Guy A. Wainwright

The appellants challenged an order transferring a statutory appeal under the Mining Act from the Mining and Lands Commissioner to the Superior Court.

The court held that a transfer under s. 107 does not enlarge the Superior Court's jurisdiction beyond the scope of the underlying s. 112 appeal, which remains confined to issues under the Mining Act.

Complaints directed at the validity of aggregate permits issued under separate legislation were matters for judicial review, if available, rather than determination in the transferred proceeding.

The appeal was allowed, the transfer order set aside, and the matter remitted to the Commissioner.

The respondents to the motion sought to quash an appeal on the basis that an order transferring a statutory proceeding under the Mining Act to the Superior Court of Justice was interlocutory.

The Court of Appeal held that the transfer order finally disposed of the application brought under s. 107 of the Mining Act and was therefore a final order within s. 6(1)(b) of the Courts of Justice Act.

Applying the reasoning in Buck Bros. and the Hendrickson line of authority, the court concluded that the real matter in dispute in the court proceeding was whether the statutory proceeding should be transferred.

The motion to quash was dismissed with costs.