Zarzycki v. Ontario (Northern Development, Mines, Natural Resources and Forestry), 2022 CanLII 9892

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: February 07, 2022

CASE NO(S).: OLT-21-001261

PROCEEDING COMMENCED UNDER section 112(3) of the Mining Act, R.S.O. 1990, c. M.14, as amended

Appellant: Mikolaj Zarzycki

Respondent: Ministry of Northern Development, Mines, Natural Resources and Forestry

Subject: Appeal of Decision of Provincial Mining Recorder To Delete Entry of Claim From Mining Claims Registry

Unpatented Mining Claim: 653494

Municipality/Division: Unorganized Area/Southern Ontario Mining Division

OLT Case No.: OLT-21-001261

OLT Case Name: Zarzycki v. Ontario (Northern Development, Mines, Natural Resources and Forestry)

Heard: January 31, 2022 by video hearing

APPEARANCES:

Parties

Counsel

Mikolaj Zarzycki

Self-represented

Ministry of Northern Development, Mines, Natural Resources and Forestry

Mike Mercer, Michael Cameron and Yara Willox (student-at-law)

MEMORANDUM OF ORAL DECISION DELIVERED BY HUGH S. WILKINS ON JANUARY 31, 2022 AND ORDER OF THE TRIBUNAL

1On January 31, 2022, the Tribunal held the second Case Management Conference (“CMC”) regarding the appeal brought by Mikolaj Zarzycki under s. 112(3) of the Mining Act regarding the deletion of an entry of claim from the Mining Claims Registry by the Provincial Mining Recorder.

2At the CMC, the Tribunal confirmed the issues to be addressed at the hearing and the number and types of witnesses to be called. The Parties confirmed their positions regarding the utility of settlement discussions, which the Ministry of Northern Development, Mines, Natural Resources and Forestry stated would be of little value given the nature of the issues. The Tribunal scheduled the hearing for July 2022.

3On February 3, 2022, the Parties filed a draft Procedural Order and Issues List, which the Tribunal has reviewed and approves. It is attached as Schedule 1 to this Order and Decision.

ORDER

4The Tribunal approves the Procedural Order and Issues List attached as Schedule 1 to this Order and Decision.

5The Tribunal orders that the hearing in this matter will be held by video hearing on Tuesday, July 5, 2022 commencing at 10 a.m. One day has been set aside.

6Parties are asked to log into the video hearing at least 15 minutes before the start of the event to test their video and audio connections:

https://meet.goto.com/660145013

Access Code: 660-145-013

7Parties are asked to set up the video hearing application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at GoToMeeting or a web application is available: https://app.gotomeeting.com/home.html.

8Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling: +1 (647) 497-9373 or (Toll Free) 1 (888) 299-1889. The access code is indicated above.

9Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the hearing by video to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.

10There will be no further notice.

11This Member is not seized.

“Hugh S. Wilkins”

HUGH S. WILKINS

MEMBER

Ontario Land Tribunal

Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.

SCHEDULE 1

Sample Procedural Order for Video Hearings

Purpose of the Procedural Order

Case management conferences are scheduled by the Tribunal to organize the hearing. This sample procedural order is provided to identify who may participate in the hearing, the issues in dispute, and the matters that are required to be carried out before the hearing. The attachment to this sample procedural order explains the meaning of a number of terms in the sample procedural order, such as a party or a participant.

The Tribunal recommends that the appellant, municipality, the applicant (if applicable), or those who wish to seek party status in this proceeding, meet, remotely if necessary, to discuss this sample procedural order before the date of the case management conference and try to identify the issues and process they want the Tribunal to order following the conference. The Tribunal will hear submissions on the content of this sample procedural order at the case management conference and issue a procedural order at a later date.

If you are not represented by a lawyer, you should prepare by reviewing the Tribunal’s Video Hearings Guide, and the Tribunal’s Rules of Practice and Procedure (“Rules”), particularly Rule 20, which are available on the Tribunal’s website.

CASE NO(S).: OLT-21-001261

PROCEEDING COMMENCED UNDER section 112(3) of the Mining Act, R.S.O. 1990, c. M.14, as amended

Appellant: Mikolaj Zarzycki

Respondent: Ministry of Northern Development, Mines, Natural Resources and Forestry

Subject: Appeal of Decision of Provincial Mining Recorder To Delete Entry of Claim From Mining Claims Registry

Unpatented Mining Claim: 653494

Municipality/Division: Unorganized Area/Southern Ontario Mining Division

OLT Case No.: OLT-21-001261

OLT Case Name: Zarzycki v. Ontario (Northern Development, Mines, Natural Resources and Forestry)

(Repeat the above heading as needed for each provision(s) under which the proceeding is commenced)

1. The Tribunal may vary or add to the directions in this procedural order at any time by an oral ruling or by another written order, either on the parties’ request or its own motion.

Organization of the Hearing

2. The video hearing will begin on Tuesday, July 5, 2022 at 10:00 a.m.

3. The parties’ initial estimation for the length of the hearing is 1 day. The parties are expected to cooperate to reduce the length of the hearing by eliminating redundant evidence and attempting to reach settlements on issues where possible.

4. The parties and participants identified at the case management conference are set out in Attachment 1.

5. The issues are set out in the Issues List attached as Attachment 2. There will be no changes to this list unless the Tribunal permits, and a party who asks for changes may have costs awarded against it.

6. The order of evidence shall be as set out in Attachment 3 to this Order. The Tribunal may limit the amount of time allocated for opening statements, evidence in chief (including the qualification of witnesses), cross-examination, evidence in reply and final argument. The length of written argument, if any, may be limited either on the parties’ consent, subject to the Tribunal’s approval, or by Order of the Tribunal.

7. Any person intending to participate in the hearing should provide a mailing address, email address and a telephone number to the Tribunal as soon as possible – ideally before the case management conference. Any person who will be retaining a representative should advise the other parties and the Tribunal of the representative’s name, address, email address and the phone number as soon as possible.

8. Any person who intends to participate in the hearing, including parties, counsel and witnesses, is expected to review the Tribunal’s Video Hearing Guide, available on the Tribunal’s website.

Requirements Before the Hearing

9. A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal and the other parties a list of the witnesses and the order in which they will be called. This list must be delivered on or before Wednesday, May 11, 2022 and in accordance with paragraph 21 below. A party who intends to call an expert witness must include a copy of the witness’ Curriculum Vitae and the area of expertise in which the witness is prepared to be qualified.

10. An expert witness shall prepare an expert witness statement, which shall list any reports prepared by the expert, or any other reports or documents to be relied on at the hearing. Copies of this must be provided as in paragraph 12 below. Instead of a witness statement, the expert may file his or her entire report if it contains the required information. If this is not done, the Tribunal may refuse to hear the expert’s testimony.

11. Expert witnesses who are under summons but not paid to produce a report do not have to file an expert witness statement; but the party calling them must file a brief outline of the expert’s evidence as in paragraph 12 below. A party who intends to call a witness who is not an expert must file a brief outline of the witness’ evidence, as in paragraph 12 below.

12. On or before Friday, May 27, 2022, the parties shall provide copies of their witness and expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 21 below.

13. On or before Friday, May 27, 2022, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 21 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

14. On or before Friday, June 3, 2022, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 21 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

15. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence within fourteen (14) days after the evidence is received and in accordance with paragraph 21 below.

16. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before Friday, June 24, 2022.

17. Any documents which may be used by a party in cross examination of an opposing party’s witness shall be password protected and only be accessible to the Tribunal and the other parties if it is introduced as evidence at the hearing, pursuant to the directions provided by the OLT case co-ordinator, on or before Tuesday, June 28, 2022.

18. A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal. See Rule 10 of the Tribunal’s Rules with respect to Motions, which requires that the moving party provide copies of the motion to all other parties 15 days before the Tribunal hears the motion.

19. A party who provides written evidence of a witness to the other parties must have the witness attend the hearing to give oral evidence, unless the party notifies the Tribunal at least 7 days before the hearing that the written evidence is not part of their record.

20. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before N/A with a proposed schedule for the hearing that identifies, as a minimum, the parties participating in the hearing, the preliminary matters (if any to be addressed), the anticipated order of evidence, the date each witness is expected to attend, the anticipated length of time for evidence to be presented by each witness in chief, cross-examination and re-examination (if any) and the expected length of time for final submissions. The parties are expected to ensure that the hearing proceeds in an efficient manner and in accordance with the hearing plan. The Tribunal may, at its discretion, change or alter the hearing plan at any time in the course of the hearing.

21. All filings shall be submitted electronically and in hard copy. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10MB in size, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by the Rule 7.

22. No adjournments or delays will be granted before or during the hearing except for serious hardship or illness. The Tribunal’s Rule 17 applies to such requests.

This Member is not seized.

So orders the Tribunal.

Attachment 1: Parties and Participants

• Parties:
  • Appellant: Mikolaj Zarzycki
  • Respondent: Ontario (Ministry of Northern Development, Mines, Natural Resources and Forestry)

Attachment 2: Issues List

• a) whether, at the time of the 1912 Order in Council, some or all of the lands on which Claim 653494 was registered were not under the waters of Lake Ontario and as a result were not subject to that Order in Council.

Attachment 3: Order of Evidence

• Opening statements:
  • a) appellant
  • b) respondent
• Appellant:
  • Establishing appellant’s expert witness #1’s expertise (to the extent not agreed by the parties in advance);
  • direct examination of the appellant’s expert witness #1 (a geologist)
    • cross examination by the respondent
    • re-examination by the appellant
  • Establishing appellant’s expert witness #2’s expertise (to the extent not agreed by the parties in advance);
  • direct examination of the appellant’s expert witness #2 (a geologist)
    • cross examination by the respondent
    • re-examination by the appellant
  • Establishing appellant’s expert witness #3’s expertise (to the extent not agreed by the parties in advance);
  • direct examination of the appellant’s expert witness #3 (a geologist)
    • cross examination by the respondent
    • re-examination by the appellant
  • Establishing appellant’s witness #4’s expertise (if relevant, and to the extent not agreed by the parties in advance);
  • direct examination of the appellant’s witness #4 (a historian)
    • cross examination by the respondent
    • re-examination by the appellant
• Respondent:
  • direct examination of the respondent’s witness from the Ministry of Northern Development, Mines, Natural Resources and Forestry regarding the claim location, the mapping that was relied on, and the withdrawal of the lands in question by the 1912 Order in Council
    • cross examination by the appellant
    • re-examination by the respondent
• Closing arguments:
  • a) appellant
  • b) respondent