Justice Earl Johnson has reserved his decision on the city's appeal of a small claims court judgment over Takhini North infrastructure.

The Nunavut Supreme Court judge handling the case spent Thursday morning hearing arguments from city lawyer Andre Roothman.

Roothman argued small claims court does not have the jurisdiction to hear the matter. His words were countered by Patricia Cunning's lawyer, Ron Cherkewich, of Saskatchewan.

Cunning is seeking the highest amount small claims court can award in her case against the city.

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.

At the same time she filed her small claims court action last year, Cunning filed an action in Yukon Supreme Court making the same arguments.

Judge John Faulkner ordered Cunning to choose which case to proceed with. She opted to move forward with the small claims case.

The city then came forward with its argument that it couldn't, in fact, be heard at that level because the matter is outside the lower court's jurisdiction.

In his Jan. 23 decision, Faulkner ruled in Cunning's favour, stating it could be heard at that level.

The city then filed its appeal, heard Thursday, with Yukon Supreme Court.

Small claims court can't deal with the case, Roothman argued, because the matter affects the land title. The lawyer spent much of his time pointing to references to the easement agreement on the Takhini North property that allows access to utilities.

"Much revolves around that easement agreement," he said.

Under the territory's Small Claims Court Act, issues of land title can't be dealt with in the lower court, Roothman said.

The contents of the easement agreement fall clearly within the definition of easement and the definition of land, and as such deal with an interest in land, he argued.

It brings into question the duties of future property owners, he continued.

"That is a crucial question in this (case)," he said, noting that there's no way litigation can be absolved without dealing with the implications of the easement agreement.

While Johnson pointed out the case's outcome won't impact who owns the land, Roothman replied that the case, does indeed, affect the title because it deals with the obligations of owners.

He went on to cite previous court cases in making his arguments.

It wasn't until after the initial ruling and Cunning's decision to pursue the matter through Small Claims Court court that the city began looking more specifically at the matter and realized it was outside the jurisdiction of the court.

Prior to that, the focus of the case was on the fact Cunning was pursuing the matter in two different courts.

"That was the main focus at that time," Roothman told Johnson.

At the end of the day, he continued, the issue is not a normal small claims case in the time it will consume and resources it will tie up and that also changes its circumstances, he said.

But Cherkewich argued that a document filed on the case by Roothman on Tuesday disposes of the jurisdictional issue, naming third parties involved in the case, including the developers' numbered company.

Roothman objected to Cherkewich's argument, noting the latest documents filed were done so because there has been no stay on the matter, pending the outcome of the appeal.

A date of April 14 was set for third party documents to be filed on the main case, Roothman explained.

"We had no choice," he said, continuing to argue that to use those documents for the appeal was "highly inappropriate." The city, he said, was ordered to file the documents in case the matter went ahead.

Cherkewich replied the documents are part of the reply and therefore can be used in the argument on jurisdiction.

"It's now a moot issue," he said of the matter.

While he argued jurisdiction is no longer an issue, he also noted that it does not affect land title, but rather is a question of who pays for the work to be done.

It's comparable to a case of a home buyer who sees changes to wall plaques from the last time they inspect a house before the purchase to when they move in. In that case, title wouldn't be in question, but rather who pays for the wall plaques.

The matter affects the land, but there's no challenge on the interest in land, he said.

The Saskatchewan lawyer also went on to counter Roothman's arguments against $1,000 in costs being awarded to Cunning.

Roothman noted in his arguments on the costs that there's been no indication on why Rick Buchan is no longer the lawyer on record for Cunning.

Cherkewich showed up only after Buchan was unable to attend a court date, but there was no reason given for why he wasn't there.

Roothman said he takes no issue with Cherkewich being retained as the lawyer for Cunning.

Cherkewich, he pointed out, is also listed as the lawyer on the Supreme Court case more than 70 Takhini North residents, including Cherkewich's daughter, are involved with.

Roothman argued that travel expenses should not be awarded without some sort of evidence before the court that a local lawyer could not be obtained.

Cherkewich said he became involved after Buchan couldn't make a court date. He was also asked to step in on another motion on the matter and then told to run with it.

He pointed out that with the issue of jurisdiction no longer being a live issue, he likely would have either attended yesterday's matter by phone or had a representative attend if he had known earlier he would mainly be dealing with costs.

He also noted the numerous references made to the conflict many in the local legal community face in the matter.

The developers involved are lawyers, while others would have been lawyers for purchasers and realtors, it's been noted.