Bemis v. Yukon et al.,

JurisdictionYukon
JudgeDonald, Frankel and D. Smith, JJ.A.
Neutral Citation2009 YKCA 7
Subject MatterCOURTS
Citation2009 YKCA 7,(2009), 271 B.C.A.C. 183 (YukCA),271 BCAC 183,(2009), 271 BCAC 183 (YukCA),271 B.C.A.C. 183
Date29 May 2009
CourtCourt of Appeal (Yukon Territory)

Bemis v. Yukon (2009), 271 B.C.A.C. 183 (YukCA);

    458 W.A.C. 183

MLB headnote and full text

Temp. Cite: [2009] B.C.A.C. TBEd. JN.034

Gary Bemis (appellant/petitioner) v. Government of Yukon, Department of Energy, Mines & Resources (Lands Branch), Linda Anderson, Yukon Municipal Board, City of Whitehorse (respondents/respondents)

(CA08-YU617; 2009 YKCA 7)

Indexed As: Bemis v. Yukon et al.

Yukon Court of Appeal

Donald, Frankel and D. Smith, JJ.A.

May 29, 2009.

Summary:

Anderson applied to the Department of Energy, Mines & Resources (Lands Branch) for permission to extend her lot which adjoined and overlapped land claimed by Bemis. The Lands Branch gave its approval and the City of Whitehorse gave formal subdivision approval. Bemis sought to appeal to the Yukon Municipal Board, but the Board declined jurisdiction. Anderson petitioned for judicial review of the Lands Branch decision, the City's decision and the Board's decision. Bemis sought an interlocutory injunction preventing the registration of Anderson's land extension pending the outcome of the petition for judicial review. The application judge declared his conflict of interest but agreed to deal with case management issues, and resolved, over Bemis' objections, to set down for hearing as a threshold issue whether Bemis had an interest in the disputed land sufficient to ground his petition for judicial review. Bemis appealed.

The Yukon Court of Appeal allowed the appeal. The court set aside the term of the order segregating the threshold issue and directed that the petition be set down for hearing in its entirety.

Courts - Topic 680

Judges - Disqualification - Conflict of interest - Anderson applied to the Department of Energy, Mines & Resources (Lands Branch) for permission to extend her lot which adjoined and overlapped the land claimed by Bemis - The Lands Branch gave its approval and the City of Whitehorse gave formal subdivision approval - Bemis sought to appeal to the Yukon Municipal Board, but the Board declined jurisdiction - Anderson petitioned for judicial review of the Lands Branch decision, the City's decision and the Board's decision - Bemis sought an interlocutory injunction preventing the registration of Anderson's land extension pending the outcome of the petition for judicial review - The application judge declared his conflict of interest but agreed to deal with case management issues, and resolved, over Bemis' objections, to set down for hearing as a threshold issue whether Bemis had an interest in the disputed land sufficient to ground his petition for judicial review - Bemis appealed - The Yukon Court of Appeal allowed the appeal - This was an adjudication that should not have taken place after the application judge declared a conflict of interest - While the order was procedural in nature, it was a decision on a disputed question and so the disqualification of the judge applied as well to that as to a full hearing on the merits - The application judge should have avoided making any significant procedural direction, especially one that could be taken to imply that the argument against Bemis' standing had sufficient cogency that it should be segregated from the other issues.

Counsel:

Gary Bemis, appearing on his own behalf;

Mike Winstanley, for the respondents, Government of Yukon and Department of Energy, Mines & Resources (Lands Branch);

Lori Lavoie, for the respondent, City of Whitehorse.

This appeal was heard on May 29, 2009, at Whitehorse, Yukon Territory, by Donald, Frankel and D. Smith, JJ.A., of the Yukon Court of Appeal. The following oral reasons for judgment of the Court of Appeal were delivered by Donald, J.A., on May 29, 2009.

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1 practice notes
  • Bemis v. Yukon et al., 2010 YKCA 2
    • Canada
    • Yukon Court of Appeal (Yukon Territory)
    • 27 d3 Janeiro d3 2010
    ...land sufficient to ground his petition for judicial review. Bemis appealed. The Yukon Court of Appeal, in a decision reported at 271 B.C.A.C. 183; 458 W.A.C. 183 , allowed the appeal. The court set aside the term of the order segregating the threshold issue and directed that the petition b......
1 cases
  • Bemis v. Yukon et al., 2010 YKCA 2
    • Canada
    • Yukon Court of Appeal (Yukon Territory)
    • 27 d3 Janeiro d3 2010
    ...land sufficient to ground his petition for judicial review. Bemis appealed. The Yukon Court of Appeal, in a decision reported at 271 B.C.A.C. 183; 458 W.A.C. 183 , allowed the appeal. The court set aside the term of the order segregating the threshold issue and directed that the petition b......

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