Heynen et al. v. Yukon Territory et al., (2008) 260 B.C.A.C. 160 (YukCA)

• Judge: Newbury, Saunders and Chiasson, JJ.A.
• Court: Court of Appeal (Yukon Territory)
• Case Date: June 19, 2008
• Jurisdiction: Yukon
• Citations: (2008), 260 B.C.A.C. 160 (YukCA);2008 YKCA 14

Heynen v. Yukon (2008), 260 B.C.A.C. 160 (YukCA);

    439 W.A.C. 160

MLB headnote and full text

Temp. Cite: [2008] B.C.A.C. TBEd. OC.007

Klaas Heynen and Kusawa Outfitters Ltd. (appellants/plaintiffs) v. Government of the Yukon Territory and the Honourable Dale Eftoda, (Former) Minister of Renewable Resources (respondents/defendants)

(07-YU588; 2008 YKCA 14)

Indexed As: Heynen et al. v. Yukon Territory et al.

Yukon Court of Appeal

Newbury, Saunders and Chiasson, JJ.A.

October 6, 2008.

Summary:

Heynen's long-held outfitting concession was revoked by the Minister of Renewable Resources, under the Wildlife Act. Heynen sought an order quashing the revocation.

The Yukon Supreme Court, in a decision reported as 2007 YKSC 49, dismissed the claim, finding that there was "undue and inexcusable delay" on the part of Heynen in bringing the matter to court. Heynen and his outfitter corporation appealed.

The Yukon Court of Appeal allowed the appeal, set aside the order and quashed the Minister's decision.

Administrative Law - Topic 5028

Judicial review - Certiorari - Grounds for granting certiorari - Delay - The outfitting concession in issue had been held by Heynen and his outfitter corporation, the plaintiffs, since 1967 - It was revoked by the Minister of Renewable Resources, under the Wildlife Act, in March 2002 - In October 2002, the plaintiffs commenced an action - In November 2002, there was a change in government, and Heynen sought to settle the complaint by approaching elected representatives and government officials - He was unsuccessful, and in March 2003, the plaintiffs started another proceeding, seeking an order of certiorari and damages - The defendants pleaded that the plaintiffs were not entitled to judicial review because it was not sought in a timely and proper manner - In January 2007, the plaintiffs agreed that the matter should proceed as judicial review and it was set for hearing in June 2007 - The Yukon Supreme Court dismissed the claim on the basis that the plaintiffs' delay in seeking judicial determination was unreasonable - The plaintiffs appealed - The Yukon Court of Appeal allowed the appeal, set aside the order and quashed the Minister's decision - The trial judge erred in basing his conclusion of unreasonable delay on the overtures of the plaintiffs to elected representatives and government officials, and failed to consider relevant factors, including the minimal degree of prejudice to the defendant and the plaintiffs' serious loss.

Administrative Law - Topic 5186

Judicial review - Certiorari - Discretionary bars to issue of certiorari - Delay, inconvenience or expense - Heynen's long-held outfitting concession was revoked by the Minister of Renewable Resources, under the Wildlife Act - Heynen sought an order quashing the revocation - The Yukon Supreme Court dismissed the claim, finding that there was "undue and inexcusable delay" on the part of Heynen in bringing the matter to court - Heynen and his outfitter corporation appealed - The Yukon Court of Appeal allowed the appeal - The court began its analysis by observing the jurisprudence that the granting of certiorari was discretionary, that it might be refused on the basis of unreasonable delay in bringing the action, and that the court could interfere only if the trial judge considered irrelevant factors, failed to consider relevant factors, or reached an unreasonable conclusion - Whether there was unreasonable delay depended upon the circumstances of each case, and "the judge should bear in mind the apparent merits of the case and the prejudice that may flow to either side on the exercise of the discretion" - The circumstances to be considered included the nature of the impugned decision and its place in the legislative scheme, the reason for the delay and the extent of the delay - See paragraphs 15 to 17.

Crown - Topic 685

Authority of Ministers - Exercise of - Administrative decisions - Appeals or judicial review - [See Administrative Law - Topic 5028 ].

Cases Noticed:

R. v. Sheward (1880), 5 Q.B.D. 179, affd. (1880), 9 Q.B.D. 741 (C.A.), refd to. [para. 15].

Friends of the Oldman River Society v. Canada (Minister of Transport and Minister of Fisheries and Oceans), [1992] 1 S.C.R. 3; 132 N.R. 321; 88 D.L.R.(4th) 1, refd to. [para. 15].

Burchill v. Yukon Territory (Commissioner) (2002), 165 B.C.A.C. 295; 270 W.A.C. 295; 2002 YKCA 4, refd to. [para. 15].

Canadian Pacific Ltd. v. Matsqui Indian Band et al., [1995] 1 S.C.R. 3; 177 N.R. 325; 122 D.L.R.(4th) 129, refd to. [para. 16].

MacLean v. University of British Columbia (1993), 38 B.C.A.C. 291; 62 W.A.C. 291; 87 B.C.L.R.(2d) 238; 109 D.L.R.(4th) 569 (C.A.), refd to. [para. 17].

McColl, Re (1973), 14 C.C.C.(2d) 365; 42 D.L.R.(3d) 763 (B.C.S.C.), refd to. [para. 17].

Turnagain Holdings Ltd. v. Environmental Appeal Board (B.C.) et al. (2002), 178 B.C.A.C. 35; 292 W.A.C. 35; 6 B.C.L.R.(4th) 30; 2002 BCCA 564, refd to. [para. 24].

Counsel:

T.L. Robertson, Q.C., and W.S. Taylor, for the appellants;

P. Gawn and S. Schorr, for the respondents.

This appeal was heard on June 19, 2008, at Vancouver, B.C., before Newbury, Saunders and Chiasson, JJ.A., of the Yukon Court of Appeal. Saunders, J.A., delivered the following judgment for the court on October 6, 2008.