The Supreme Court of Yukon has denied Scott Westerlaken costs after his successful challenge to a tenancy decision, finding no exceptional circumstances justifying an award against the administrative decision-maker. Westerlaken v Yukon Residential Tenancies Office, 2026 YKSC 86.
The earlier roommate ruling
The litigation began after Byron Holbein paid to occupy a bedroom in a home Westerlaken rented and also occupied. After Holbein left in 2023, he sought compensation for insufficient notice and return of a security deposit. Westerlaken counterclaimed. The Residential Tenancies Office treated their arrangement as a landlord-tenant relationship and ruled for Holbein. Merits reasons, 2025 YKSC 7.
In its February 4, 2025 merits decision, the court held that Westerlaken was Holbein’s roommate, not his landlord under the former Residential Landlord and Tenant Act. The Director had incorrectly treated renting out a room as subletting the rental unit. The judge interpreted the former provision as addressing the whole unit. Nor did the evidence establish that Westerlaken acted for the property owner: there was no evidence the owner even knew about the arrangement. The court quashed the decision and held that the Small Claims Court had jurisdiction over this dispute.
Immunity and costs are separate questions
In Westerlaken v Yukon Residential Tenancies Office, 2026 YKSC 86, issued September 17, Justice E.M. Campbell rejected statutory immunity as a complete answer. The English provision covered damages proceedings; its narrower meaning was shared with the broader French version. Costs were incidental to judicial review.
The usual rule against costs for or against administrative decision-makers on judicial review remained applicable. Westerlaken sought special costs alleging misconduct and jurisdictional overreach. Campbell found no misconduct or improper advocacy: the Director conceded the error and stayed within court-ordered limits.
Allegations about later communications and registration of the decision were left to a separate civil claim. The judge did not decide whether costs of the RTO proceedings could also be awarded.
A changed legislative backdrop
Yukon’s replacement Residential Tenancies Act and regulations took effect on September 1, 2025. The territorial government’s transition guidance says disputes raised before that date, and disputes concerning tenancies that had already ended, remain governed by the former legislation. Government transition guidance.
Section 128 of the current Act protects the Director and other specified officials from damages proceedings concerning good-faith acts or omissions in performing, or intending to perform, statutory duties or powers. Its English wording expressly identifies damages proceedings. Section 134 separately provides for judicial review, with applications required within 30 days after the party receives the decision or order. These provisions distinguish the statutory protection of officials from the process for challenging a decision. Residential Tenancies Act, ss. 128, 134.
The current government fact sheet also describes renting out an entire unit or rooms as subletting, with the original tenant assuming many landlord responsibilities toward subtenants. It says the owner’s written consent is required. That updated guidance is important context: the earlier roommate ruling concerned the former statute and should be read within that legislative setting. Shared-accommodation fact sheet.