2274659 Ontario Inc. v. Canada Chrome Corp. et al., (2016) 345 O.A.C. 150 (CA)

• Judge: Strathy, C.J.O., LaForme and Huscroft, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: November 25, 2015
• Jurisdiction: Ontario
• Citations: (2016), 345 O.A.C. 150 (CA);2016 ONCA 145

2274659 Ont. v. Can. Chrome Corp. (2016), 345 O.A.C. 150 (CA)

MLB headnote and full text

Temp. Cite: [2016] O.A.C. TBEd. FE.029

2274659 Ontario Inc. (applicant/respondent) v. Canada Chrome Corporation (respondent/appellant) and Minister of Northern Development and Mines (intervenor)

(C59945; 2016 ONCA 145)

Indexed As: 2274659 Ontario Inc. v. Canada Chrome Corp. et al.

Ontario Court of Appeal

Strathy, C.J.O., LaForme and Huscroft, JJ.A.

February 24, 2016.

Summary:

2274659 Ontario Ltd. ("Cliffs") sought an easement over certain Crown lands in order to build a road to service a proposed mine. Canada Chrome Corporation (CCC) held unpatented mining claims in the lands, and wanted to build a railway in the same transportation corridor in order to develop its own mineral deposits in that area. Cliffs requested an order under s. 51 of the Mining Act that would dispense with the consent of CCC to grant the easement. The Mining and Lands Commissioner dismissed the request. Cliffs appealed.

The Ontario Divisional Court, in a decision reported at (2014), 324 O.A.C. 116, allowed the appeal, set aside the decision of the Commissioner, and granted the application to dispense with the consent of CCC. CCC appealed.

The Ontario Court of Appeal dismissed the appeal.

Administrative Law - Topic 6245

Judicial review - Statutory appeals - Remedies on appeal - Granting of original application in lieu of new hearing - [See Mines and Minerals - Topic 7046 ].

Mines and Minerals - Topic 7

General - "Mine" defined - [See second Mines and Minerals - Topic 23 ].

Mines and Minerals - Topic 23

General - Surface rights legislation - Land use legislation - Application of - 2274659 Ontario Ltd. ("Cliffs") sought an easement over certain Crown lands in order to build a road to service a proposed mine - Canada Chrome Corporation (CCC) held unpatented mining claims in the lands, and wanted to build a railway in the same transportation corridor in order to develop its own mineral deposits in that area - Cliffs sought an order that would dispense with the consent of CCC to grant the easement - It argued that s. 50(2) of the Mining Act applied to limit CCC's rights, because using the surface for a railway to another deposit was not a permitted use of the surface rights as the activity was not related to exploration or development of the minerals on the claim - The Mining and Lands Commissioner (MLC) rejected this argument and denied Cliffs' request - The MLC concluded that s. 50(2) only applied to mining claims where the surface rights were privately held - If the surface rights were held by the Crown, then s. 51(1) applied and conferred broader surface rights to unpatented mining claim holders - The Divisional Court allowed Cliffs' appeal, stating "The MLC's interpretation of ss. 50 and 51 is not consistent with the words of the Act, the scheme of the legislation or the intention of the Legislature, and, indeed it seriously undermines the multiple use principle. ... [T]he source of the mining claim holder's rights to use the surface is found in s. 50(2). Subsection 51(1) ... gives priority to an unpatented mining claim holder to use the surface rights recognized in s. 50(2) in relation to subsequent users." - Section 50(2) applied to unpatented mining claims on Crown land - The Ontario Court of Appeal dismissed CCC's appeal - The Divisional Court's interpretation of ss. 50(2) and 51(1) was the only reasonable interpretation of those sections - See paragraphs 50 to 56.

Mines and Minerals - Topic 23

General - Surface rights legislation - Land use legislation - Application of - 2274659 Ontario Ltd. ("Cliffs") sought an easement over certain Crown lands in order to build a road to service a proposed mine - Canada Chrome Corporation (CCC) held unpatented mining claims in the lands, and wanted to build a railway in the same transportation corridor in order to develop its own mineral deposits in that area - Cliffs sought an order under s. 51 of the Mining Act that would dispense with the consent of CCC to grant the easement - The Mining and Lands Commissioner (MLC) denied Cliffs' request - Cliffs appealed, arguing that the MLC erred in law in not requiring CCC to provide positive evidence of interference with its surface rights - The Divisional Court allowed the appeal - CCC had to show an interference with its efforts to explore and develop the minerals and mineral rights on the mining claims - CCC's proposed railway was not planned in order to develop the subject mining claims, but rather to provide a transportation route to allow possible development of a deposit far to the north and not included in the subject claims - Thus, the railway was not a use for which CCC could claim priority under s. 51(1) - The Ontario Court of Appeal dismissed CCC's appeal - The Divisional Court was correct - The only reasonable interpretation of the Act was to read it as meaning that a proposed railway was not a "mine" - "The surface rights of the holder are limited to the parts necessary for prospecting, exploration and mining 'therein' - that is, in the claims themselves, not in claims at a distant location." - See paragraphs 58 to 62.

Mines and Minerals - Topic 23

General - Surface rights legislation - Land use legislation - Application of - 2274659 Ontario Ltd. ("Cliffs") sought an easement over certain Crown lands in order to build a road to service a proposed mine - Canada Chrome Corporation (CCC) held unpatented mining claims in the lands, and wanted to build a railway in the same transportation corridor in order to develop its own mineral deposits in that area - Cliffs sought an order under s. 51 of the Mining Act that would dispense with the consent of CCC to grant the easement - The Mining and Lands Commissioner (MLC) denied Cliffs' request - The Divisional Court allowed Cliff's appeal - The MLC's decision was unreasonable because, inter alia, there was no evidence that the proposed easement would interfere with CCC's exploration or mining of its claims - The Ontario Court of Appeal dismissed CCC's appeal - The court rejected the argument that even though there was no evidence that CCC's claims contained minerals of any value, it should nevertheless be able to exercise a veto over the use of the surface by others because it might someday discover minerals on its claims - See paragraphs 63 to 68.

Mines and Minerals - Topic 7046

Regulation - Mining recorder, inspector, commissioner or adjudication board - Judicial review or appeal - 2274659 Ontario Ltd. ("Cliffs") sought an easement over certain Crown lands in order to build a road to service a proposed mine - Canada Chrome Corporation (CCC) held unpatented mining claims in the lands, and wanted to build a railway in the same transportation corridor in order to develop its own mineral deposits in that area - Cliffs requested an order under s. 51 of the Mining Act that would dispense with the consent of CCC to grant the easement - The Mining and Lands Commissioner (MLC) denied Cliffs' request - The Divisional Court allowed Cliffs' appeal, finding that the MLC's decision was unreasonable - While the usual remedy was to remit the matter for reconsideration by the MLC, this was an appropriate case for the court to substitute its own decision for that of the MLC - First, given the MLC's comments and the frustration it expressed with Cliffs, fairness required that the matter proceed before a differently constituted panel - However, the MLC was composed of only three members, and two of them participated in the present matter - Second, the task of the MLC was to determine whether the proposed easement would interfere with the mining activities on CCC's claims to such a degree that multiple uses of the lands were not possible - CCC had not provided any evidence to show such interference - Therefore, the only reasonable decision was to dispense with the consent of CCC - The Ontario Court of Appeal held that the Divisional Court applied the correct legal principles and did not commit any palpable and overriding errors in this aspect of its decision - See paragraphs 69 to 75.

Cases Noticed:

Ontario (Minister of Transportation) v. 1520658 Ontario Inc. (2011), 279 O.A.C. 323; 105 O.R.(3d) 321; 2011 ONCA 373, refd to. [para. 44].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 45].

McLean v. British Columbia Securities Commission, [2013] 3 S.C.R. 895; 452 N.R. 340; 347 B.C.A.C. 1; 593 W.A.C. 1; 2013 SCC 67, refd to. [para. 47].

Canada (Canadian Human Rights Commission) v. Canada (A.G.) - see Canada (Attorney General) v. Mowat.

Canada (Attorney General) v. Mowat, [2011] 3 S.C.R. 471; 422 N.R. 248; 2011 SCC 53, refd to. [para. 68].

Information Commissioner (Can.) v. Canada (Minister of National Defence), [2011] 2 S.C.R. 306; 416 N.R. 105; 2011 SCC 25, refd to. [para. 48].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 48].

Telus Communications Inc. v. Telecommunications Workers Union (2014), 575 A.R. 325; 612 W.A.C. 325; 2014 ABCA 199, refd to. [para. 49].

Stetler et al. v. Agriculture, Food and Rural Affairs Appeal Tribunal (Ont.) et al. (2009), 247 O.A.C. 338; 311 D.L.R.(4th) 109; 2009 ONCA 234, refd to. [para. 99].

Giguère v. Chambre des notaires du Québec, [2004] 1 S.C.R. 3; 315 N.R. 346; 2004 SCC 1, refd to. [para. 71].

Statutes Noticed:

Mining Act, R.S.O. 1990, c. M-14, sect. 1 [para. 58]; sect. 50(2) [para. 15]; sect. 51(1) [para. 17].

Counsel:

Neal Smitheman, for the appellant;

Paul Schabas, Robin Linley and Iris Antonios, for the respondent;

John Kelly and Michael Burke, for the intervener.

This appeal was heard on November 25, 2015, before Strathy, C.J.O., LaForme and Huscroft, JJ.A., of the Ontario Court of Appeal. Strathy, C.J.O., delivered the following judgment for the court on February 24, 2016.