Dawson (City) v. Carey, (2014) 349 B.C.A.C. 167 (YukCA)

• Judge: Chiasson, D. Smith and Groberman, JJ.A.
• Court: Court of Appeal (Yukon Territory)
• Case Date: January 14, 2014
• Jurisdiction: Yukon
• Citations: (2014), 349 B.C.A.C. 167 (YukCA);2014 YKCA 3

Dawson v. Carey (2014), 349 B.C.A.C. 167 (YukCA);

    596 W.A.C. 167

MLB headnote and full text

Temp. Cite: [2014] B.C.A.C. TBEd. JA.065

The Town of the City of Dawson (appellant/plaintiff) v. Darrell Carey (respondent/defendant)

(12-YU705; 2014 YKCA 3)

Indexed As: Dawson (City) v. Carey

Yukon Court of Appeal

Chiasson, D. Smith and Groberman, JJ.A.

January 17, 2014.

Summary:

The defendant miner removed trees located within his placer mining claims on roads owned and occupied by the plaintiff Town. The Town sued for trespass.

The Yukon Supreme Court, in a decision reported at [2012] Yukon Cases Uned. 56, allowed the action.

The Yukon Supreme Court, in a decision reported at [2012] Yukon Cases Uned. 59, ordered that each party bear its own costs. The Supreme Court held that the Town was guilty of a "blatant abuse of case management practice"; the Town's pleadings were deficient, and the Town had engaged in "trial by ambush". The Supreme Court was critical of the Town's counsel, and considered that counsel's conduct of the case was worthy of censure. In the result, the Supreme Court deprived the Town of the costs to which it ordinarily would have been entitled. The Town appealed.

The Yukon Court of Appeal allowed the appeal. The Supreme Court was influenced in its costs order by an erroneous conclusion with respect to the law of pleadings, and on an unreasonable finding that counsel for the Town had deliberately concealed an argument in order to gain a tactical advantage. While the Supreme Court had discretion to penalize the Town for its failure to fully respect the case management process, the order was disproportionate to the gravity of the Town's conduct and had to be modified.

Practice - Topic 7021

Costs - Party and party costs - Entitlement to party and party costs - Successful party - Exceptions - Conduct - See paragraphs 27 to 43.

Practice - Topic 7022

Costs - Party and party costs - Entitlement to party and party costs - Successful party - Exceptions - Defective pleading or procedures - See paragraphs 16 to 26.

Cases Noticed:

Fuller v. Schaff, 2009 YKSC 22, refd to. [para. 14].

Counsel:

E.E. Vanderburgh, for the appellant;

T.L. Robertson, Q.C., and J.A. Morris, for the respondent.

This appeal was heard at Vancouver, B.C., on January 14, 2014, by Chiasson, D. Smith and Groberman, JJ.A., of the Yukon Court of Appeal. The following oral reasons for judgment of the Court of Appeal were delivered by Groberman, J.A., on January 17, 2014.