Whitehorse (City) v. Darragh, 2009 YKCA 10

• Judge: Donald, Frankel and D. Smith, JJ.A.
• Court: Court of Appeal (Yukon Territory)
• Case Date: May 26, 2009
• Jurisdiction: Yukon
• Citations: 2009 YKCA 10;(2009), 275 B.C.A.C. 93 (YukCA)

Whitehorse v. Darragh (2009), 275 B.C.A.C. 93 (YukCA);

    465 W.A.C. 93

MLB headnote and full text

Temp. Cite: [2009] B.C.A.C. TBEd. AU.026

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

(YU0624; 2009 YKCA 10)

Indexed As: Whitehorse (City) v. Darragh

Yukon Court of Appeal

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

August 21, 2009.

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. See (2008), 264 B.C.A.C. 139; 445 W.A.C. 139.

The Yukon Court of Appeal allowed the appeal.

Municipal Law - Topic 7404

Plebiscites and referendums - General - When available - A City's application for a declaration that a petition for referendum was invalid as being outside its jurisdiction under the Municipal Act was dismissed - The Yukon Court of Appeal allowed the City's appeal - The chambers judge erred by interpreting the Act as authorizing a referendum procedure to amend the City's Official Community Plan Bylaw - The court stated that "The purpose of Part 7, the 'orderly development and use of land ... in municipalities ... without infringing on the rights of individuals, except to the extent that is necessary for the overall greater public interest,' differs from the more ad hoc nature of referendums. Planning is a dynamic process. Planning legislation necessarily has multiple objectives, including the regulation of the development of land, the prevention of conflicts with individual property owners, the avoidance of the consequences associated with ad hoc decision making, the facilitation of the orderly resolution of competing policy issues, and the allocation of scarce resources for the benefit of sustainable and predictable long-range community development. In this case, competing territorial interests over heritage resources and environmental concerns also require co-ordinated policy responses." - See paragraph 37.

Municipal Law - Topic 7404

Plebiscites and referendums - General - When available - A City's application for a declaration that a petition for referendum was invalid as being outside its jurisdiction under the Municipal Act was dismissed - The Yukon Court of Appeal allowed the City's appeal - The chambers judge erred by interpreting the Act as authorizing a referendum procedure to amend the City's Official Community Plan Bylaw (OCP) - Section 153 of the Act authorized an eligible voter to initiate, amend, or repeal a bylaw by referendum with the exception of operating budget, capital budget or general property taxation bylaws - There was no express statutory exception for bylaws to adopt or amend the OCP - However, the court was not persuaded that the principle of implied exclusion ("expressio unius est exclusio alterius") was applicable to exemptions listed in s. 153 - The exempted bylaws were enacted by the ordinary procedure set out in s. 218 of the Act - OCP bylaws were not subject to that procedure - Further, historically, there had been a cautionary approach taken to the application of the maxim - See paragraphs 38 to 40.

Practice - Topic 8331.1

Costs - Appeals - Costs of appeal - Public interest - A City's application for a declaration that a petition for referendum was invalid as being outside its jurisdiction under the Municipal Act was dismissed - The Yukon Court of Appeal allowed the City's appeal - The chambers judge erred by interpreting the Act as authorizing a referendum procedure to amend the City's Official Community Plan Bylaw - The respondent (Darragh) sought indemnification for her costs through an order for special costs based on a characterization of the action as public interest litigation - She submitted that the action, in seeking a determination on the scope of Part 3 of the Act, amounted to a test case that went beyond the litigants' private interests - The City submitted that costs should follow the event - The court ordered each party to bear their own costs - The application was initiated by the City - In the first instance before the chambers judge, and on appeal, Darragh had been the respondent - Although she had some private interest in the litigation as a property owner and resident of the area in issue, her position in the appeal was representative of a larger group of City residents who also signed the petition for referendum - Given the extent of the litigation to date, the issue raised appeared to be a matter of some public import, even though it might not reach the threshold of a "highly exceptional case" - See paragraphs 48 to 50.

Statutes - Topic 499

Interpretation - General principles - General - The Yukon Court of Appeal stated that "Principles of statutory interpretation are not rules of law; they are merely aids to provide guidance in determining legislative intent." - See paragraph 34.

Statutes - Topic 1554

Interpretation - Construction where meaning is not plain - Implied meaning - Stating one thing implies exclusion of another (expressio unius est exclusio alterius) - [See second Municipal Law - Topic 7404 ].

Cases Noticed:

McLean Lake Residents' Association v. Whitehorse (City) and Yukon (Department of Energy, Mines and Resources) (2007), 38 M.P.L.R.(4th) 246; 2007 YKSC 44, refd to. [para. 2].

McLean Lake Residents' Association v. Whitehorse (City) (2008), 47 M.P.L.R.(4th) 225; 2008 YKSC 46, refd to. [para. 2].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 27].

Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1; 2002 SCC 42, refd to. [para. 30].

R. v. Ulybel Enterprises Ltd., [2001] 2 S.C.R. 867; 275 N.R. 201; 206 Nfld. & P.E.I.R. 304; 618 A.P.R. 304; 2001 SCC 56, refd to. [para. 31].

Lévis (City) v. Fraternité des policiers de Lévis Inc. et al., [2007] 1 S.C.R. 591; 359 N.R. 199; 2007 SCC 14, refd to. [para. 31].

Jones v. New Brunswick (Attorney General) - see Official Languages Act, Re.

Official Languages Act, Re, [1975] 2 S.C.R. 182; 1 N.R. 582; 7 N.B.R.(2d) 526, refd to. [para. 38].

Pitt Polder Preservation Society v. Pitt Meadows (District) (2000), 139 B.C.A.C. 247; 227 W.A.C. 247; 2000 BCCA 415, refd to. [para. 42].

Pevach v. La Ronge (Town) (1996), 148 Sask.R. 319; 134 W.A.C. 319 (C.A.), refd to. [para. 43].

Sillito v. Sturgeon No. 90 (Municipal District), [1990] A.J. No. 208 (C.A.), refd to. [para. 43].

Burnco Rock Products Ltd. et al. v. Rockyview No. 44 (Municipal District) et al. (1995), 174 A.R. 300; 102 W.A.C. 300; 30 M.P.L.R.(2d) 71 (C.A.), refd to. [para. 43].

British Columbia (Minister of Forests) v. Okanagan Indian Band et al., [2003] 3 S.C.R. 371; 313 N.R. 84; 189 B.C.A.C. 161; 309 W.A.C. 161; 2003 SCC 71, refd to. [para. 49].

Statutes Noticed:

Municipal Act, R.S.Y. 2002, c. 154, sect. 153 [para. 38]; Part 7 [para. 5].

Authors and Works Noticed:

Côté, Pierre-André, Interpretation of Legislation in Canada (3rd Ed. 2000), pp. 337, 339 [para. 40].

Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), pp. 183 to 186 [para. 33]; 325 [para. 31]; 327 [para. 32].

Counsel:

D.R. Bennett, for the appellant;

Z. Brown, for the respondent.

This appeal was heard at Whitehorse, Yukon, on May 26, 2009, by Donald, Frankel and D. Smith, JJ.A., of the Yukon Court of Appeal. D. Smith, J.A., delivered the following decision for the court at Vancouver, B.C., on August 21, 2009.