yellowknife) application was conditionally approved subject to consent from Naka Power, Naka Power (NWT) Limited, and Naka Energy, but did not require the consent of Naka Electric. Northland contacted Pekelsky to obtain consent, and after communications, Pekelsky declined. Without Naka Electric's approval, Northland proceeded to register Naka Power (NWT) and Naka Power (Yellowknife) and decided against the name Naka Power. On March 27, 2024, Northland applied to register the two names, and by letter dated April 5, 2024, the Registrar advised that the names had been registered. A letter from Deputy Registrar Roberta Blake dated April 22, 2024, advised that Naka Power could not be used but that Naka Power (Yellowknife) and Naka Power (NWT) could be used, and Deputy Registrar Matthew Yap sent a further letter on May 15, 2024, confirming this. Northland subsequently applied to reserve and register additional names including Naka Power Distribution, Naka Power Distribution (NWT), Naka Power Distribution (Yellowknife), Naka Power Utilities, Naka Power Utilities (NWT), and Naka Power Utilities (Yellowknife), all approved without requiring consent from Naka Electric. Naka Power Utilities was approved on August 29, 2024. Pekelsky filed his first Originating Notice for Judicial Review (S-1-CV-2024-000130) on May 8, 2024, challenging the approval of Naka Power (NWT) and Naka Power (Yellowknife), and a second Originating Notice (S-1-CV-2024-000282) on September 17, 2024, challenging the approval of Naka Power Utilities. As the issues on both applications were substantially similar, the parties agreed to have both applications heard together.

Statutory framework and clauses at issue

Under s 48(1) of the Partnership and Business Names Act, RSNWT 1988, c P-1, the Registrar is required to refuse to register a business name that is similar to the name of another business and likely to confuse or mislead the public. Section 19(2) of the Partnership and Business Names Regulations, NWT Reg 095-2018, provides that a name is similar and likely to confuse or mislead if it would reasonably lead to the inference that the proposing entity is associated or affiliated with the other entity, or would lead a person interested in dealing with the other entity to deal with the proposing entity in the mistaken belief that they are dealing with the other. Section 11 of the Regulations enumerates non-exhaustive factors including the distinctiveness of the name, length of time in use, nature of the business, nature of the trade, degree of similarity in appearance or sound, and geographic area of use. Section 106.1(1) provides that a decision by the Registrar is final, while s 106.1(2) permits a person to seek judicial review within 21 days after receiving notice of the decision. Section 108 addresses how notice is generally provided under the Act but does not specify a method for the Registrar to notify the public of business name registrations. Rule 129 of the Rules of the Supreme Court of the Northwest Territories permits the Court to strike a proceeding that is scandalous, frivolous, or vexatious.

Standard of review

The parties agreed that reasonableness is the standard of review applicable to the Registrar's decision but disagreed on the standard for the procedural fairness issue. Applying Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, the Court held that the presumption of reasonableness applies to the Registrar's decision and other aspects of the decision, but questions related to the duty of procedural fairness, including whether reasons were required, continue to be assessed on the correctness standard, following Canadian Association of Refugee Lawyers v Canada, 2020 FCA 196.

Standing

Northland argued Pekelsky lacked standing because he was not a party to the applications, lacked a direct or causal connection, and his registration was unaffected. Applying the test for private interest standing from Imperial Oil Limited v Haseeb, 2023 ONCA 364, and Socanov Inc v Northwest Territories (Commissioner), 1993 CanLII 3412 (NWTSC), the Court found a directness or causal relationship between Pekelsky's grievance and the Registrar's decision. Pekelsky was specifically affected because Naka Electric's consent had been required for similar names using "Naka", and there was potential impact on his registered business. The Court concluded Pekelsky had standing.

Limitation period

Northland argued Pekelsky received effective notice on April 12, 2024, when he heard about the press release, making his May 8, 2024 filing 26 days later and outside the 21-day window. Pekelsky argued he only learned of the specific names registered on May 6, 2024, through an email from the Minister of Justice. The Court noted that the Act does not prescribe a method for the Registrar to provide notice of business name registrations to non-parties, and that courts lack jurisdiction to fill legislative gaps, citing Sullivan on the Construction of Statutes and R v Shubley, 1990 CanLII 149 (SCC). Relying on 1664694 Alberta Ltd v Beljan Development Management, 2021 ABCA 100, the Court held that the 21-day notice period began only on May 6, 2024, when Pekelsky received the email from the Minister of Justice constituting actual notice. The application was therefore filed within the limitation period, and it was unnecessary to consider whether the Court has discretion to extend the time.

Frivolous and vexatious

Applying Ash v Ontario (Chief Medical Officer), 2024 ONCA 398, and Tsa Corporation et al v Reynolds Mirth Richards & Farmer LLP et al, 2025 NWTSC 16, the Court found that the second application was not frivolous or vexatious. At the time the second application was filed, the first had not been decided, and Northland had sought registration of additional "Naka Power" names knowing Pekelsky objected. Pekelsky's position that "Naka Power" names would likely confuse or mislead the public with "Naka Electric" made it reasonable to pursue the second application.

Duty to provide reasons

Applying the Baker v Canada (Minister of Citizenship & Immigration) factors as endorsed in Vavilov, the Court concluded the Registrar was not required to provide reasons. The decision was administrative rather than adjudicative, there was no right of participation, no hearing, and no submissions process. The Act does not require the Registrar to provide reasons regarding business name registration, though it does require reasons when cancelling a registration under s 51(3). The decision did not have a significant impact on Pekelsky, who continues to operate Naka Electric. The Court noted the May 6, 2024 email from the Minister of Justice provided some insight into the Registrar's reasoning.

Reasonableness of the Registrar's decision

The Court found that adding descriptive elements such as "(NWT)", "(Yellowknife)", or "Utilities" to "Naka Power" was sufficient to distinguish the names from "Naka Electric". The Court observed that while both businesses are associated with electrical services, Naka Electric provides electrician services to customers as a sole proprietorship, whereas the "Naka Power" entities are involved in power distribution and are publicly regulated utility corporations. Neither party had been operating using "Naka" for a lengthy period. Pekelsky registered Naka Electric in March 2021 but did not immediately promote his business; his website was not completed until after the first judicial review was filed in May 2024, and as of November 29, 2024, he had not advertised through radio, newspaper, or television. Vic Barr, a Manager of the Respondent, testified that he had not heard of Naka Electric prior to Northland's applications. Applying Aquatera Utilities Inc v Aquaterra Water Management Inc, 2018 ABQB 962, the Court noted "likely to confuse" means probable confusion rather than possible confusion. Pekelsky's evidence of actual confusion, including phone calls and communications with an acquaintance, neighbour, and reporter, was found to be vague and unclear. The Court concluded the Registrar's decision fell within the range of acceptable outcomes.

Outcome

The judicial review applications were dismissed by Chief Justice S.H. Smallwood. The Court held that the Registrar's decision to register the business names Naka Power (NWT), Naka Power (Yellowknife), and Naka Power Utilities was reasonable. The successful parties were the Respondents, Northland Utilities Enterprises Ltd., Northland Utilities (NWT) Limited, and Northland Utilities (Yellowknife) Limited. The parties did not address costs in their submissions, and the Court directed that if they do not agree on costs or wish to make submissions, they may contact the Registry within 30 days of the decision to arrange filing deadlines for written submissions; the total monetary award and costs cannot be determined from the decision.