The fate of downtown Whitehorse’s unique purple cabin is now in the hands of Yukon Supreme Court Justice Karen Wenckebach after a one-day summary trial on the building and property’s legal status in early May.
During the hearing, which took much of the day on May 3, Wenckebach heard arguments from lawyers for the Yukon government and the cabin’s tenant and owner.
The dispute between the two parties concerns the lease term between the Yukon government and the cabin’s owner, Leonard Tarka. Tarka obtained the lease for the land at the corner of 6th Avenue and Lambert Street through the Yukon government’s squatter policy in 1991.
The government believes the lease to the property lapsed in 2021 and has filed a lawsuit against Tarka and his tenant, Eric Delong. It is seeking an order that will force Delong to vacate the property and Tarka to ensure the removal of structures from the property.
The government is also seeking payment for Delong’s continued use of the property since the lease is believed to have expired on Sept. 30, 2021.
The hearing opened with testimony from Tarka. He recounted his efforts to get his claim to the property his cabin resides on legitimized in the late 1980s and early ’90s under the squatter policy.
Tarka told the court his original deal with the government was for a lifetime lease to the land, but that when it came time to sign an agreement, a “30-year clause” had been added. He says he ultimately signed the contract “under some duress” and added that he “just wanted to get a regular legal arrangement for the building.”
As part of the agreement, Tarka testified, he was required to ensure the building met “basic building safety standards,” so he repaired the cabin and cleaned the property. He also had to pay back taxes.
The lawyer for the Yukon government, Kimberly Sova, then spoke before the court, providing a “high-level overview” of the status of Crown land in the Yukon and the series of events that led to Tarka receiving a lease to the land.
Sova said that “in about 1986,” Tarka was residing in the cabin on Crown land without the authority to do so. She said he then applied to legitimize his occupation of the cabin through the squatter policy in 1987. A panel reviewed Tarka’s case and decided a lease would be the best outcome for his situation, a decision that the appropriate minister at the time accepted.
Sova said it took several years to finalize the agreement, although Tarka ultimately signed a deal that leased the property to him for “30 years or the life of the lessee from Oct. 1, 1991.”
This wording in the agreement is the source of the dispute between Tarka, Delong and the Yukon government. The defendants believe the lease should be good for the entirety of Tarka’s life, while the government maintains the intention of the agreement was for the lease to last three decades before possession of the property reverted to the territorial government.
Sova argued that the “30 years or the life of the lessee” passage should be interpreted as “30 years or life, whichever is less.” She also stated that a life-term lease could not be issued to Tarka because legislation at the time prevented the issuance of leases longer than 30 years.
“If we look at the contract as a whole and the surrounding circumstances, including the legislation, the only practical and common-sense interpretation was that the parties intended this to be a lease for a certain term. And that term was 30 years or the life of the lessee, we say, whichever occurred first,” Sova said.
She further stated that the defendants are challenging the Yukon government’s title to the land under one of several exceptions in the Land Titles Act, a “somewhat inexplicable” tactic, Sova told the court. She said that if the government had no title to the land, any agreement the government struck with Tarka would be invalid and his lease void.
“It’s inexplicable because if they are correct and Yukon had no authority over the leased land in 1991, the lease from Yukon to Mr. Tarka would be void. And therefore, Mr. Tarka and Mr. Delong would be unauthorized occupants of that land,” Sova said.
She added, “The defendants’ argument actually leaves them in a worse position.”
The defendant’s lawyer, Vincent Larochelle, painted a slightly different picture of what happened in the years leading up to the inking of a lease agreement between Tarka and the Yukon government in 1991. He stated that Tarka purchased the cabin in the 1970s, and that his client didn’t believe he was squatting on the property and that he owned the land.
Larochelle then recounted that the government informed Tarka of the squatter policy and his ability to apply to purchase the property, relocate the cabin or receive a lifetime lease for the land. He said a review panel informed Tarka that he’d been approved for a “life-estate lease,” and the relevant minister approved this decision.
As mentioned earlier, Tarka ultimately accepted the agreement with the inclusion of the 30-year clause. In his submissions to the court, Larochelle pointed out that the negotiations between the government and Tarka could not be viewed as a bargaining situation between “two equally armed parties,” as his client was a student at the time.
Much discussion between Larochelle and presiding judge Wenckebach was centred on the meaning of the phrase “life-estate lease.” Larochelle maintained that the term should be interpreted as a lease for the life of the lessee, although Wenckebach seemed less taken with this definition.
In response to the government’s assertion that a life lease would be impossible since regulations at the time only permit a maximum lease time of 30 years, Larochelle maintained that “a life estate is not a lease, and so there is nothing in the statutes that prevent its creation. It’s a freehold interest.”
He added, “There’s no legality argument, really, that prevents this agreement from creating a life estate … As far as I can tell, the Yukon Land Titles Act allows for the registration of life estates.”
Larochelle also argued that “it’s not clear what the term ‘30 years or life’ means” and that the wording is deliberately vague and “genuinely ambiguous.” He asserted that the court should resolve the agreement’s uncertainties.
“When one looks at the contract … from the terms of the contract itself, despite what the Crown was urging upon this court, it’s not clear what that term means — ‘30 years or life.’ If one were to take that contract and give it to someone who knows nothing about this case and ask them, ‘Okay, what does his contract mean to you,’ I don’t think they could interpret that clause one way or another,” Larochelle told the court.
At the conclusion of the hearing, Wenckebach told the court that she would be filing a written decision on the matters before her.
Contact Matthew Bossons at matthew.bossons@yukon-news.com