Yukon appeal court overturns decision to toss out lawsuit over Takhini elk herd

A lawsuit over the Takhini elk herd has been given a second chance. 

A panel of Yukon Court of Appeal judges, in a ruling Sept. 15, overturned a lower court decision striking a statement of claim filed by ranchers Wayne and Alison Grove.

The Groves, who run the El Dorado ranch in the Takhini Valley northwest of Whitehorse, sued the territorial government in 2020 over damage done to their property by wild elk, which the government introduced to the area in the 1950s. 

Their lawsuit alleges, among other things, that the government has been negligent in allowing the Takhini elk herd to grow beyond the size and range laid out in management plans, resulting in the animals destroying the Groves's fields and fences, eating their crops and interfering with their farmed elk. 

The Yukon government filed an application asking that the Groves's statement of claim be tossed, arguing that it owed no private-law duty of care to the couple and that by extension, the Groves had no grounds for their legal action. 

Yukon Supreme Court Chief Justice Suzanne Duncan, in a decision issued last year, agreed, writing that it was "plain and obvious" the statement of claim had "no reasonable prospect of success."

The Groves appealed. 

Yukon Court of Appeal Chief Justice Robert Bauman, backed by Justices Richard Goepel and Susan Charlesworth, found that the "potentially unmeritorious nature of the claim is anything but plain and obvious." 

He pointed to the "complex and competing arguments" of lawyers for both sides on issues such as whether there was a sufficient relationship between the Groves and the government for a duty of care to arise, and how seriously the wild elk had interfered with the Groves's use and enjoyment of their land.

"The judge, in determining the motion to strike application, was limited to deciding whether the claim, as pled, was bound to fail," Bauman wrote. 

He added that while it might be ultimately true that the government owes no duty of care to the Groves, "we must leave such a conclusion to the trial judge." 

"Here, the judge erred by concluding it was plain and obvious the ministry owed no duty of care to the Groves and consequently their statement of claim had no reasonable prospect of success," he wrote. 

The appeal court judges set aside Duncan's decision and dismissed the Yukon government's application to have the lawsuit struck. They also ruled that the Groves were entitled to the cost of legal fees for the appeal and application. 

A trial date for the lawsuit has not been set yet.