Neal J. Smitheman

The appellants sought to transfer a proceeding before the Mining and Lands Tribunal to the Ontario Superior Court of Justice.

The respondent had commenced the Tribunal proceeding under section 181(2) of the Mining Act to require the appellants to pay their share of expenditures for mining development.

The appellants argued that an alleged oral agreement absolved them of any obligation to contribute and that this contract matter should be adjudicated by the Superior Court as a preliminary issue.

The application judge refused the transfer.

On appeal, the Court of Appeal upheld the refusal to transfer, finding that the Tribunal had specialized expertise in mining matters and that section 181(4) of the Mining Act provided the appellants with a procedure to raise their oral agreement defence before the Tribunal.

The applicants sought to transfer an application from the Mining and Lands Tribunal to the Superior Court of Justice under s. 107 of the Mining Act, arguing the Tribunal lacked jurisdiction over patented mining claims and issues of private property and civil rights.

The respondent contended the Tribunal had exclusive or concurrent jurisdiction.

The court found that the Tribunal had at least concurrent jurisdiction, particularly regarding expenditures under s. 181 of the Mining Act, and that the issues fell squarely within the Tribunal's expertise.

The court dismissed the application to transfer the proceeding, emphasizing the Tribunal's specialized knowledge and efficient procedures for such matters.

The plaintiff staked unpatented mining claims on Crown land where the Ministry of Transportation (MTO) planned to build a realigned highway.

The plaintiff subsequently applied for aggregate permits, which were delayed and limited due to the highway construction.

The plaintiff brought an action claiming the MTO expropriated the property and sought compensation for the lost aggregate value.

The Superior Court of Justice dismissed the action, finding that an unpatented mining claim is not 'land' under the Expropriations Act.

The court further held that even if it were land, the claims had no value because the plaintiff could not have obtained an aggregate permit for the entire property, and the property was not wrongfully downzoned.

Two mining companies disputed access to chromite deposits in northern Ontario.

The respondent sought an easement over the appellant's unpatented mining claims to build a road.

The Mining and Lands Commissioner refused to dispense with the appellant's consent, interpreting the Mining Act as granting broad surface rights to unpatented claim holders on Crown land.

The Divisional Court overturned this, finding the interpretation unreasonable and dispensing with consent.

The Court of Appeal upheld the Divisional Court's decision, confirming that surface rights are limited to what is necessary for mining activities on the claims themselves, and there was no evidence the road would interfere with such activities.

The appellant sought an easement over Crown lands subject to unpatented mining claims held by the respondent to build a road to a proposed mine.

The respondent refused consent, intending to build a railway on the same corridor.

The Mining and Lands Commissioner (MLC) dismissed the appellant's application to dispense with consent.

On appeal, the Divisional Court found the MLC's decision unreasonable, as it misinterpreted the Mining Act by failing to apply the limitations on surface rights to unpatented claims on Crown land and improperly required the appellant to prove a public interest.

The Court substituted its own decision, dispensing with the respondent's consent, finding no evidence that the road would significantly interfere with actual or proposed mining activities on the claims.

The appellants achieved modest success on their appeal, successfully striking down a ban on signs under s. 2(b) of the Charter and certain prohibitions in a municipal by-law.

However, the respondent municipality was substantially successful overall.

The Court of Appeal awarded the respondent reduced costs of the appeal fixed at $25,000.

The court declined to interfere with the lower court's costs award of $350,000 for the injunction motion and by-law application, finding it fair and reasonable.

The appellants, representing the Haudenosaunee Development Institute, challenged two municipal by-laws passed by the City of Brantford to prohibit unauthorized interference with development and the imposition of unauthorized fees.

The appellants argued the by-laws were passed in bad faith, violated the open meeting requirements of the Municipal Act, 2001, infringed sections 2(b) and 15 of the Charter, and were ultra vires the province under section 91(24) of the Constitution Act, 1867.

The Court of Appeal dismissed most of the appeal, finding the by-laws were validly passed and did not target the Haudenosaunee.

However, the Court allowed the appeal in part, striking the words 'invite', 'request', and 'sign' from the by-laws as they unjustifiably limited freedom of expression under section 2(b) of the Charter.

The applicant municipality successfully obtained an interlocutory injunction to prevent the respondents from blockading various development sites and successfully defended a motion to quash its by-laws.

The applicant subsequently sought its costs of the proceedings.

The respondents argued they were public interest litigants and that costs should be in the cause or paid by the province.

The court rejected these arguments, finding the respondents' unlawful conduct necessitated the litigation and they were not acting in the public interest.

The court awarded the applicant costs fixed at $350,000, significantly reducing the $887,000 claimed due to duplication, excessive time, and the exclusion of costs for a court-ordered consultation process.

The appellant mining company appealed an interim injunction that halted its exploration activities and required consultation with the respondent First Nation.

Prior to the appeal, the Mining Amendment Act, 2009 came into force, establishing a new legislative regime for exploration plans and permits involving Aboriginal interests.

The Divisional Court declined to hear the appeal, finding it moot because the rights and obligations of the parties now rested on the new statutory foundation, rendering the propriety of the original injunction an academic exercise.

The appellant elevator maintenance contractor appealed convictions under the Technical Standards and Safety Act, 2000 and Ontario Regulation 209/01 arising from an elevator failure that injured several individuals.

The trial judge convicted the appellant on several strict liability offences relating to inspection failures, unsafe operation of an elevating device, and failure to maintain proper log books, and imposed substantial fines.

On appeal under the Provincial Offences Act, the appellant argued jurisdictional error due to a lost original Information, misinterpretation of regulatory obligations, improper application of the Kienapple principle, and an excessive sentence.

The Superior Court held that reliance on a duplicate Information did not deprive the court of jurisdiction, that the evidence supported the convictions, and that the trial judge properly rejected the due diligence defence.

The court also found no error in the refusal to stay certain counts or in the quantum of the fines.

Following the granting of an interim injunction restraining individuals from interfering with development activities on privately owned land, the court determined costs of the application.

The responding parties argued that costs should not be awarded because the litigation raised public interest issues relating to Indigenous title and burial grounds.

The court rejected this characterization, finding the respondents engaged in trespass and intimidation rather than advancing their claims through lawful court processes.

Applying the proportionality principles under Rule 57.01 of the Rules of Civil Procedure and the guidance in Boucher v. Public Accountants Council for the Province of Ontario, the court fixed partial indemnity costs.

Costs of $12,500 were awarded to the applicants as fair and reasonable in the circumstances.

The moving party, a mining exploration company, sought leave to appeal an interlocutory injunction that restrained it from engaging in mineral exploration activities on lands subject to asserted treaty and Aboriginal rights of the responding First Nation.

The motion judge had granted the injunction based on the Crown's failure to consult and accommodate, finding that the operational aspects of the duty to consult had been delegated to the mining company.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the motion judge's decision that the company had a delegated duty to consult and that an injunction could be issued against a third party based on the Crown's failure to consult.

Following a motion for leave to appeal, the court received written submissions on the reserved issue of costs.

The moving parties argued for a no-costs order, while the responding party sought its costs.

The court found that the responding party was entitled to its costs on a partial indemnity scale, noting that the moving parties had a full hearing on constitutional issues and did not disclose their funding arrangements to support a no-costs order.

Costs were fixed at $28,000 all-inclusive.

Bell Canada brought an application to strike two arbitration proceedings commenced by Plan Group Inc. (PGI) and its predecessor partnership.

PGI brought a motion to stay the application in favour of arbitration.

The court found that the first arbitration was a nullity because it was commenced by a dissolved partnership that no longer existed.

The court also found that the second arbitration was statute-barred under the Limitations Act, 2002, as the arbitration agreement did not contain clear and express language contracting out of the statutory limitation period.

The court declined to stay the application, finding that the issues were questions of law appropriate for summary judgment under the Arbitration Act, 1991.

The application was granted and the motion to stay was dismissed.

The Ministry of Transportation (MTO) appealed a decision validating a mining claim staked on Crown land where the MTO was planning a new highway route.

The MTO argued the land was in 'actual use' and thus exempt from staking under the Mining Act.

The Mining and Land Commissioner found the MTO's preliminary planning activities did not constitute 'actual use'.

The Court of Appeal applied a reasonableness standard of review and upheld the Commissioner's decision, finding that drawing the line between preliminary and substantive use was within the Commissioner's expertise and the outcome was reasonable.

The moving party, Toshiba of Canada Limited, sought leave to appeal an interlocutory order denying its motion for production of the Commissioner of Competition's internal inquiry commencement memorandum and for leave to cross-examine the affiant of an ex parte order.

The ex parte order required Toshiba to produce records under section 11 of the Competition Act.

The Divisional Court held that the underlying proceeding was criminal in nature, meaning the Criminal Proceedings Rules applied, which do not provide for an appeal of an interlocutory order.

The court also rejected the argument that the motion could be treated as a civil proceeding for declaratory relief under the Charter.

Consequently, the court found it lacked jurisdiction and denied leave to appeal.

The appellant appealed a decision declaring that the arbitration clause in its Alliance Agreement with the respondent did not require a party to file a notice of request to arbitrate with the Arbitration and Mediation Institute of Ontario to commence arbitration.

The Court of Appeal allowed the appeal, finding that the application judge erred in his interpretation of the arbitration clause.

The Court held that the standard of review for contractual interpretation in this case was correctness, and that the clear wording of the agreement required the arbitration to be conducted under the 'then-current rules' of the Institute, which mandated filing a notice with the Institute to commence proceedings.

The appellant licensee appealed a decision of the Board of the Alcohol and Gaming Commission of Ontario, which found a breach of s. 45(1) of Ontario Regulation 719/90 for permitting drunkenness and suspended its licence for seven days.

The appellant argued the Board erred in law by reserving its decision on a motion for non-suit and requiring the licensee to call evidence.

The Divisional Court dismissed the appeal, finding the Board was not required to entertain non-suit motions allegation by allegation without a complete election.

The court also held that a prima facie case of permitting drunkenness had been established based on the evidence.

The appellants, a First Nation and its leaders, engaged in a peaceful protest and blockade to prevent a private mining company from conducting exploratory drilling on lands subject to an ongoing aboriginal land claim.

They were found in civil contempt for violating interim and interlocutory injunctions and were sentenced to six months' imprisonment and substantial fines.

On appeal, the Court of Appeal set aside the custodial and monetary sentences, holding that they were excessively harsh and that the sentencing principles from R. v. Gladue apply to aboriginal persons facing civil contempt proceedings.

The appellants, a First Nation and six individuals, appealed their six-month sentences for contempt of a court order.

The respondent did not oppose the appeal, conceding that the appellants had spent enough time in jail and that the underlying dispute required negotiation.

The Court of Appeal accepted the respondent's position and allowed the appeal, ordering the release of the appellants.