Whitehorse Daily Star

Pair’s possessions must be returned: court

Two Kluane First Nations (KFN) citizens are evicted from the houses they had lived in before receiving a court sentence banning them from their community of Burwash Landing for 18 months.

By Stephanie Waddell on July 6, 2015

Two Kluane First Nations (KFN) citizens are evicted from the houses they had lived in before receiving a court sentence banning them from their community of Burwash Landing for 18 months.

Territorial court judge Peter Chisholm handed down the ruling Friday afternoon in Whitehorse.

In delivering the 13-page decision, Chisholm also ruled the First Nation must return from the houses the personal belongings of brothers Derek Johnson and Wilfred Sheldon.

The houses are located on KFN settlement land in Burwash Landing.

The First Nation argued the houses were abandoned, with Johnson and Sheldon under the court orders not to be in the community for 18 months, part of sentences they received for the 2013 unlawful confinement of Collin Johnson.

Friday’s decision focused on the territory’s Landlord and Tenant Act after Chisholm reviewed the history the two men had with the homes.

“In 2006 and 2009, respectively, Mr. Johnson and Mr. Sheldon applied for housing from their First Nation,” he said.

“No formal agreement was entered in either case. In each case, a housing application form was filled out and submitted to KFN and in each case, a section of the completed application form indicated a desire to pay to own their respective homes.

“Neither KFN nor Messrs. Johnson and Sheldon formally pursued such an arrangement. As with other KFN citizens, KFN did not request that Messrs. Johnson and Sheldon pay rent.”

In court, Johnson noted he was involved in the design of the house he lived in and paid a $2,500 deposit on the home.

Sheldon argued he had made “significant improvements” to the house he lived in.

It was the KFN, however, that borrowed the money to pay for building the homes and makes the monthly payments on the mortgages as well as for the insurance on the houses.

Johnson and Sheldon have been responsible for paying for utilities, including water and sewer services, and electricity.

Chisholm first looked at whether the territorial court has jurisdiction to deal with the matter. He ruled that given that the KFN has not enacted its own laws (though it does have policy) around tenancy, the territorial act applies.

He also found the two men were tenants in the houses owned by the KFN and not owners, having not pursued ownership beyond making an initial application. No sales agreement was ever pursued.

While a residential tenancy agreement was also never completed or pursued by either man or the First Nation, Chisholm ruled there was a landlord and tenant relationship.

“In order for a tenancy at will to exist, there must be an express or implied agreement between the parties that the tenancy is determinable at the will of either party,” Chisholm said.

He cited a number of other court cases in determining “... the relationship between KFN and Messrs. Johnson and Sheldon, respectively, defaulted to that of landlord and tenant.

“In my view, a tenancy at will does exist with respect to the respective premises.”

The judge sided with Johnson and Sheldon in their argument that they had not abandoned their houses given the court orders.

He argued it was “disingenuous” of the First Nation to suggest the properties had been abandoned, given that chief and council had written to the Crown before they were sentenced, “effectively indicating that a form of banishment from the community would be appropriate for both individuals.”

Having ruled that there was a landlord and tenant relationship between the First Nation and two men, Chisholm stated an applicable notice period was required for the KFN to terminate the tenancy.

“KFN argues that a tenancy at will allows either party to terminate at its pleasure as long as the notice provisions of the (Landlord and Tenant Act) are respected,” he said.

The judge went on to find that given the circumstances, the tenancies to be equivalent to yearly tenancies.

“The appropriate notice is therefore 90 days,” Chisholm stated.

“KFN provided notice to the respective tenants by way of registered mail on March 3, 2015. The 90-day notice period commenced on that date and ran until June 1, 2015. The respective tenancies are terminated as of that date.”

The judge then stated the First Nation is therefore granted possession of the houses while Johnson and Sheldon are entitled to having their personal belongings that are inside the homes returned.

“If there is no negotiated return of the said personal property, the matter may be brought back before this court for resolution,” Chisholm said.

He acknowledged Johnson’s statement that he had paid a $2,500 deposit on the house he lived in.

As Chisholm noted though, no formal claim on that has been filed with the court and no documentation on it provided.

“If he is unable to negotiate a settlement with KFN with respect to this deposit, he may pursue the avenues available to him for recovery of this amount,” the judge stated.

“Regarding the improvements claimed by Mr. Sheldon with respect to the home and property in issue: there is no formal claim filed with the court; there has been no documentary evidence led and the amount in question exceeds the jurisdiction of this court under the Small Claims Court Act, RSY 2002, c.204.

“Mr. Sheldon is at liberty to pursue the options available to him to recover the amounts he says are owed to him.”

Comments (2)

Up 42 Down 19

Mark on Jul 6, 2015 at 4:51 pm

So the solution ( when the circle thing doesn't work) is to banish citizen from their community so someone else can deal with them... What's up with that.? There's a few bad guys in Whitehorse we should ban and send to Burwash...

Up 43 Down 6

Thomas Brewer on Jul 6, 2015 at 4:14 pm

These two sound like despicable people. Incredible that one was the chief at one point.

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