The Appeal by Heynen and his outfitter corporation Kusawa from an order dismissing Heynen’s application to quash a 2002 decision by the Minister of Renewable Resources revoking Heynen’s outfitting concession was allowed where the Court held that the trial judge erred in dismissing the action for delay in circumstances where Heynen was attempting to negotiate settlement of the claim with elected officials during the period of delay

Administrative law – Decisions of administrative tribunals – Ministerial orders – Permits and licences – Revocation – Judicial review – Delay – Limitations – Remedies – Certiorari

Heynen v. Yukon Territory, [2008] Y.J. No. 68, Yukon Territory Court of Appeal, October 6, 2008, M.N. Newbury, M.E. Saunders and E.C. Chiasson JJ.A.

Heynen and Kusawa had supplied guides to non-resident hunters in the Whitehorse area since 1967 pursuant to Heynen’s concession. Heynen was not provided with an opportunity to sell the concession, valued at about $1,000,000, before it was revoked in 2002. Heynen commenced an action 6 months after the revocation by issuing a Writ of Summons. Subsequently, a new government was elected and Heynen sought to settle his complaint with the new government but these negotiations were unsuccessful. Heynen started another proceeding in 2003, also by the way of Writ of Summons, seeking an order of certiorari and damages. A Statement of Claim was issued by Heynen and Kusawa in 2004 seeking an order setting aside the revocation, directing the current Minister to issue an outfitting concession and awarding general, punitive and aggravated damages. The two actions were consolidated in 2005. The trial judge was critical of the form of proceedings, observing the claim for certiorari should have been made in a petition for judicial review. Heynen ultimately agreed and the matter was set for a hearing in January, 2007. The trial judge then dismissed Heynen’s claim based on the one year delay in filing the second Writ and the delay in setting the matter for hearing. Heynen appealed this decision.

The Court of Appeal allowed the Appeal and quashed the Minister’s decision revoking the concession. The Court held that the trial judge’s refusal to quash the Minister’s decision on the basis of delay was unreasonable. Certiorari was a discretionary remedy which could be refused on the basis of unreasonable delay. However, in this instance the trial judge erred in his exercise of discretion by deprecating Heynen’s attempts to settle the dispute through negotiations with elected representatives and government officials. The Court held that Heynen’s claim should not have been dismissed where there was no more than minor prejudice to the Crown occasioned by the delay. The trial judge should have considered the serious harm caused to Heynen and Kusawa by the Minister’s decision.

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