Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: February 09, 2022
CASE NO(S).: OLT-21-001686
PROCEEDING COMMENCED UNDER section 74(2)(a) of the Mining Act, R.S.O. 1990, c. M.14, as amended
Applicants: Pamela Marie Drobot and Allan Michael Wasney in their capacity as Estate Trustees for the Estate of Allan Bonner Wasney
Subject: Application to vest the Mining Claim interests of Allan Bonard Wasney, deceased, in Pamela Marie Drobot and Allan Michael Wasney, in their capacity as Estate Trustees for the Estate of Allan Bonner Wasney
Boundary and Cell Mining Claims: See Schedule “A” attached and forming part of this Order
Area/Mining Division: Freeborn Township, Thunder Bay Mining Division
OLT Case No.: OLT-21-001686
OLT Case Name: Wasney Estate
Heard: In writing
APPEARANCES:
Parties The Estate of Allan Bonard Wasney, (also known as Allan Bonner Wasney)
Representative Pamela Marie Drobot and Allan Michael Wasney by the Appointed Trustees
DECISION DELIVERED BY DAVID L. LANTHIER AND ORDER OF THE TRIBUNAL
INTRODUCTION and application
1This Application to the Tribunal is brought by Michael Wasney and Pamela Marie Drobot (the “Applicants”), as Estate Trustees for the Estate of “Alan Bonard Wasney”, pursuant to s. 74(1) of the Mining Act to vest the 33.33% interest of the deceased Claim Holder in unpatented mining claims registered with the Mining Recorder for the Ministry of Natural Resources & Forestry, Northern Development and Mines (“Ministry”).
2The Applicants have not, in their Application, requested that the Tribunal extend the time for performing the assessment work, or making payments in place of the assessment work required pursuant to s. 65 of the Mining Act.
3The Applicants request to the Tribunal goes beyond a request for a vesting of the deceased’s 33.33% interest in the subject Mining Claims into the names of the Estate Trustees for the Estate of the deceased Claim Holder. The Application, and supporting Affidavit, requests that the Tribunal transfer “the estates (sic) interest on behalf of the beneficiaries to “Fern Elizabeth Gold Exploration Ltd.” (“FEG Exploration Ltd”). The Application indicates that FEG Exploration Ltd. currently also holds a 33.33% interest in the same three mining cells and that a representative of a third person owning the remaining 33.3% interest in the three mining cells also intends to transfer that interest to FEG Exploration Ltd.
THE APPLICATION MATERIALS
4The Tribunal initially received and considered the following documentation, in electronic format, in support of the Application:
- The Application – OLT Form A1 and accompanying Checklist;
- The Affidavit of Allan Michael Wasney and Pamela Marie Drobot sworn, respectively, on November 15, 2021 and November 23, 2021 in relation to the Mining Claims held by their deceased father “Allan Bonard Wasney” (the “Claim Holder”);
- Proof of Death Certification of the Claim Holder, “Allan Wasney” dated March 2, 2020;
- Funeral Director Proof of Death Certificate of the Claim Holder’s spouse, Helen Doreen Wasney dated June 26, 2007;
- A notarial copy of the Certificate of Appointment of Estate Trustee with A Will (“Certificate of Appointment”) in the Estate of “Allan Bonner Wasney”, issued by the Ontario Superior Court of Justice, Fort Frances, Ontario on August 20, 2020 together with the Last Will and Testament of “Allan Bonner Wasney”.
- Client Report issued by the Ministry of Energy, Northern Development and Mines on November 6, 2021 listing the Mining Claims and interests registered in the name of “Allan Bonnard Wasney”.
THE DISCREPANCY IN THE NAME OF THE CLAIM HOLDER
5In a preliminary review of the documentation filed in support of the Application, the Tribunal immediately noted discrepancies in the references to the deceased Claim Holder. They are as follows (emphasis added):
- the Mining Recorder recorded the Claims in the name of “Allan Bonard Wasney”;
- the Application to the Tribunal is similarly brought by the Estate Trustees for the Estate of “Allan Bonard Wasney” and the Affidavit in support of the Application refers to the same name;
- the Death Certificate is for “Allan Wasney” and makes no reference to a middle name;
- in contrast to this, the Last Will and Testament filed with the Application uses a different name, that of “Allan Bonner Wasney” and was signed as such by the Testator;
- most significantly, the Certificate of Appointment of Estate Trustee issued by the Court is consistent with the Will and is issued for the administration of the Estate of “Allan Bonner Wasney” – a name clearly different from the name in which the Claim Holder held, and holds, the Claims.
6As the Tribunal is not privy to the content of the Application to the Ontario Superior Court of Justice (the “Court”) for the Certificate of Appointment, it is not known whether the use and form of a different name by the deceased was brought to the Court’s attention, but the Certificate makes no reference to the use of alternate names. Since the Certificate of Appointment does not include any such proviso, it is assumed that the Applicants did not provide supporting proof that the Testator and Claim Holder used different names. This must now be considered by the Tribunal.
7The above-noted discrepancies were not addressed in the Affidavit Material initially filed with the Tribunal. In the absence of supporting evidence that Allan Bonner Wasney is one in the same person as Allan Bonard Wasney, the Tribunal was not in a position to issue the necessary vesting Order.
8The Tribunal permitted the Applicants the opportunity to file additional supplementary affidavit evidence to address these discrepancies in the registered name of the deceased on the Mining Claims in relation to the administration of the estate of the Claim Holder. The additional Affidavit of Pamela Marie Drobot and Allan Michael Wasney sworn, respectively, January 21, 2022 and January 14, 2022 has now been received and considered.
9The Tribunal is now satisfied, upon the additional sworn evidence of the Applicants, and supporting documentation including government registrations and additional estate planning documents that “Allan Bonner Wasney” as named in the Certificate of Appointment issued by the Court, is one and and the same person as “Allan Bonard Wasney”, the registered holder of the subject Mining Claims in the records of the Mining Recorder.
REVIEW OF THE EVIDENCE IN SUPPORT OF THE APPLICATION
10The following evidence is before the Tribunal, as contained in the above materials:
a. The Ministry Records confirm that the Claim Holder Allan Bonard Wasney, one in the same person as “Allan Bonner Wasney”, held a 33.33% interest in three unpatented mining claims as follows:
| No. | Township / Area | Legacy Claim ID | Tenure ID | Tenure Type of Mining Claim | Tenure % Interest | Anniversary Date |
|---|---|---|---|---|---|---|
| 1 | Freeborn | 4282559 | 334199 | Single Cell | 33.33% | April 4, 2022 |
| 2 | Freeborn | 4282559 | 226333 | Boundary Cell | 33.33% | April 4, 2022 |
| 3 | Freeborn | 4282559 | 115471 | Boundary Cell | 33.33% | April 4, 2022 |
(collectively referred to as “the Mining Claims”)
b. The Claim Holder died on February 22, 2020, having executed a Last Will and Testament (“Will”) on August 12, 1993.
c. Under his Will, the Claim Holder appointed his spouse Helen Doreen Wasney to be the sole Executor and Trustee of his Estate; but in the event Helen Doreen Wasney predeceased him, he appointed his son Allan Michael Wasney and his daughter Pamela Marie Drobot to be the Executors and Trustees of his Estate.
d. The Will contains the requisite clause granting the Executors and Trustees the necessary general powers to sell any portion of the estate not consisting of money.
e. The Claim Holder was predeceased by his spouse Helen Doreen Wasney, who died on June 22, 2007.
f. Upon Application by the surviving appointed Executors and Trustees, Michael Wasney and Pamela Marie Drobot to the Court at Fort Frances Ontario, a Certificate of Appointment of Estate Trustee was issued to them on August 20, 2020. Michael Wasney and Pamela Marie Drobot have accordingly been appointed to administer the Estate of the deceased Claim Holder under the Will dated August 12, 1993.
g. All of the Claim Holder’s interest in his Estate was given, devised and bequeathed to his Estate Trustees, Allan Michael Wasney and Pamela Marie Drobot to be administered in accordance with the terms of his Will.
h. The Claim Holder’s Will does not provide for any direct bequest of any personal property, real estate or assets, including the Mining Claims to any identified beneficiary.
i. Following payment of the Claim Holder’s debts, funeral and testamentary expenses, succession duties and inheritance, death and estate taxes, the Claim Holder’s Will provides that the residue of the Claim Holder’s Estate is to be transferred to his three children Michael Wasney, Pamela Marie Drobot and Cheryl Ann Wasney in equal shares per stirpes.
REQUEST TO TRANSFER THE DECEASED’S MINING CLAIM INTERESTS TO A CORPORATION
11The Application before the Tribunal, as indicated, specifically requests that the Vesting Order of the Tribunal effectively “transfer” all of the deceased Claim Holder’s 33.33% interest in the Mining Claims to FEG Exploration Ltd. rather than in the name of the appointed Estate Trustees of the Estate of the deceased Claim Holder.
12For the reasons that follow, the Tribunal had determined that it would be inappropriate to do so and is unable to accede to that request.
13With respect to the vesting powers granted to the Tribunal, s. 74(2) of the Mining Act provides as follows:
Vesting of claim
74(2) If the holder of an unpatented mining claim dies, the Tribunal may, upon application made before the day the claim becomes forfeit under subsection (1), make an order,
(a) vesting the mining claim in the representative of the deceased claim holder or in any person with an interest in the claim, as the Tribunal considers appropriate;…
14The jurisdiction granted to the Tribunal is limited to the vesting of Mining Claims in either the “representative of the deceased claim holder” or alternatively “in any person with an interest in the claim”, as is considered appropriate. As the Tribunal’s powers are derived only from statute pursuant to s. 8(1) of the Ontario Land Tribunal Act, the Applicant’s request in this case raises the question as to whether the powers granted under s. 74(2) of the Mining Act permit the Tribunal to concurrently effect a transfer of the deceased Claim Holder’s interest to a third party. Upon the facts and documentation presented, it does not.
15The Court retains exclusive responsibility for matters relating to the administration of the estates of deceased persons, through either testate or intestate succession. Where there is a will, as is the case here, the “first step” in the administration of the estate of a deceased requires the Court to consider and certify the testamentary will of the deceased and concurrently certify the appointment of the executors and trustees. This Certificate issued under the seal of the Court operates to legally empower the Estate Trustees to administer the deceased’s assets in accordance with the terms of the will and all governing legislation, regulations and laws relating to the administration of an estate. There are alternative processes to be followed where the deceased dies intestate without a will, but similarly someone is certified and legally empowered to administer a deceased’s assets in such circumstances.
16The issuance of the Certificate of Appointment, in this case, accordingly does two things: it first validates who has the authority, as the appointed Estate Trustees, to administer all assets of the estate; and secondly, it then validates the Will of the deceased as to how the estate is to be administered and the manner in which it is to be distributed to the specific or residual beneficiaries.
17In this two-step process, the assets of an estate must first vest within the authority of the appointed Estate Trustees and only then, may each asset be transferred, “paid or delivered” by the Estate Trustees to the person entitled under the terms of the validated will. It the Tribunal’s view that this two-part process undertaken by the Court is consistent with the two options granted to the Tribunal under the powers conferred in s. 74(2)(a) of the Mining Act.
18The Tribunal otherwise has no involvement or jurisdiction in and of the estate administration determinations of the Court as identified above. Section 74(2)(a) of the Mining Act grants jurisdiction to the Tribunal only to consider the sufficiency of such facts and information relating to such estate administration processes to determine and make orders with respect to two matters:
(a) who is first entitled to acquire the vested interest in mining claims as the properly appointed estate trustee(s) and make the necessary vesting order for that mining claim; and
(b) if identified within the Court’s validated Will, and where appropriate, who may be further entitled to receive the deceased’s interest in the mining claims and if so, make the necessary order for the transfer of the mining claims.
19Upon the evidence presented, the Tribunal is satisfied that the first determination can be made. The Applicants have been certified as the Estate Trustees entitled to administer the assets of the deceased Claim Holder and, further, the Tribunal is satisfied that the assets of the deceased include the Mining Claims. This is sufficient to enable the Tribunal to make the necessary order to vest the deceased Claim Holder’s 33.33% interest in the Mining Claims in the Applicants as the Estate Trustees.
20However, the Will of the deceased Claim Holder does not provide any indication that any person or corporation is, in the distribution of the Estate under the Will, entitled to receive ownership of the deceased Claim Holder’s interest in the Mining Claims such that a further second order can be made by the Tribunal. Such evidence would require a clear and specific bequest identifying the Mining Claims and directing that they be transferred to an identified beneficiary (such as FEG Exploration Ltd.) prior to the payment of debts, funeral and testamentary expenses and prior to the distribution of the residue of the estate to the residual beneficiaries. Other evidence might also be required in relation to the administration of the deceased Claim Holder’s estate.
21That is not the case here. As a result of the prior death of his spouse Helen Doreen Wasney, Mr. Wasney’s Will provides instead that the entire residue of an estate, inclusive of the Mining Claims, is to be distributed to designated beneficiaries after payment of all “debts, funeral and testamentary expenses and all succession duties and inheritance, death and estate taxes that may be payable”. The Tribunal remains without any power or jurisdiction to provide directions or orders with respect to such administration or distribution of the residue of the estate. That is within the rights and responsibilities of the Applicants, and within the Court’s jurisdiction in the event of any dispute or review upon a passing of accounts.
22As well, the Tribunal clearly does not have jurisdiction under such processes to supersede the multitude of regulated processes, legislation, regulations, procedural requirements relating to the administration of an estate, which also remain within the exclusive jurisdiction of the Court. This includes the many intricacies of estate administration relating to such things as: the payment of fees, taxes and duties relating to administration; the payment of debts and liabilities and the protection of creditors; the rights of Family Law Act claimants or other persons having an interest is the assets of an estate; claims to executor’s compensation or matters of accounting, transparency and reporting in relation to the administration of an estate.
23In summary, in the absence of a specific bequest within the Will of Allan Bonner Wasney providing for the transfer of all interest in the Mining Claims by the Estate Trustees and Applicants to FEG Exploration Ltd, in priority to, and in the absence of, the payment of debts and liabilities of the Estate, and the provisions for the residue of the Estate, or other directions from the Court, the Tribunal has no authority or sufficient evidence to make such an Order. To do so would also effectively enable the Applicants to possibly circumvent their obligations and responsibilities as Estate Trustees under Ontario law, as such obligations and responsibilities might be interrelated with the subject Mining Claims. There are additional steps that can eventually be taken by the Applicants as the Estate Trustees to transfer the interest of the Estate in the Mining Claims to FEG Exploration Ltd. if that is appropriate, but they remain beyond the domain of the Tribunal.
CONSIDERATION AND DISPOSITION
24Upon the documentation and information provided, and for the reasons indicated above, the Application to vest the deceased Claim Holder’s 33.33% interest in the Mining Claims in the Applicants as Estate Trustees for the Estate of Allan Bonner Wasney, also known as Allan Bonard Wasney, is granted.
25For the reasons indicated, the request to transfer the deceased Claim Holder’s 33.33% interest in the Mining Claims into the name of the corporation FEG Exploration Ltd. is not appropriate and is denied.
26The Tribunal notes that the Applicants did not request an extension of time in which to perform and file prescribed assessment work on the Mining Claims pursuant to s. 74(2)(b) of the Mining Act. The records from the Mining Record confirm that the Mining Claims already have the benefit of available exploration reserve in the mining claim bank. In light of the anniversary date for the performance and filing of prescribed assessment work on the Mining Claims, it is possible that minimal time will be left for the Applicants to perform and/or file assessment work. As a result, the Tribunal will extend the due dates for the performance and filing of prescribed assessment work on the Mining Claims to April 4, 2024.
ORDER
27The Tribunal hereby provides the following Orders and Directives:
(a) The percentage interest of the deceased Allan Bonard Wasney, also known as Allan Bonner Wasney, in the following Boundary Cell and Single Cell Mining Claims is hereby vested in Pamela Marie Drobot and Allan Michael Wasney, in their capacity as Estate Trustees for the Estate of Allan Bonner Wasney (also known as Allan Bonard Wasney), pursuant to s. 74(2)(a) of the Mining Act:
| No. | Township / Area | Legacy Claim ID | Tenure ID | Tenure Type of Mining Claim | Tenure % Interest | Anniversary Date |
|---|---|---|---|---|---|---|
| 1 | Freeborn | 4282559 | 334199 | Single Cell | 33.33% | April 4, 2022 |
| 2 | Freeborn | 4282559 | 226333 | Boundary Cell | 33.33% | April 4, 2022 |
| 3 | Freeborn | 4282559 | 115471 | Boundary Cell | 33.33% | April 4, 2022 |
(b) The request for the further transfer of the 33.33% interest in those Mining Claims into the name of “Fern Elizabeth Gold Exploration Ltd” is denied.
(c) The Tribunal further directs that the time for the performance and filing of the next unit(s) of assessment work, due on or before April 4, 2022, on the Single Cell Mining Claim 334199 and Boundary Cell Mining Claims 226333 and 115471, be and is hereby extended to April 4, 2024, pursuant to s. 74(2)(b) of the Mining Act.
(d) The Tribunal further directs that a copy of this Order shall be forwarded to the Provincial Mining Recorder who is hereby directed to amend the records in the Provincial Recording Office as necessary and in accordance with s. 129(4) of the Mining Act.
“David L. Lanthier”
DAVID L. LANTHIER VICE-CHAIR
Ontario Land Tribunal Website: www.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 A
Allan Bonard Wasney (403104) Boundary and Cell Mining Claims
| Township / Area | Tenure ID | Tenure Type | Anniversary Date | New Anniversary Date |
|---|---|---|---|---|
| FREEBORN | 334199 | Single Cell Mining Claim | 04/04/2022 | N/A |
| FREEBORN | 226333 | Boundary Cell Mining Claim | 04/04/2022 | N/A |
| FREEBORN | 115471 | Boundary Cell Mining Claim | 04/04/2022 | N/A |