The Yukon Court of Appeal reversed a lesser court’s decision to strike down a lawsuit regarding damage to a ranch caused by wild elk in the Takhini Valley.
The Yukon Government’s Environment department had applied for the lawsuit to be thrown out.
The lawsuit in question was launched by Wayne and Alison Grove, the owners of El Dorado Ranch in the Takhini Valley, in 2020.
The Groves claimed that the Takhini elk herd, introduced into the valley between the 1950s and 1990s by the Environment department, have done significant damage to their property. The groves claimed the government was negligent, made negligent misrepresentations and created a nuisance through their management of the Elk Herd.
In late 2020, the Yukon government filed an application asking the court to strike the lawsuit, claiming it had no reasonable prospect of success. In the summer of 2021 Yukon Supreme Court Chief Justice Suzanne Duncan struck the claim but gave the Groves a chance to amend it and bring it back to the court.
Court documents state that the decision to strike down the lawsuit was based on Duncan’s finding that the Groves were unable to establish that the government owed them a duty of care. Even outside of this, documents state the decision had also been based on the “non-operational nature” of the plans and policies surrounding the elk, the availability of a compensation plan for damage caused by the elk and the conflict between private law duty and duty to the whole public.
Wayne Grove said the government’s compensation scheme is inadequate for putting up the eight-foot-high metal fencing he had to install on his property in order to keep the wild elk from damaging his crops or harming his captive herd of elk. He added that fencing may have unintended consequences as it restricts the travel of other wildlife and in some cases funnels them into places they shouldn’t be. He said the problem of the narrowed wildlife corridor was grimly illustrated when a grizzly attacked and killed one of his dogs on his property.
The Groves’ appeal considered by the Court of Appeal argued that the judge erred in law by striking their initial claims. The three-judge Court of Appeal panel: Justices Robert Bauman, Richard Goepel and Susan Charlesworth all concurred that the Groves’ appeal should be allowed and the order striking the statement of claim should be set aside.
Charlesworth penned the reasons for the judgement that the other two justices agreed with. A summary says that it wasn’t plain and obvious that the Groves had failed to establish the government’s negligence or that is was plain and obvious that the government didn’t owe the Groves a duty of care. The policy explanations for getting around the duty of care were found insufficient.
“The judge also conflated the negligence and nuisance analyses, leading to an erroneous conclusion. When faced with complex and competing arguments about unsettled and fact-specific areas of law such as these, and of course when it is not plain and obvious a claim is bound to fail, courts must leave such a conclusion to the trial judge,” the summary reads.
The reasons for judgement also state that the Groves are entitled to the costs they incurred in bringing the appeal.
“Why wasn’t that the first judgement? It only makes sense, the first judgement in my mind didn’t make any sense,” Wayne Grove said.
He said his goal with the legal action has always been to see fair treatment for the farmers in the elk buffer zone, who are unable to shoot elk on their properties even if they are damaging crops or otherwise causing a nuisance. He notes that in the rest of the territory, outside the elk zone, anyone can shoot an elk any day of the year.
Grove said that he and the other farmers in the area are at a serious disadvantage because of the damage the elk do. Despite this, their properties are zoned for agriculture primary so they have to farm them. He is seeking both compensation and more permanent solutions to the elk problem.
“It’s up to the government where it goes. The ball’s in their court it’s always been in their court,” Grove said of his claims proceeding to a trial.
Contact Jim Elliot at firstname.lastname@example.org