Heynen et al. v. Yukon Territory et al., 2010 YKCA 1

• Judge: Newbury, Saunders and Chiasson, JJ.A.
• Court: Court of Appeal (Yukon Territory)
• Case Date: June 19, 2008
• Jurisdiction: Yukon
• Citations: 2010 YKCA 1;(2010), 279 B.C.A.C. 263 (YukCA)

Heynen v. Yukon (2010), 279 B.C.A.C. 263 (YukCA);

    473 W.A.C. 263

MLB headnote and full text

Temp. Cite: [2010] B.C.A.C. TBEd. JA.041

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; 2010 YKCA 1)

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

Yukon Court of Appeal

Newbury, Saunders and Chiasson, JJ.A.

January 5, 2010.

Summary:

Heynen's outfitting concession was revoked by the Minister of Renewable Resources, under the Wildlife Act. Heynen sought an order that "the revocation of the concession by the Minister be reviewed and set aside" and "the current Minister of the Environment be directed to issue an Outfitting Concession ... for Wildlife Area 17".

The Yukon Supreme Court, in a decision reported at 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, in a decision reported at (2008), 260 B.C.A.C. 160; 439 W.A.C. 160; 2008 YKCA 14, allowed the appeal. The form of the order was in dispute. Heynen would include in the order a provision that the matter of renewal of the outfitting concession be remitted to the Minister for consideration. The parties disagreed on the scale of costs in the Yukon Supreme Court.

The Yukon Court of Appeal recited the order in these terms: "... the appeal be allowed and that the Minister's decision of March 27, 2002 revoking the outfitting concession for Yukon Outfitting No. 17, be quashed." This was not an appropriate case for double costs.

Crown - Topic 685

Authority of Ministers - Exercise of - Administrative decisions - Appeals or judicial review - [See Practice - Topic 6032 ].

Practice - Topic 6032

Judgments and orders - Reasons for judgment after trial or application - Interpretation of - Heynen and his outfitter corporation (the appellants) sought an order that "the revocation of the concession by the Minister be reviewed and set aside" and "the current Minister of the Environment be directed to issue an Outfitting Concession ... for Wildlife Area 17" - The trial judge dismissed the claim - The Yukon Court of Appeal allowed the appeal - In its reasons, the court said "the appellants should obtain the relief sought", and that it would "set aside the order and grant an order quashing the Minister's decision ... revoking the Concession in issue" - The form of the order was in dispute - The appellants would include in the order a provision that the matter of renewal of the concession be remitted to the Minister for consideration - In supplementary reasons for judgment, the court stated that the order should be in the following terms: "... the appeal be allowed and that the Minister's decision of March 27, 2002 revoking the outfitting concession for Yukon Outfitting No. 17, be quashed." - That is, the claim for certiorari succeeded, but the court did not order relief in the nature of mandamus - In reciting the order in this fashion, the court did not mean to say the renewal application should not go ahead; the order made restored the status quo, thereby putting the parties in the position they were in just prior to the impugned decision.

Practice - Topic 7242.1

Costs - Party and party costs - Offers to settle - Grounds for denying double costs - Heynen and his outfitter corporation (the appellants) sought an order that "the revocation of the concession by the Minister be reviewed and set aside" and "the current Minister of the Environment be directed to issue an Outfitting Concession ... for Wildlife Area 17" - The trial judge dismissed the claim - The Yukon Court of Appeal allowed the appeal - On the matter of costs, the parties agreed that the appellants were entitled to costs of the appeal (except as to the application to adduce fresh evidence) and costs in the Yukon Supreme Court - They disagreed, however, on the scale of costs in the Yukon Supreme Court - The appellants sought double costs after a certain date on the basis of an offer to settle; the respondents argued that the usual scale should apply - The court held that this was not an appropriate case for double costs - The action was wrongly commenced by writ and statement of claim; it should have been commenced by petition for prerogative writs, given the nature of the relief sought - An award of double costs was not appropriate because of the special nature of the proceeding and the absence of a true "lis" between the parties.

Counsel:

T. Robertson, Q.C., and W. 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 judgment for the Court, on October 6, 2008. On January 5, 2010, the Court delivered the following supplementary judgment with supplementary reasons.