Visiting Yukon Supreme Court Judge Earl Johnson has confirmed an earlier small claims court judgment of territorial court Judge John Faulkner which found Patricia Cunning's case against the city could be heard in small claims court.

"Obviously, my client's reaction is very positive," Ron Cherkewich, Cunning's lawyer, said in an interview Wednesday. Johnson released his 24-page written decision Tuesday.

Cunning, a Takhini North resident, is suing the city for the largest amount that can be awarded in small claims court - $25,000 - over issues around the infrastructure in the neighbourhood.

She argues the city was negligent and in breach of its duties when it permitted the developers of Takhini North to transfer the responsibility of upgrading the water and sewer system to new owners.

The developers originally bought the lots from the federal government, then sold them to individuals.

Property owners are now set to pay a local improvement charge for the upgrades being made to the water and sewer system. They must also each pay for upgrades in their own home to connect to the system.

A decision by Faulkner in 2008 forced Cunning to choose between her small claims court case and a similar case she and 73 other property owners filed on the matter in Yukon Supreme Court.

She opted to move ahead with the small claims court matter. The city's lawyer, Andre Roothman, then argued the court couldn't hear the case.

When Faulkner ruled against the city, its lawyer moved forward with the appeal. Johnson listened to appeal arguments in April.

Not only is Tuesday's decision correct, well thought-out and meets the expectations of Cunning and other Takhini North residents - backing up the original decision by Faulkner - but it also takes the reasoning further, Cherkewich said.

Throughout the decision, Johnson cited numerous other cases on Roothman's argument that small claims court can't hear the matter because it is an issue over the interest in land.

Two previous court cases show that deals with title, the judge noted.

"Both Chilliwack and Lou Guidi (the two cases) demonstrate a pragmatic approach focused on the nature of the relief claimed," Johnson wrote.

"I believe both judges recognized that the intention of the legislature was to remove the jurisdiction of the small claims court the analysis and interpretation of the myriad and complex rules surrounding title to land under English common law. However, they were also aware of the purpose of the small claims rules and the need to respect the choice of the plaintiff."

While Cunning's case will likely deal with easement agreements of the property, that will likely "only be in the context of what the appellant (the city) ought to have done as a prudent municipality.

"As a result, I am satisfied that the trial judge came to the correct conclusion on his jurisdiction and I deny the appeal on this ground."

Roothman also took issue with Faulkner awarding costs of $1,000 plus Cherkewich's travel expenses, to Cunning. He argued the judge erred in holding there were special circumstances that triggered a higher award of costs.

Roothman also argued travel costs for the Saskatchewan lawyer should not have been awarded either, using case law to back up his arguments.

"The actions of the appellant caused the respondent significant added costs and delay that gave the trial judge enough grounds for an award based on special circumstances," notes the decision.

"The 'special circumstances' contemplated in the Regulation clothe the disapproval of the actions of one of the parties by awarding the other party increased costs.

"One option is to award the equivalent of solicitor-client costs. However, courts only use this option to sanction outrageous or high-handed conduct and rarely use it.

It is more common for a court to increase party-party costs."

Johnson then goes on to cite further case law and notes there is no requirement to file affidavits on the availability of local expertise, as Roothman argued in his discussion on the travel costs, should be done to show no local lawyer could be found to deal with the case.

"Accordingly, I deny the appeal on this ground," Johnson wrote before awarding Cunning a lump sum of $2,500.

Cherkewich said Wednesday this most recent decision "screams" for the matter to be dealt with.

All anyone has to do is drive to the neighbourhood and see the work being done now overhauling the water and sewer system to know it's work that should've been done nine years ago.

"The city's got a really embarrassing situation," he said, pointing out that the infrastructure work was done to four other subdivisions that were developed in a similar manner.

In those four other subdivisions though, the properties sold for around the same price as Takhini North properties without a local improvement charge being put in place for residents years later because work that should've been done wasn't, he argued.

While Cherkewich commented the city seems to be trying to stall the case, he added, "These people aren't going away."

Roothman said he had yet to review the decision in full detail, and will await instructions from his clients before proceeding.

He didn't rule out the possibility of a further appeal of Johnson's decision, which would be handled by the B.C./Yukon Court of Appeal.

"I leave it up to the city to decide on that," he said.