Whitehorse (City) v. Darragh, 2008 YKCA 19

• Judge: Frankel, J.A.
• Court: Court of Appeal (Yukon Territory)
• Case Date: December 12, 2008
• Jurisdiction: Yukon
• Citations: 2008 YKCA 19;(2008), 264 B.C.A.C. 139 (YukCA)

Whitehorse v. Darragh (2008), 264 B.C.A.C. 139 (YukCA);

    445 W.A.C. 139

MLB headnote and full text

Temp. Cite: [2009] B.C.A.C. TBEd. JA.039

The City of Whitehorse (appellant/petitioner) v. Marianne Darragh (respondent/respondent)

(08-YU624; 2008 YKCA 19)

Indexed As: Whitehorse (City) v. Darragh

Yukon Court of Appeal

Frankel, J.A.

December 31, 2008.

Summary:

Darragh was the main proponent of a petition that sought the creation of a public park in the City of Whitehorse. She collected the majority of signatures. After Darragh submitted the petition to the City, it applied for a declaration that the petition was invalid, as being outside the ambit of the petition/referendum provisions of the Municipal Act (Yuk.). The City named Darragh as the respondent.

The Yukon Supreme Court dismissed the application and awarded costs to Darragh. See 2008 YKSC 80. The City appealed. The City applied for a stay pending a determination of the appeal.

The Yukon Court of Appeal, per Frankel, J.A., held that the City should not be required to hold the referendum at this time, but dismissed the application to stay the costs order.

Courts - Topic 2110

Jurisdiction - Appellate jurisdiction - Single appellate judge - The Yukon Court of Appeal, per Frankel, J.A., agreed that the types of interim orders that could be made by a judge of the Court of Appeal for the Yukon Territory Court were the same as those that could be made by a judge of the Court of Appeal for British Columbia under s. 10(2)(b) of the current Court of Appeal Act (B.C.) - However, the applicable legislation was in fact the 1960 Act, which, unlike the current Act, included the words "at any time during vacation" - Frankel, J.A., assumed, without deciding, that those words placed temporal limits on the ability of a single judge of the court to make interim orders pending an appeal, and held that such a limitation did not apply at this time - "Vacation" was when the Court of Appeal was not "in session", i.e., a division of the court was not sitting - Although the court was "in session" when the matter came before him in chambers on December 12, 2008, it was not "in session" at the present time, and would not sit again until the week of January 5, 2009 - That being so, it had jurisdiction today (December 31, 2008) to make an interim order "to prevent prejudice to the claims of any parties pending an appeal" - See paragraph 16.

Practice - Topic 8304

Costs - Appeals - Appeals from order granting or denying costs - Stay of execution - [See Practice - Topic 8952 ].

Practice - Topic 8952

Appeals - Stay of proceedings pending appeal - When appellant entitled to stay - Darragh was the main proponent of a petition that sought the creation of a public park in the City of Whitehorse - She collected the majority of signatures - After Darragh submitted the petition to the City, it applied for a declaration that the petition was invalid, as being outside the ambit of the petition/referendum provisions of the Municipal Act (Yuk.) - The City named Darragh as the respondent - Veale, J., dismissed the application and awarded costs to Darragh - The City appealed - The City applied for a stay pending a determination of the appeal - The Yukon Court of Appeal, per Frankel, J.A., held that the City should not be required to hold the referendum at this time, but dismissed the application to stay the costs order - It could not be said that the City faced a serious risk of not being able to recover any monies that might have to be repaid as a result of a successful appeal - Further, to deny Darragh her costs at this time could prejudice her ability to contest the appeal, which raised an issue with respect to public participation in the democratic process, important not only to Darragh and the others who signed the petition, but to all Yukon residents.

Practice - Topic 8954

Appeals - Stay of proceedings pending appeal - What constitutes "irreparable harm" - The Yukon Court of Appeal, per Frankel, J.A., stated "That the party seeking relief can avoid what might prove to be irreparable harm by foregoing its right to litigate is not something that, in my opinion, forms part of the irreparable-harm analysis." - See paragraph 24.

Practice - Topic 8954

Appeals - Stay of proceedings pending appeal - What constitutes "irreparable harm" - Darragh was the main proponent of a petition that sought the creation of a public park in the City of Whitehorse - She collected the majority of signatures - After Darragh submitted the petition to the City, it applied for a declaration that the petition was invalid, as being outside the ambit of the petition/referendum provisions of the Municipal Act (Yuk.) - The City named Darragh as the respondent - Veale, J., dismissed the application - The City appealed and applied for a stay pending a determination of the appeal - The Yukon Court of Appeal, per Frankel, J.A., held, inter alia, that the City had established irreparable harm - Notwithstanding that the amount involved would not be a major expense for the City, it was rightly concerned about the potential for unnecessary expenditure of public funds - This included not only the actual money that would have to be spent to hold the referendum, but also the costs relating to the time City staff would have to devote to preparing for, and holding, the referendum - See paragraphs 21 to 24.

Practice - Topic 8956

Appeals - Stay of proceedings pending appeal - Stay of proceedings on terms - [See Practice - Topic 8958 ].

Practice - Topic 8958

Appeals - Stay of proceedings pending appeal - Balance of convenience and justice - Darragh was the main proponent of a petition that sought the creation of a public park in the City of Whitehorse - She collected the majority of signatures - After Darragh submitted the petition to the City, it applied for a declaration that the petition was invalid, as being outside the ambit of the petition/referendum provisions of the Municipal Act (Yuk.) - The City named Darragh as the respondent - Veale, J., dismissed the application - The City appealed and applied for a stay pending a determination of the appeal - The Yukon Court of Appeal, per Frankel, J.A., held, inter alia, that the balance of convenience favoured the City - What the City was seeking was an "exemption", as opposed to a "suspension", of the law - The order would only affect one petition for a short time - Should the appeal be dismissed, then the electors would have their voices heard - An interim order would only maintain the status quo - Any concerns regarding the possible loss of some of the proposed parkland could be addressed through conditions in the order - See paragraphs 25 to 30.

Practice - Topic 8969

Appeals - Stay of proceedings pending appeal - Stay of costs order - [See Practice - Topic 8952 ].

Cases Noticed:

McLean Lake Residents' Association v. Whitehorse (City) (2008), 47 M.P.L.R.(4th) 225; 2008 YKSC 46, refd to. [para. 5].

Caputo v. Workers' Compensation Board (B.C.) (1986), 10 B.C.L.R.(2d) 226 (C.A.), refd to. [para. 14].

Bolton v. Forest Pest Management Institute (1985), 66 B.C.L.R. 126 (C.A.), refd to. [para. 14].

Andler v. Duke (No. 2) (1931), 44 B.C.R. 201 (C.A.), folld. [para. 16].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1994] 1 S.C.R. 311; 164 N.R. 1; 60 Q.A.C. 241, refd to. [para. 18].

Yukon Medical Council v. Information and Privacy Commissioner (Yuk.), 2001 YKCA 8, refd to. [para. 18].

Hutchingame v. Johnstone et al. (2006), 229 B.C.A.C. 48; 379 W.A.C. 48; 2006 BCCA 353, refd to. [para. 20].

Harper v. Canada (Attorney General), [2000] 2 S.C.R. 764; 262 N.R. 201; 271 A.R. 201; 234 W.A.C. 201; 2000 SCC 57, refd to. [para. 28].

Kiewit (Peter) & Sons Co. v. Perry et al. (2006), 226 B.C.A.C. 280; 373 W.A.C. 280; 2006 BCCA 259, refd to. [para. 38].

Counsel:

D.R. Bennett, for the appellant;

Z. Brown (via teleconference), for the respondent.

This appeal was heard in Chambers at Vancouver, B.C., on December 12, 2008, by Frankel, J.A., of the Yukon Court of Appeal, who delivered the following decision on December 31, 2008.