Court of Appeal for Ontario

Date: 2019-12-24 Docket: C66992

Judges: Roberts, Zarnett and Jamal JJ.A.

Between

Treelawn Capital Corp. and Wood Family Wealth Corporation Applicants (Appellants)

and

IAMGOLD Corporation Respondent (Respondent)

Counsel

Ian P. Katchin and Martin R. Kaplan, for the appellants

Neal J. Smitheman, Vaso Maric and Harry Skinner, for the respondent

Heard

December 19, 2019

Appeal

On appeal from the order of Justice Shaun O'Brien of the Superior Court of Justice, dated May 17, 2019, with reasons reported at 2019 ONSC 1935.

Reasons for Decision

[1] The narrow issue raised in this appeal is whether the application judge erred in exercising her discretion pursuant to s. 107 of the Mining Act, R.S.O. 1990, c. M.14 (the "Mining Act") by refusing to transfer a proceeding commenced by the respondent before the Mining and Lands Tribunal (the "Tribunal") to the Ontario Superior Court of Justice (the "Superior Court").

[2] The respondent commenced the Tribunal proceeding pursuant to s. 181(2) of the Mining Act in order to require the appellants to pay their share of expenditures relating to the development of land and mining claims in which the appellants and respondent are co-owners. Section 181(2) provides one co-owner with an express statutory right to apply to the Tribunal to enforce a claim for payment of rents or expenditures for development work against another co-owner, while s. 181(5) provides for a statutory remedy of a vesting order in respect of the interest of the delinquent co-owner to the other co-owner who has paid rents or made expenditures. These provisions establish a streamlined and expeditious procedure before the Tribunal for a co-owner to recover unpaid rents or expenditures or for a vesting order in respect of mining development work.

[3] The appellants responded to the Tribunal proceeding by applying to the application judge to transfer that proceeding to the Superior Court pursuant to s. 107 of the Mining Act. In essence, the appellants argued that an alleged oral agreement absolved them of any obligation to contribute to the expenses claimed by the respondent pursuant to s. 181(2). They asserted that the court must first adjudicate on the existence and effect of the alleged oral agreement as a preliminary matter, because a ruling in their favour would deprive the Tribunal of jurisdiction over the application for the unpaid expenses.

[4] The appellants later filed a statement of claim with the Superior Court seeking, amongst other things, declaratory relief regarding the alleged oral agreement. A draft of the statement of claim was before the application judge and we are advised that the action was commenced after the hearing of the application to transfer. The draft statement of claim described the oral agreement as governing the obligations of the parties "with respect to all mining activities and development" of the lands in issue.

[5] In our view, the application judge was entitled to find that, having regard to all the circumstances, it would not be appropriate to transfer the Tribunal proceeding to the Superior Court. These circumstances include especially the application judge's findings that: (i) the matters at issue fall squarely within the Tribunal's expertise; (ii) s. 181(2) of the Mining Act expressly addresses how co-owners of land or mining rights are to address rents or expenditures by applying to the Tribunal for a co-owner's proportionate contribution to those expenditures; (iii) s. 181(4) of the Mining Act provides the appellants with a procedure for raising before the Tribunal their argument that the alleged oral agreement eliminates any obligation to contribute to the expenses claimed pursuant to s. 181(2); and (iv) the Tribunal can address any matters that may arise, including jurisdictional issues, by deploying its expertise in interpreting its home statute.

[6] We also disagree with the appellants' characterization of the alleged oral agreement as involving a matter of property and civil rights, which should therefore be transferred to the Superior Court, rather than as involving a matter concerning a right arising under the Mining Act. The Tribunal proceeding involves the exercise of a statutory claim granted under the Act, which the Tribunal has jurisdiction to adjudicate. Moreover, as noted, the draft statement of claim described the alleged oral agreement as governing the obligations of the parties "with respect to all mining activities and development", which again evidences the strong connection with mining. As a result, in our view, and as the application judge found, even though the Superior Court has concurrent jurisdiction in respect of the contract claim, the matters at issue are within the Tribunal's specialized expertise.

[7] For these reasons, we see no error in the application judge's decision refusing to transfer the Tribunal proceeding to the Ontario Superior Court of Justice.

[8] The appeal is dismissed, with costs to the respondent fixed in the agreed amount of $35,000, inclusive of disbursements and taxes.

"L.B. Roberts J.A."

"B. Zarnett J.A."

"M. Jamal J.A."