Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: May 20, 2022
CASE NO(S).: OLT-22-003504
PROCEEDING COMMENCED UNDER section 64 of the Mining Act, R.S.O. 1990, c. M.14, as amended
Applicant/Requestor: Skead Holdings Ltd.
Subject: Request of a party to a proceeding pending before the Ontario Superior Court of Justice for an order confirming the proceeding is pending and requiring the Provincial Mining Recorder to make a note of the pending proceeding on the applicable mining claim abstracts
Mining Claims: See Schedule A attached and forming part of this Order
Mining Division: Porcupine Mining Division
OLT Case No.: OLT-22-003504
OLT Case Name: Skead Holdings Ltd. v. Fancamp Exploration Ltd.
Heard: In writing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Skead Holdings Ltd. | Hugh MacDonald |
DECISION DELIVERED BY DAVID L. LANTHIER AND ORDER OF THE TRIBUNAL
INTRODUCTION and BACKGROUND TO THE application
1This Decision and Order deals with a request received from Skead Holdings Ltd. (“Skead”) on April 25, 2022 for an Order of the Ontario Land Tribunal (“Tribunal”) pursuant to s. 64(2.2) of the Mining Act (the “Act”) confirming that a proceeding is pending before the Ontario Superior Court of Justice and requiring the Provincial Mining Recorder to make a note of the pending proceeding on 87 mining claim abstracts.
2Skead’s request for the Order is supported by the following:
(a) the application to the Tribunal (Appeal Form) requesting the Order pursuant to s. 64(2.2) (“Application”);
(b) the issued Statement of Claim in Court File No. 28906/22 naming Fancamp Exploration Ltd. (“Fancamp”) as the Defendant;
(c) the sale Agreement identified in the Statement of Claim dated January 14, 2019 (“Agreement”);
(d) the Letter Agreement dated January 22, 2019, confirming the addition of 6 additional claims as included in the Agreement and transferred to Fancamp;
(e) Claims Reports of the Mining Recorder created on January 4, 2022 and May 3, 2022 and Claims Abstracts for additional Claims 551036 and 551037;
(f) Emails from counsel for Skead dated May 3, 5, 6, 16, 2022, together with an updated list of mining claims owned by Fancamp, governed by the Agreement and the Statement Claim and not otherwise forfeited by the alleged action or inaction of Fancamp.
3Skead commenced an action in the Ontario Superior Court of Justice (Court File No. 28906/22) on April 14, 2022 by way of a Statement of Claim naming Fancamp as the Defendant. This proceeding is currently pending before the Court, the subject matter of which is a dispute relating to an agreement in January 2019 leading to the purported sale of an eventual total of 189 mining claims from Skead to Fancamp.
4The Statement of Claim relies upon contractual provisions that required Fancamp to perform certain work and which provided that in the event Fancamp wished to abandon its interest in the identified mining claims, Skead was to be provided with notice and the right to re-acquire the mining claims and comply with other requirements in the Agreement. Skead pleads that Fancamp was, and is, in breach of this Agreement and that, in addition to other monetary claims, Skead is therefore entitled to recover ownership of those mining claims remaining in Fancamp’s name after a number of the transferred claims were forfeited by Fancamp due to its failure to perform the necessary work to preserve them.
5The referenced Agreement in the Statement of Claim, as supplemented by the Letter Agreement, identified 187 mining claims. The Application, as first submitted, indicated that because of the number of mining claims that were forfeited, the total number of mining claims to which Skead claimed an interest was 87.
6For the purposes of supporting the Application, on May 3, 2022, Skead provided the Tribunal with mining claim reports listing a total of 81 claims held by Fancamp and provided clarification that it was now seeking an Order for a Notice of Pending Proceedings limited to only 81 Fancamp claims, and not 87 as identified in the Agreement referenced in the Statement of Claim, and as first indicated in its Application. This was due to the fact that Skead subsequently determined that additional claims had been forfeited due to the failure to comply with the regulatory requirements.
7Upon noting that two claims (551036 and 551037) out of the 81 mining claims were not listed in the Agreement provided in the Application, the Tribunal sought clarification and was advised on May 6, 2022, supported by updated claim abstracts, that there had been a 100% transfer from Skead to Fancamp of these two additional fractional mining claims on June 27, 2019, following the execution of the sale Agreement. Skead has submitted that these two additional fractional claims were part of the totality of the claims in Cunningham Township, transferred under the Agreement, all of which were acquired by Fancamp from Skead.
8To summarize, as a result, the materials and information now provided to the Tribunal in support of the Application identifies a total of 81 mining claims that were the subject of the Agreement between the parties. Of the original 181 claims identified in the Agreement, the additional 6 claims covered under the Letter Agreement, and the two additional fractional mining claims identified in the Abstracts (a total of 189 mining claims), with the loss of those claims forfeited as a result of failure to complete work on those claims, there are 81 mining claims currently registered in Fancamp’s name, as listed in Schedule A. They are thus asserted by Skead to be the subject of the pending litigation before the Court.
DISCUSSION
9Based upon the information provided by Skead, the Tribunal is satisfied that Fancamp is the claim holder of 81 mining claims (the “81 Mining Claims”) as identified in the mining claim reports submitted to the Tribunal by Skead on May 3, 2022. These 81 Mining Claims are the claims which are the subject matter of the Application and are identified in Schedule A attached to this Order.
10[Section 64(2.2)](https://www.canlii.org/en/on/laws/stat/rso-1990-