Case over large, gregarious deer1 destroying property in Yukon’s Takhini River Valley lives to see another day
The Yukon Court of Appeal decided a fascinating case on September 15, 2022, dealing with the Yukon Government’s decision to introduce wild elk between 1951 and 1994 in the Takhini River Valley. In Grove v. Yukon (Ministry of the Environment), ranch owners in the valley said the wild elk damaged their property. They had bought the property in 1996 from the Yukon Government. They sued the Yukon Government in negligence and in nuisance for compensation. In reasons written by Justice Charlesworth—a judge of the Nunavut Court of Justice sitting on a panel of the Yukon Court of Appeal—the Court found that the ranchers’ case should not be struck at an early stage merely because the claim is novel. In doing so it overturned the lower court’s decision that the claim was bound to fail.
The reasons are tightly written and cover a lot of legal ground such as meaning of the “plain and obvious” test for striking a claim; the fundamentals of claims in negligence and nuisance when it comes to protecting property rights; Crown immunity; a government’s duty of care to manage wildlife in a way that does not interfere with private property rights; and, elk behavior. There’s even a limitation period twist at the end. It’s a neat case that’s not too long a read at 15 pages printed. But for those with less time to read, we focus on one of the many interesting aspects of the case: the Court’s role in deciding whether a novel cause of action should fail for policy reasons.
Some observers might suggest that it is not the Court’s role to make policy decisions—on the grounds that policy is the domain of the legislature. But the law is clear that judges have the authority when evaluating a novel cause of action to prevent it from proceeding on policy grounds, even where the plaintiff can prove that a prima facie duty of care exists (establishing that a duty of care exists, and that it has been breached, are the fundamentals of a negligence claim).
One policy consideration that judges are to undertake when evaluating novel claims against the government is whether there is a conflict between the alleged novel private law duty and a duty to the public at large, such that recognizing the novel claim would “come at the expense of other important interests, of efficiency and finally at the expense of public confidence in the system as a whole”. Against that background, and on the heels of having commented that the ranchers “are suffering from government inaction to protect this ranch from known harms the government introduced”, the Court stated:
 In the case at bar, it must be plain and obvious the suggested overarching duty—to manage the environment and wildlife in a way that protects various interests—is in conflict with a duty to protect the Groves’ ranch from the elk. As stated in Fullowka:2
 … Of course, every exercise of discretion calls for weighing and balancing different considerations that do not all point in the same direction. But there is a difference between the need to exercise judgment and the existence of conflicting duties.
 It is not plain and obvious that repairing any conflict between the public interest and the Groves’ interests requires more than an exercise of judgment, or that it would engender serious negative policy consequences.
On this point the Court of Appeal overturned the motions judge, Yukon Chief Justice Duncan, who previously held:
 To allow the [ranch] to sue the [Ministry] for damages to their property as a result of conflicts with wild elk is to create a potential conflict with the duty owed to the public at large to manage the environment and wildlife in a way that balances a number of different interests, including wildlife viewing, the preservation of biodiversity, and protection of the global ecosystem.
As is evident, the arguments are nuanced and complex, but ultimately the Court’s reasoning on this point comes down to a judgment call on whether broader public policy concerns outweigh otherwise legitimate private interests. Reasonable people can and do disagree, and I’d suggest this consideration is not entirely objective (judges are people too, who are inevitably influenced by the biases of their own experiences). But unless the legislature specifically provides guidance—such as legislating a private law duty of care—that judgment call is the role of our courts in developing the common law. And indeed the Courts have the flexibility to do so—albeit on a case by case basis. As recently reiterated by the Supreme Court of Canada (SCC) in Nevsun,3 when commenting on the meaning of the “plain and obvious” test for striking an unmeritorious action, “Only in this way can we be sure that the common law … will continue to meet the legal challenges that arise in our modern industrial society”.
It will be interesting to see where the case goes, and whether the Yukon Government will be successful in its argument that there is no legal obligation to compensate the plaintiffs for property damage because it owes no legal duty to them. Or, perhaps, if the Yukon Government doesn’t appeal to the SCC—or if the SCC decides not to hear the case or dismisses it—the parties might settle (as so many cases do) and we will never learn the legal outcome of this novel cause of action involving elk—at least not likely in the Takhini River Valley.
2. This is a reference to another important case out of the North, Fullowka v. Pinkerton’s of Canada Ltd., 2010 SCC 5. That case deals with the legal aftermath of the Giant Mine murders in Yellowknife in 1992, a tragedy that was still unfolding in the courts 20 years after the fact. In that case, the SCC denied claims by the miners’ survivors against the mine owner Royal Oak, Pinkerton’s security firm, and the Government of the Northwest Territories for negligently failing to prevent the murders.
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