Executive Summary: Key Legal and Evidentiary Issues

• The City of Whitehorse brought a third civil contempt application against Annie Lake Trucking for breaching a March 22, 2022, consent order and a January 6, 2025, contempt order concerning City-owned land near Ear Lake.
   
• Affidavits from City land development supervisor Kinden Kosick, with photographs from each site inspection, documented ongoing gravel removal, remaining refuse and equipment, and occupied vehicles on the land.
   
• Each of the three elements of civil contempt set out in Carey v Laiken, 2015 SCC 17, was proved beyond a reasonable doubt: a clear order, actual knowledge, and intentional non-compliance.
   
• Rule 59(3) of the Supreme Court of Yukon Rules of Court, which addresses corporations and their directors or officers, was interpreted to extend to partners in a partnership.
   
• Imprisonment was found necessary because the partners engaged in repeated and unrepentant acts of contempt, showed no remorse, and set their own timelines instead of meeting court-ordered deadlines.
   
• Chief Justice Duncan reduced the City's requested seven days' imprisonment to five days in recognition of some progress in clearing the land.
   

Facts of the case

Annie Lake Trucking is a registered partnership whose three partners are Trevor Hunziker, Richard Hunziker, and Charlene Armstrong. Beginning in November 2008, it leased City of Whitehorse land near Ear Lake. The lease gave it the exclusive right to excavate and remove gravel, sand, stone and associated products, and to crush, quarry, and produce concrete from a concrete plant on the land. After the original lease expired, the partnership remained a legal monthly lessee from December 2016 until the City terminated the lease on 30 days' notice, effective August 23, 2021. A new Official Community Plan (OCP) that did not permit excavation or quarrying on the land was the primary reason for the termination.

Quarrying continued despite repeated notices from the City to cease and vacate. On October 28, 2021, the City filed a statement of claim alleging breach of the lease and unlawful trespass, and applied for an interim injunction. Discussions between counsel led to a consent order signed by the City and by counsel for Annie Lake Trucking, entered on March 22, 2022.

City inspections in July and August 2022 revealed ongoing quarrying and excavation, along with equipment, materials, and residential trailers still on the land. No one from the defendant attended the first contempt hearing, despite proper service. On October 13, 2022, the Supreme Court of Yukon found Annie Lake Trucking in contempt, fined each partner $2,500, and awarded special costs to the City. After clarification, it also ordered RCMP enforcement of the consent order. As of the hearing of the second contempt application, the fines and special costs remained unpaid, and the RCMP had not enforced the order.

Between October 2022 and April 2024, Doug Spencer, the City Manager of Land and Building Services, and other City staff inspected the land regularly. They observed continued commercial quarrying, stored equipment and material, and mobile homes occupied by Trevor Hunziker and by John Duell, a caretaker. At a June 23, 2023, meeting, the Hunzikers confirmed the quarrying was continuing. They also provided a letter from Charlene Armstrong stating that 2,350 cubic metres of material had been removed in 2022. City staff attended the land with the RCMP on October 13, 2023. During that visit, Trevor Hunziker evaded notice by the RCMP and confronted staff with expletives and abusive comments, and the RCMP took no enforcement action. A March 26, 2024, inspection found new piles of gravel and other newly extracted material.

Richard Hunziker appeared on behalf of the defendant at the December 19, 2024, hearing of the City's second contempt application, without having filed any materials. He argued the partners had been forced unfairly into the consent order, asked for more time, and pleaded financial hardship. He did not deny that quarrying continued or that John Duell and Trevor Hunziker still lived on the land.

After the January 6, 2025, decision, the City inspected the land on May 15, 2025; July 4, 2025; October 7, 2025; March 16, 2026; July 9, 2026; and July 31, 2026. Staff noted:

• stored equipment, vehicles, materials, and refuse
• evidence of active and ongoing quarrying, including an excavator and other extraction equipment
• physical evidence that a significant amount of gravel had been extracted since the 2024 inspection
• a recreational vehicle and one or more school buses that appeared to be occupied

In July 2026, Richard Hunziker was seen with a loader and two dump trucks removing gravel material. On July 9, he told City employees he had a deadline of August 15 to remove his belongings. The land development supervisor told him he could not remove gravel, but he continued removing materials as City personnel left.

On November 26, 2025, the Hunzikers filed a response to the third application. They agreed that the October 2022 fines remained unpaid but objected to the other relief sought. They wrote that affidavits would follow, but none were filed. Richard and Trevor Hunziker appeared without counsel at the August 14, 2026, hearing.

Trevor Hunziker described the steps taken to relocate their operations. These included dismantling the shop, obtaining a permit to relocate it, engaging a contractor to move and reassemble it at a new location, and applying for a permit to relocate the mobile home trailer. The Court noted it was not clear at that time whether an application had been made and a permit obtained. He confirmed that the shop, a trailer, and other structures and equipment were gone, and that he no longer lived on the land. John Duell had also left. Trevor Hunziker admitted that garbage, refuse, other materials, and equipment that is difficult to move (five to six pieces) remained on the land. Excavated sand and gravel also remained, which the Hunzikers said had been excavated 10 years earlier with royalties paid. Trevor Hunziker also said that two people he did not know were living in the school bus and in a camper/recreational vehicle, and had not complied with his requests to leave. Both brothers said they needed another year to finish leaving the site.

Policy and legislative provisions at issue

Under the consent order, the lease was confirmed as terminated. Annie Lake Trucking was restrained and enjoined from further commercial activities on the land, including quarrying or excavation. The partnership agreed to make best efforts to remove any subtenants, sublicensees, or others invited onto the land. It also agreed to fully vacate the land by June 30, 2022, removing residential tenants, equipment, buildings, structures, chattels, refuse, and materials. [Note: the 2026 decision describes the consent order as requiring immediate removal of all items and materials stored or kept on the land, with residential use to end by June 30, 2022. The 2025 decision describes June 30, 2022, as the deadline to fully vacate. The 2026 decision elsewhere refers to June 30, 2022, as the consent order deadline.] The partnership further agreed to pay the City any royalty and rehabilitation fees on material extracted up to the date of the consent order.

The January 2025 order required removal of all equipment, materials, structures, chattels, refuse, and mobile homes/trailers by June 30, 2025. If anything remained on the land as of July 1, 2025, each partner was ordered to pay a fine of $7,500, for a total of $22,500. This applied to anything belonging to Annie Lake Trucking, its partners, or anyone they invited onto the land, specifically including John Duell's mobile home and vehicles.

Contempt powers derive from the Court's inherent jurisdiction as a superior court and from Rule 59 of the Supreme Court of Yukon Rules of Court. Rule 59(2) provides that the power to punish contempt is exercised by imprisonment, a fine, or both. Rule 59(3) addresses a corporation that wilfully disobeys a court order: it allows a fine against the corporation and imprisonment or a fine against one or more of its directors or officers. Because Annie Lake Trucking is a partnership rather than a corporation, Chief Justice Duncan interpreted Rule 59(3) to extend to partners.

Reasoning and analysis

Civil contempt follows a two-stage test drawn from Carey v Laiken. At the first stage, three elements must be proved beyond a reasonable doubt:

• the order must clearly and unequivocally state what should and should not be done
• the alleged contemnor must have had actual knowledge of it, including inferred knowledge or wilful blindness
• the party must have intentionally done the prohibited act or failed to do the required act

Proof of an intention to breach the order is not required. Supporting evidence must meet trial admissibility rules, excluding hearsay, opinion, and conclusions. Any ambiguity in the order entitles the alleged contemnor to the most favourable construction (Peel Financial Holdings Ltd. v Western Delta Lands Partnership, 2003 BCCA 551). At the second stage, the court may decline a contempt finding where it may result in an injustice.

In the January 2025 decision, the first-stage elements were established through the consent order, affidavit evidence from Doug Spencer and other City staff, and Richard Hunziker's admissions. The order was clear about what was required and by when. On knowledge, Annie Lake Trucking's own lawyer filed the signed order and sent a filed copy to City counsel the day after it was signed. Richard Hunziker's request for more time also showed knowledge of the order's terms. His protest that the order was unfair came too late, since the partnership never sought to set it aside. Chief Justice Duncan also noted that Annie Lake Trucking had not taken part in the consultations leading to the amended OCP, applied for a zoning change, or negotiated another legal solution. Continued extraction of gravel without a lease, without rehabilitation or royalty fees, and without legal authority was described as at least unauthorized use of public resources that may arguably be considered theft.

On penalty, the Court applied factors from Health Care Corp of St John's v Newfoundland and Labrador Assn of Public and Private Employees, as adopted in Langford (City) v dos Reis, 2016 BCCA 460. These include the principle that imprisonment is normally inappropriate where there is no active public defiance and no repeated unrepentant acts of contempt. There was minimal evidence of public defiance, but the admitted and observed ongoing quarrying and the refusal to vacate confirmed repeated unrepentant acts. The apparent failure to pay the first fine was treated separately, as a continuation of the contempt of court. But for the City's forbearance in not requesting imprisonment, the Court stated it would have considered ordering it.

The Court reviewed earlier fines in similar cases:

• $1,000 in Gwich'in Development Corporation v Alliance Sonic Drilling Inc et al, 2009 YKSC 19
• a British Columbia range of $1,500 to $7,500
• a total of $3,000 in Spurvey v Melew, 2024 YKSC 30

The City sought an increase from $2,500 to $15,000 per partner but said its preferred outcome was compliance. Some effort was shown by Richard Hunziker's appearance, his willingness to proceed without an adjournment, and the heated shop being built at a nearby location. However, his request for two more years of quarrying repeated what he had written to the City two years earlier.

At the third hearing, the first-stage elements were again proved beyond a reasonable doubt. The Court relied on Kinden Kosick's affidavits dated November 14, 2025; April 1, 2026; and August 7, 2026. Knowledge was further confirmed by the Hunzikers' appearance at the August 14, 2026, hearing. Chief Justice Duncan found an intentional failure to comply: the partners knew of the June 30, 2022, and June 30, 2025, deadlines but set their own timelines. Although a contempt order is a last resort, a third order was issued. The City had shown forbearance by meeting with the Hunzikers, hearing their concerns, and giving extra time and notice. Meanwhile, the Hunzikers kept extracting gravel without a lease, delayed removing their materials, and treated City personnel disrespectfully.

The City abandoned its request for a further fine because the two earlier fine orders had not been complied with. It asked instead for seven days' imprisonment of each partner, submitting that committal was the only remaining avenue. The Court reviewed authorities on the purposes of contempt penalties, including enforcing compliance and maintaining respect for the courts (Vidéotron Ltée v Industries Microlec Produits Électroniques Inc., [1992] 2 SCR 1065; United Nurses of Alberta v Alberta (Attorney General), [1992] 1 SCR 901). It cited Larkin v Glase, 2009 BCCA 321, for the relevance of remorse to deterrence. It cited Law Society of BC v Dempsey, 2007 BCSC 442, for the principle that penalties short of incarceration must always be considered.

In mitigation, Chief Justice Duncan acknowledged how difficult it had been for the brothers to accept that the family business could no longer operate in the Ear Lake pit. Their late father, Bud Hunziker, had started the business almost 40 years ago. Some progress had also occurred since the last court appearance in January 2025, at a cost of time and money. Neither Trevor Hunziker nor John Duell lived on the land any longer.

Several factors weighed against the Hunzikers:

• The consent order had been agreed to through counsel and remained unmet four and a half years later, despite two contempt orders and the City's forbearance.
• Extraction for commercial use was continuing, much refuse, garbage, and equipment remained, and at least two people were living on the land.
• The Hunzikers had not apologized or shown remorse. They offered no reason for non-compliance other than the time and money involved and their upset at having to relocate the family business.
• They had neither advocated against the OCP amendment nor applied to set aside the consent order.

The Court held that they could not amend a court order unilaterally, noting their stated plan to take another year to move everything out. Almost 13 months had passed since the second order's deadline. Relying on Arnouse v August-Sjodin, 2020 BCSC 983, the Court found incarceration the only penalty reflecting the seriousness of the breaches. Five days was at the low end of the range cited in Transportaction Lease Systems Inc. v Virdi, 2009 BCSC 695, which runs from 13 days to four months.

Ruling and overall outcome

The City of Whitehorse succeeded on both contempt applications. In January 2025, the Court:

• declared that Annie Lake Trucking remained in contempt of the consent order
• kept the October 2022 fine of $7,500, divided equally among the three partners, payable to the Territorial treasurer
• left the RCMP enforcement order in place
• imposed the June 30, 2025, removal deadline with a conditional fine of $7,500 per partner
• preserved the City's right to seek imprisonment
• awarded the City special costs

On August 21, 2026, Chief Justice Duncan declared Annie Lake Trucking in contempt of both the consent order and the January 6, 2025, contempt order. The Court ordered five days' committal against Richard Hunziker and Trevor Hunziker. Both fines remain payable to the Territorial treasurer: the October 2022 fine of $7,500 in total, and the January 2025 fine of $7,500 per partner. All equipment, materials, structures, chattels, refuse, and mobile homes/trailers must be removed from the land by December 31, 2026.

At the Hunzikers' request, and with no great objection from City counsel, the start of the sentence was deferred one week. Both men are to report to the Whitehorse Correctional Centre at 5:00 p.m. on Friday, August 28. The City was again awarded special costs, but neither decision quantifies them. Because the fines are payable to the Territorial treasurer rather than to the City, no exact monetary amount awarded in the City's favour can be determined.