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After three strike outs, city appeals case for a fourth time

Whitehorse is taking resident Patricia Cunning to Appeal Court a fourth time. Last June, Cunning took the city to small claims court after being saddled with a $24,000 plumbing bill.

Whitehorse is taking resident Patricia Cunning to Appeal Court a fourth time.

Last June, Cunning took the city to small claims court after being saddled with a $24,000 plumbing bill. She never should have received the bill in the first place, she says.

The developers of the Takhini North house Cunning bought in 2004 shifted the costs of sewer and water repairs onto the residents, say Cunning and her lawyer Ron Cherkewich.

The city was negligent in not performing the repairs before the land, with Second-World-War-era plumbing, was sold off, they say.

The case has been parked in court for the last year because the city continues to appeal.

“It is our position that this case involves a matter of land and is therefore outside the jurisdiction of small claims court,” said city manager Dennis Shewfelt.

Last month, Supreme Court Judge E. Johnson ruled otherwise, saying Cunning has legal jurisdiction to have her case heard in small claims court.

It was the third time the city tried to appeal the case and failed.

“This is really pushing it in terms of small claim action,” said Cherkewich who received the appeal yesterday morning.

“They tried to get a second kick at the cat from the same judge,” said Cherkewich in reference to the two appeals to Judge Faulkner this past fall and winter.

“But they got two strikes so they tried to up the level (of court) and swung out a third time with Judge Johnson.”

Cherkewich doesn’t believe the city has a case if it tries to appeal the case on the same grounds.

“What purpose is there for this appeal, only that it is a delaying tactic,” said Cherkewich.

The city first appealed the case in July 2008, arguing the court didn’t have jurisdiction to try the case because Cunning was seeking damages beyond what small claims court can allow.

She had a concurrent case in the Supreme Court of Yukon with 73 other residents of Takhini North that sought similar damages.

As a result, Cunning dropped her case with the Supreme Court and chose to pursue the small claims case instead.

The city appealed a second time in January, stating small claims court didn’t have jurisdiction because the case dealt with an interest in land.

The city referenced a clause in the Small Claims Court Act that bars the court from dealing with “any action for the recovery of land or in which an interest in land comes in question.”

But twice, Judge Faulkner and Judge Johnson ruled Cunning had a solid case in small claims court irrespective of this clause.

The city has taken strong issue with the case being in small claims court, said Cherkewich.

“The city wants it to be in the Supreme Court where they can jerk around citizens,” he said.

“They love high courts because, as rich clients, they can enact proceedings that wear out the clients mentally.”

The city is saying it wants to take the case to the Supreme Court because of the complexity of the dispute.

“Small claims court is limited in scope to the full discovery of all evidence,” said Shewfelt.

According to the Small Claims Court Act, a case should be tried within a year from when the first claim is put forward.

It’s already been longer than a year, said Cherkewich.

And the Supreme Court case that the 73 residents of Takhini North have signed is stalled until Cunning’s case is tried.

They’re waiting for the results of her case to surface before they launch their own.

The city is making its pitch to the Yukon Court of Appeal. It should know by next week when the case will return to court.

Contact Vivian Belik at