Ross v. Ross Mining Ltd. et al., (2012) 325 B.C.A.C. 64 (YukCA)

• Judge: Tysoe, Groberman and Hinkson, JJ.A.
• Court: Court of Appeal (Yukon Territory)
• Case Date: June 07, 2012
• Jurisdiction: Yukon
• Citations: (2012), 325 B.C.A.C. 64 (YukCA);2012 YKCA 8

Ross v. Ross Mining Ltd. (2012), 325 B.C.A.C. 64 (YukCA);

    553 W.A.C. 64

MLB headnote and full text

Temp. Cite: [2012] B.C.A.C. TBEd. JL.009

Golden Hill Ventures Limited Partnership (appellant/petitioner) v. Ross Mining Limited, MacKenzie Petroleums Ltd. and Norman Ross (respondents/respondents)

Norman Ross (respondent/plaintiff) v. Ross Mining Limited and MacKenzie Petroleums Ltd. (respondents/defendants) and Golden Hill Ventures Limited Partnership (appellant/defendant)

(11-YU690; 2012 YKCA 8)

Indexed As: Ross v. Ross Mining Ltd. et al.

Yukon Court of Appeal

Tysoe, Groberman and Hinkson, JJ.A.

June 29, 2012.

Summary:

Golden Hill Ventures Ltd. Partnership appealed an order discharging and vacating the claim of lien filed by Golden against a mining property owned by Ross Mining Ltd.

The Yukon Court of Appeal dismissed the appeal.

Liens - Topic 8561

Miners lien - Enforcement - General - Golden Hill Ventures Ltd. Partnership appealed an order discharging and vacating the claim of lien filed by Golden against a mining property owned by Ross Mining Ltd. - The order was made in two proceedings - The first was an action by Ross, the former owner of the shares in Ross Mining, to enforce security given by Ross Mining against its assets to secure the payment of a portion of the purchase price payable to Ross for the sale of his shares in Ross Mining - The second was a proceeding commenced by Golden for a declaration that it held a valid lien against the mine pursuant to the Miners Lien Act in priority to the security held by Ross - The Yukon Court of Appeal dismissed the appeal - Golden was not entitled to a lien against the mine because the trial judge found that all of the monies owing by Ross Mining to Golden in its claim of lien were loans under a consolidated loan agreement - A person had a lien under the Act if the person provided services or materials to a mine - It was conceded by Golden that a person who lent money to an owner of a mine did not thereby provide a service or material to the mine and was not entitled to a lien under the Act in respect of the borrowed monies - It had not been demonstrated that the trial judge made a palpable and overriding error.

Cases Noticed:

Big Creek Construction Ltd. v. York-Trillium Development Group Ltd. (1993), 8 C.L.R.(2d) 138 (Ont. Gen. Div.), refd to. [para. 3].

Counsel:

M.B. Morgan, for the appellant;

M.J. Leitch, for the respondent, Norman Ross;

J. Barrett, for the respondent, MacKenzie Petroleums Ltd.

This appeal was heard at Whitehorse, Yukon, on June 7, 2012, by Tysoe, Groberman and Hinkson, JJ.A., of the Yukon Court of Appeal. The following judgment of the Court of Appeal was delivered by Tysoe, J.A., at Vancouver, British Columbia, on June 29, 2012.