Mining and Lands Tribunal
Tribunal des Mines et des Terres
ISSUE DATE:
March 29, 2021
CASE NO(S).:
MA 016-18
PROCEEDING COMMENCED UNDER section 181 of the Mining Act, R.S.O. 1990, c. M. 14, as amended
Applicant:
IAMGOLD Corporation
Respondents:
Treelawn Capital Corp. and
Wood Family Wealth Corporation
Subject:
Claim for payment of expenditures
Patented Mining Claims:
Chester 2 Properties on Young-Shannon
Lands, District of Sudbury (See Schedule “A”)
MLT Case No.:
MA 016-18
MLT Case Name:
IAMGOLD Corporation v. Treelawn Capital Corp.
Heard:
In writing
APPEARANCES:
Parties
Counsel
IAMGOLD Corporation
Neal Smitheman
Vaso Maric
Harry Skinner
Treelawn Capital Corp. and
Martin R. Kaplin
Wood Family Wealth Corporation
Ian Katchin
ORDER OF THE TRIBUNAL DELIVERED BY D. STEPHEN JOVANOVIC
REASONS
1IAMGOLD Corporation and its joint venture partner SMM Gold Cote Inc. (“SMM”), collectively referred to as IAMGOLD, own the majority percentage of the Chester 2 Properties, also known as the Young-Shannon Lands, in the District of Sudbury (as described in the attached Schedule “A”), consisting of freehold and leasehold patents. Treelawn Capital Corp. and the Wood Family Wealth Corporation, collectively referred to as Treelawn, own 7.5% of the Chester 2 freehold and leasehold patents. IAMGOLD and Treelawn also co-own unpatented mining claims on the Chester 2 Properties.
2A dispute arose as to the obligation of Treelawn to pay or reimburse IAMGOLD for expenditures it made over a number of years for the development of the Chester 2 Properties.
3On August 7, 2018, IAMGOLD, filed with the Mining and Lands Tribunal (the “Tribunal”) an application for an Order to Pay against Treelawn, pursuant to s. 181 of the Mining Act (the “Act”). Section181(2) reads as follows:
Where lands or mining rights that are subject to rents or expenditures for development work are held by two or more co-owners and all such rents or expenditures have been paid by one or more of them and the other or others has or have neglected or refused to pay that other’s or those others’ proportion of the rents or expenditures for a period of four or more consecutive years, the Tribunal, upon the application of any co-owner or co-owners who has or have paid the rents or met the expenditures for the period of four or more consecutive years immediately prior to the date of the application and upon the receipt of such other information and particulars as the Tribunal requires, may make an order requiring the delinquent co-owner or co-owners to pay, within three months of the date of the order or such further time as the Tribunal may fix, the delinquent owner’s or co-owners’ fair proportion of the rents or expenditures to the co-owner or co-owners who has or have paid all the rents or expenditures, together with interest at the prescribed percentage rate per year compounded yearly, and such costs of the application as are allowed by the Tribunal.
4Typically, in accordance with the procedure set out in this section, the Tribunal issues the requested order which must be then be served on the co-owner or co-owners. If there is a dispute as to liability to pay or the quantum of the amount of rents or expenditures alleged to be owing, the co-owner or co-owners bring an application to the Tribunal for a hearing under s. 181(4) of the Act which provides as follows:
If a co-owner upon whom an order made under subsection (2) has been served disputes his, her or its liability to another co-owner or otherwise to make any payment under the order or the amount thereof, the co-owner may, within the time limited by the order for making payment, apply to the Tribunal for a hearing and the Tribunal shall, after a hearing, determine the dispute and may affirm, amend or rescind the order or make such other order as it considers just, and, if the Tribunal orders that a payment be made, it may fix the time for payment thereof.
5In this matter, IAMGOLD was initially equivocal as to whether an Order under s. 181(2) should be issued. A Pre-Hearing Conference (“PHC”) was held and the Tribunal issued an Interim Order, dated December 21, 2020, reported as IAMGOLD Corporation v Treelawn Capital Corp., 2020 CanLII 103758 (ON MLT). The Interim Order resolved certain procedural issues and indicated that a hearing under s. 181(4) of the Act could not be held until such time as the parties followed the procedure set out in s. 181. IAMGOLD was directed to advise the Tribunal within 20 days if it was requesting a s. 181(2) Order and if it did not do so, it risked the dismissal of its application. Treelawn was given the opportunity to make additional submissions.
6IAMGOLD delivered submissions dated January 8, 2021 ultimately requesting an Order under s. 181(2) of the Act and attached a draft Order.
7Treelawn delivered its submissions, dated January 27, 2021, indicating for the first time that it was not objecting to the issuance of a s. 181(2) Order subject to the following:
a) On the condition that the procedural steps resolved by way of the Tribunal’s Interim Order be incorporated into the hearing and any subsequent Order of the Tribunal.
b) On the understanding that “this is without prejudice to any position” it may take at the hearing.
8Treelawn objected to the form and content of the draft Order provided by IAMGOLD because, “among other reasons”, it did not refer to the procedural steps set out in the Interim Order and had a paragraph that Treelawn pay costs to IAMGOLD. Treelawn did not explain what “other reasons” it had for objecting to the draft Order.
9IAMGOLD responded to Treelawn’s submissions in a letter dated January 29, 2021, although the Interim Order did not provide for reply submissions. IAMGOLD indicated that it consented to the issuance of the draft Order with the revisions as requested by Treelawn subject to two “important qualifications.” First, that IAMGOLD’s consent was without prejudice to any position it may take at the liability phase of the hearing or the different phases of its application generally. Second, IAMGOLD’s consent should not be taken as an acceptance of any of the submissions made by Treelawn.
10Treelawn is correct in its position that this Order of the Tribunal should refer to the procedural steps agreed to by the parties previously and those additional steps set out in the Tribunal’s Interim Order. The timelines for these steps need to be modified somewhat to take into account the date of this Order. However, the parties are incorrect when Treelawn attempts to attach a “without prejudice” condition to its consent, as IAMGOLD also attempts to do.
11Treelawn’s consent to a s. 181(2) Order is not required. To require the consent of the allegedly delinquent co-owner under s. 181(2) would defeat the operation of s. 181 of the Act. Accordingly, it is in no position to attach any conditions to a consent that is not required or contemplated by s. 181. IAMGOLD is in the same position.
12I do accept the submission of Treelawn that there should be no Order as to costs at this stage of the proceeding. Costs should be determined once the Tribunal has made its ultimate decision as to the liability, if any, of Treelawn to IAMGOLD.
13In my view, two Orders should be issued. One dealing with the procedural issues and a second one being the actual s. 181(2) Order and I will proceed accordingly.
ORDER
14Based on the agreement of the parties, the Tribunal orders the following:
a) Treelawn will be treated as the Applicant for the liability phase of the hearing;
b) before the hearing, the parties shall exchange opening statements (similar to pleadings); and
c) at the hearing,
i. it will be an evidentiary hearing;
ii. the Tribunal will hear viva voce evidence both in-chief and by cross-examination; and
iii. oral closing submissions shall be made at a separate hearing after the evidence in the dispute has been given and a transcript of that evidence has been made available.
15The Tribunal further orders the following:
a) The parties will exchange will say statements of their witnesses, 30 days before the first day of the hearing of the liability portion of this matter.
b) Each party shall be entitled to an oral examination for discovery of one representative of the other party, to be conducted by video conference, such examination to be limited to 7 hours, within 90 days of the date of Treelawn applies for a hearing pursuant to s. 181(4) of the Act, failing any agreement of the parties. The parties shall exchange document briefs 30 days before conducting the examinations. A will say statement from these representatives is not necessary.
c) All documents that a party intends to rely on at the hearing of the liability portion of this matter shall be filed with the Tribunal 30 days before the first day of this hearing.
d) The issue of the costs of this proceeding shall be reserved to the Tribunal conducting the hearing in this matter.
e) An Order pursuant to s. 181(2) of the Act shall be issued coincident with this Order.
f) The Tribunal may conduct a further PHC to deal with any issues that may subsequently arise and to schedule dates for the hearing of this matter.
“D. Stephen Jovanovic”
D. STEPHEN JOVANOVIC
ASSOCIATE CHAIR
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Mining and Lands Tribunal
A constituent tribunal of Ontario Land Tribunals
Website: www.olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248