ISSUE DATE: April 22, 2024
CASE NO(S).: OLT-24-000334
PROCEEDING COMMENCED UNDER subsection 74(2) of the Mining Act, R.S.O. 1990, c. M.14, as amended
Applicant: Charles Gryba
Subject: Application to vest the Mining Claim interests of Patrick Gryba, deceased
Boundary and Cell Mining Claims: See Schedule A attached and forming part of this Order
Area/Mining Division: See Schedule A attached and forming part of this Order
OLT Case No.: OLT-24-000334
OLT Lead Case No.: OLT-24-000334
OLT Case Name: Gryba Estate
Heard: In writing
Parties Charles Gryba
Counsel Renee Maisonneuve
DECISION DELIVERED BY C. HARDY AND ORDER OF THE TRIBUNAL
Link to the Order
INTRODUCTION AND BACKGROUND TO THE APPLICATION
1This Decision and Order deals with a request received from Charles Gryba ("Applicant") as one of two beneficiaries of the Estate of Patrick Gryba. Mr. Gryba died without a will on November 30, 2023 and, at the time of his death, was listed with the Ministry of Energy, Northern Development and Mines ("Ministry") as the recorded holder of approximately 441 Mining Claims ("mining claims") as outlined in Schedule A attached hereto.
2The Applicant first contacted the Ontario Land Tribunal ("Tribunal") on December 12, 2023, submitting information relating to the mining claims and the death of Mr. Gryba. Following the initial correspondence, the Applicant filed an application for an Order of the Tribunal pursuant to s. 74(2) of the Mining Act, R.S.O. 1990, c. M.14, as amended ("Act") requesting a vesting order relating to the mining claims. The Applicant included supporting documentation, including a sworn affidavit dated February 5, 2024 ("Affidavit"). The Applicant attested that his brother, Mr. Gryba, died without a will and that the Applicant together with their sister, Beverly Arden, are the only two beneficiaries of the Estate of Patrick Gryba. Mr. Gryba was never married and did not have any children and Ms. Arden consents to the Applicant acting as trustee for the Estate of Mr. Gryba.
3The Applicant is currently in the process of applying to the Ontario Superior Court of Justice ("Court") for a Certificate of Appointment of Estate Trustee Without a Will, however he does not have the funds required to pay the estate administration fee to the Court. As such, the Applicant has applied for a vesting order from the Tribunal, vesting the claims in the Applicant in trust, pending the issuance of a Certificate of Appointment of Estate Trustee. In his Affidavit, the Applicant explained that the mining claims are the only assets in the Estate of Patrick Gryba that can be liquidated in the absence of the Certificate of Appointment of Estate Trustee Without a Will. The vesting of the mining claims to the Applicant will enable the Applicant to sell the mining claims in order to acquire the finances to pay the Court administration fee and all other debts of the Estate.
4The Applicant has further requested that the Tribunal extend the time for performing and filing assessment work with respect to the mining claims.
DISCUSSION
5Based upon the information provided by the Applicant, the Tribunal is satisfied that Mr. Gryba is the claim holder of approximately 441 mining claims as identified on Schedule A.
6The Tribunal has determined that it cannot vest the mining claims to the Applicant in trust. The Tribunal has not been presented with, nor is the Tribunal aware of, any statutory authority allowing the Tribunal to vest mining claims to an individual or entity in trust. The Tribunal requires either a Last Will and Testament of the deceased or a Certificate of Appointment of Estate Trustee from the Court in order to grant the Applicant a vesting order as requested.
7Section 64(2.1) of the Act permits any party to the proceeding to request an order from the Tribunal as follows:
Proceeding pending before Tribunal
(2.1) Where any proceeding that may be brought before the Tribunal or any appeal from a decision of a recorder is pending before the Tribunal, the Tribunal may make an order requiring a recorder to make a note of the pending proceeding on the applicable mining claim abstracts.
8In order to make an Order of pending proceedings, pursuant to this section of the Act, the Tribunal must, in this case, be satisfied that:
a. a proceeding has been commenced by the Applicant before Court;
b. the proceeding remains undetermined by the Court and therefore pending;
c. the proceeding advances some manner of claim relating to the holder of the mining claims, claiming an interest in the mining claims; and,
d. the mining claims form part of the Estate of Patrick Gryba, which is the subject matter of the action pending before the Court and identified in this Application for a Vesting Order.
9Based on the facts as outlined above, the Tribunal confirms that a proceeding has been commenced by the Applicant for a Certificate of Appointment of Estate Trustee Without a Will.
10Upon a review of the Affidavit, the Tribunal is satisfied that the proceeding before the Court relates to the Applicant's application for a Certificate of Appointment of Estate Trustee Without a Will relating to the Estate of Mr. Gryba and further that the mining claims as listed in Schedule A to this Order were owned by Mr. Gryba, at the time of his death.
11As set out in the Affidavit, since the Applicant is the applicant to the Tribunal proceeding, the Tribunal finds that the Applicant is permitted by the Act to request, and may obtain, an Order that a Note of Pending Proceedings be registered against the mining claims held by Mr. Gryba pursuant to s. 64(2.1) of the Act.
12It will remain for the Applicant to establish to the Court that he has a right to be appointed as Estate Trustee and thereby, has a right to access the mining claims.
13The Tribunal has no authority to vest the mining claims to the Applicant in trust, as requested. Rather, the mining claims must vest to the Estate in trust and accordingly, the Tribunal is unable to grant the vesting order until the Court proceeding has been completed. The Applicant must make the proper arrangements to fund and complete the Court proceedings, and provide the Tribunal with the Certificate of Appointment of Estate Trustee Without a Will.
14The Tribunal will not allow the matter to languish in perpetuity and directs the Applicant to provide the Tribunal with a status update within 18 months from the issuance of this Decision and Order. Pursuant to s. 64(4.1) of the Act, the Recorder has the opportunity to cancel the pending proceedings in the event the Applicant does not complete the Court proceedings and/or provide the Tribunal with a status update as directed.
ORDER
15The Tribunal Orders that the Provincial Mining Recorder make a Note of "Pending Proceedings" on the abstracts of the mining claims identified in Schedule A to this Order, nunc pro tunc, to be effective retroactively from, and as of, December 12, 2023. The Note of Pending Proceeding shall remain on the abstracts until such time as the aforementioned proceeding has been determined by the Ontario Superior Court of Justice issuing a Certificate of Appointment of Estate Trustee Without a Will.
"C. Hardy"
C. HARDY
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