Court File and Parties
Court File No.: CV-18-00604126-0000 Date: 2019-05-17 Ontario Superior Court of Justice
Between: Treelawn Capital Corp. and Wood Family Wealth Corporation, Applicant – and – IAMGOLD CORPORATION, Respondent
Counsel: Ian Katchin and Ronald Davis, for the Applicants Neal Smitheman and Harry Skinner, for the Respondent
Heard: March 6, 2019
Decision
O’Brien, J.
1The Applicants, Treelawn Capital Corp. and Wood Family Wealth Corporation, have brought this application under Rule 14.05 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 seeking to transfer an application commenced before the Mining and Lands Tribunal (the “Tribunal”) to this Court pursuant to s. 107 of the Mining Act, R.S.O. 1990, c. M.14 (the “Act”).
2The Applicants claim that the dispute between the parties relates to patented mining claims and private property and civil rights. They submit that (i) the issues are tangential to mining claims and do not trigger the jurisdiction of the Tribunal; and (ii) the Tribunal does not have jurisdiction over patented claims. The Respondent, IAMGOLD Corporation (“IMG”), submits that the Tribunal has exclusive jurisdiction over the matters in the application before it and, therefore, the application cannot be transferred to this Court. In the alternative, it argues that this Court has concurrent jurisdiction, and the matter should not be transferred.
3In my view, I do not need to decide whether the Tribunal has exclusive jurisdiction over the matters in issue. I am not aware of case law that addresses whether the Tribunal can have exclusive jurisdiction over patented claims and it is not necessary to decide that question here. In my view, the matters at issue in the application before the Tribunal (the “Tribunal Application”) arise from the Act and fall squarely within the Tribunal’s expertise. I conclude that, at a minimum, the Tribunal has concurrent jurisdiction with the Court in this case. Further, given the Tribunal’s expertise in relation to the matters in dispute, the Tribunal Application should not be transferred to Court. For the reasons further set out below, I would dismiss this application.
Overview
4The parties to this dispute have ownership interests in certain land and mining claims in Chester Township, Ontario. The three properties in which both parties have an interest in are known as Chester 1, Chester 2 (which is also known as the Young-Shannon Properties) and Chester 3. These properties comprise a project called the Coté Gold Project. However, the dispute before the Court focuses only on Chester 2.
5The Applicants’ interest in the Chester 2 property derives from the original interest of a predecessor, Treelawn Investment Inc. that subsequently amalgamated with the Wood Family to become “Wood Family Wealth Corporation.” In addition, by virtue of a series of corporate reorganizations and amalgamations, title to the interests in the Chester 2 property was transferred to Treelawn Capital Corp. I will refer to the Applicants as “Treelawn.”
6Ownership of the Chester 2 property is divided between three companies: IMG, SMM Gold Coté Inc. and Treelawn. Treelawn owns a 7.5% interest in the property. The Chester 2 property consists of freehold and leasehold patents, as well as unpatented mining claims. The distinction between patented and unpatented claims is relevant to Treelawn’s position that the Tribunal does not have jurisdiction over disputes regarding patented claims, which is discussed further below. “Patent” is defined in s. 1(1) of the Act to mean “a grant from the Crown in fee simple or for a less estate made under the Great Seal, and includes leasehold patents and freehold patents…” In other words, patented claims are those in which the Crown has granted either a lease or a freehold interest over the claim to a private entity.
7The source of the dispute between the parties from the perspective of IMG is that, since 2012, it has paid for substantial expenditures in connection with the development of the Chester 2 property. It claims that Treelawn has neglected and/or refused to reimburse IMG for Treelawn’s proportionate share of the expenditures. IMG has brought an application to the Tribunal under s. 181 of the Act to address what it considers to be Treelawn’s failure.
8Treelawn’s position is that the parties had an oral agreement to the effect that Treelawn would not be required to contribute in any way to mining-related expenses on the Chester 2 property. Treelawn says that this oral agreement was entered into as a result of discussions in 2009 between the President and CEO of a predecessor to IMG (Trelawney Mining and Exploration Inc.), Gregory Gibson, and the President of Treelawn, Jeff Wood. Treelawn has filed extensive evidence on this Application, which it says supports the existence of an oral agreement. However, in my view, I do not need to decide whether or not an oral agreement exists, nor its terms. My task is to determine whether the allegations of an oral agreement providing that Treelawn was not required to pay expenditures should result in the Tribunal Application being transferred to this Court pursuant to s. 107 of the Act. It will be for the adjudicator of IMG’s claim for contribution to make findings about the alleged oral agreement.
Relevant Provisions of the Mining Act
9IMG brings its Tribunal Application, seeking contribution for expenses, under s. 181(2) of the Act, which provides:
181 (2) 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.
10IMG also relies on s. 181(4) as setting out the appropriate procedure for adjudicating the dispute between the parties:
181(4) 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 the 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.
11Treelawn has brought this application pursuant to s. 107 of the Act, which provides:
107 A party to a proceeding under this Act brought before the Tribunal and involving any right, privilege or interest or in connection with any patented lands, mining lands, mining claims or mining rights, may, at any stage of the proceeding, apply to the Superior Court of Justice for an order transferring the proceeding to that court.
12The jurisdiction of the Tribunal is set out in s. 105 of the Act:
105 (1) No action lies and no other proceeding shall be taken in any court as to any matter or thing concerning any right, privilege or interest conferred by or under the authority of this Act, but every claim, question and dispute in respect of the matter or thing shall be determined by the Tribunal except as otherwise provided in section 171 or elsewhere in this Act and except for matters relating to consultation with Aboriginal communities, Aboriginal or treaty rights or to the assertion of Aboriginal or treaty rights.
(2) In the exercise of the power conferred by this section, the Tribunal may make such order or give such directions as it considers necessary to make effective and enforce compliance with its decision.
Should the matters in the Tribunal Application be transferred to Court under s. 107?
13Although IMG argues that the Tribunal had exclusive jurisdiction over the matters in the Tribunal Application, I will not decide this question. The parties did not provide any cases that consider whether the Tribunal can have exclusive jurisdiction over matters arising under the Act if the matter is related to patented claims. In my view, at a minimum, the Tribunal has concurrent jurisdiction over the matters in issue in this case and the proceeding should not be transferred to the Superior Court.
(a) Can the Tribunal have jurisdiction over patented claims and leasehold interests?
14First, I will address whether the Tribunal can have any jurisdiction at all over patented claims.
15Treelawn submits that the Tribunal cannot have jurisdiction over the matters in dispute because the Tribunal has no jurisdiction over patented claims. Its jurisdiction, according to Treelawn, relates only to unpatented claims. Meanwhile, IMG’s application before the Tribunal relates only to patented claims and leasehold interests. In support of this argument, Treelawn relies only on the following statement made by the Commissioner of the Tribunal in Yozipovic v. Watson, MLT File No. MA-016-07 (May 2012) at p. 29: “The power to make findings concerning patented lands rests with the Superior Court of Justice.”
16In my view, this statement does not support the broad conclusion that the Tribunal has no jurisdiction over all issues relating to patented claims. However, there is some history of courts having exclusive jurisdiction over patented claims. In addition, courts do retain jurisdiction over the forfeiture of patented claims, as set out in the Act. Accordingly, I will examine this issue in more detail.
17Starting with the historical context, the issue of jurisdiction over patented claims is referenced in Dupont et al v. Inglis et al, 1958 SCC 8, [1958] S.C.R. 535. Dupont was a challenge to the constitutional validity of the Tribunal on the ground that the Tribunal, through provincially-appointed Commissioners, was attempting to exercise jurisdiction that s. 96 of what is now the Constitution Act, 1867 reserves to federally-appointed judges. The source of the dispute was an alleged first staking of a mining claim. The Supreme Court of Canada commented as follows at pps. 543-544:
It was contended that several provisions of the Act purported to confer jurisdiction over matters affecting private rights beyond the administration of Crown lands, and ss. 105 and ss. 107 were cited. In the former no action is to be taken in any Court on any “matter or thing concerning any right, privilege or interest conferred by or under the authority of this Act.” Section 118 expressly removes from the jurisdiction of the Commissioner any “power or authority to declare forfeited and void or to cancel or annul any Crown patent issued for lands, mining lands, mining claims or mining rights.” This limits the scope of s. 115 to rights, privileges or interests arising up to the issue of patent. Confirmatory of that is the declaration by s. 66 of the interest of a licensee prior to the issue of a certificate of record as that only of a “licensee of the Crown” in the ordinary sense of the word “licensee,” and after the issue and until patent, “a tenant at will of the Crown.”…. (Emphasis added)
18In Leo Alarie & Sons Ltd. v. Ontario (Minister of Natural Resources) (2000), 136 O.A.C. 81 (C.A.), 2000 ONCA 16850, the Court of Appeal briefly summarized the history of s. 107 of the Act. This history included the following, at paras. 13-15:
Until 1908, the Department of Mines dealt with disputes about mining claims. In 1908, the Legislature amended the legislation to create the position of Mining Commissioner. The jurisdiction to deal with all disputes concerning mining claims was vested exclusively in the Commissioner, a provincially appointed official. The relevant provision of the Mining Act, R.S.O. 1914, c. 32, s. 123 purported to exclude the jurisdiction of the courts. In particular, the Commissioner had jurisdiction and power to determine all claims before the granting of the patent, “As to the existence, validity, or forfeiture of any mining claim, quarry claim, mining lands or mining rights or any right, title or interest therein.”
In 1921, the legislation was amended to expressly give the Commissioner jurisdiction to deal with any disputes arising after the granting of a patent. At the same time, the predecessor to s. 107 was added to the legislation. In McLean Gold Mines Ltd v. Ontario (Attorney General) (1923), 54 O.L.R. 573 (C.A.), 1923 ONCA 486, the Ontario Court of Appeal held that it was ultra vires the province to vest jurisdiction in the Commissioner to determine the validity of the forfeiture of a patented claim. The effect of the legislation was to invest the Commissioner with the powers of a superior court judge in violation of s. 96 of the Constitution Act, 1867.
In response to the McLean Gold Mines Ltd case, the province enacted the Mining Court Act, 1924, S.O. 1924, c. 21 and created the Mining Court. This court was presided over a judge appointed by the federal government, but the judge’s salary was paid by the province. Interestingly, the legislation nevertheless retained the predecessor to s. 107, allowing a party to apply to the Supreme Court of Ontario to transfer a proceeding “involving any right, privilege or interest in or in connection with any patented lands, mining lands, mining claims or mining rights” from the Mining Court to the Supreme Court. [emphasis added]
19After amendments to the Mining Act, the challenge in the Dupont case was brought: Alarie at paras. 16-17. As set out above, the facts in the Dupont case related to a dispute over the validity of a first stake to a mining claim.
20Three related points arise from this history: (1) there has been historical concern about the Tribunal’s jurisdiction to address the validity of title to patented land claims; (2) it is not within the jurisdiction of the Tribunal to determine the validity of the forfeiture of a patented claim; and (3) starting in 1921, the Tribunal has had at least some history in addressing disputes related to patented claims.
21The Act continues to limit the jurisdiction of the Tribunal over Crown patents, at least with respect to declaring forfeited or void any Crown patent issued for lands (see s. 106(1)). However, the Act provides jurisdiction to the Tribunal over patented claims, at least to the extent those claims arise under the issue of expenditures under s. 181, the provision at issue here.
22Section 181(1) defines “co-owner” for the purposes of that section as including a co-lessee. Under section 1(1) of the Act, a “lease” means a leasehold patent. Therefore, when s. 181(2) refers to co-owners, these include co-lessees, including those with patented leasehold claims. This reading makes sense in the context of s. 68 of the Act, which addresses the contribution of co-owners for expenditures related to unpatented claims. It is similar to s. 181(2) but states specifically: “Where two or more persons are the holders of an unpatented mining claim, they shall contribute proportionately to their respective interests…” (emphasis added). If s. 181(2) addressed contributions for expenditures for unpatented claims, s. 68 would be superfluous.
23This reading is consistent with comments in Citadel Gold Mines Inc., MLT File No. MA 002-96 and 020-04 (November 2005). There, Commissioner Kamerman (who also decided the Yozipovic case relied on by Treelawn) commented that s. 181 addressed co-owners of leasehold patents and freehold patents (see pages 32 and 36). The Commissioner’s comments are not incongruent with the statement in Yozipovic relied on by Treelawn (reproduced above). The Commissioner’s comments in the Yozipovic case were made in the context of a provision in an agreement providing for the forfeiture of patented lands. The Commissioner’s comments, in context at p. 29, were as follows:
As far as the continuing applicability of the 2003 Agreement to the former Crown lands is concerned, the tribunal has no jurisdiction to determine whether the terms under which it was made, namely for the purpose of gaining access to a mining claim which forfeit on July 22, 2004, can continue to bind Mr. Watson. The power to make findings concerning patented lands rests with the Superior Court of Justice. Should Mr. Watson wish to pursue having 2003 Agreement and Document vacated from the parcel for the former Crown lands, such decision would have to be made in that forum.
24As set out above, the Tribunal historically has been restricted from addressing the forfeiture of patented claims, and still cannot do so due to s. 106 of the Act. Section 106(1) provides:
106(1) The Tribunal has no power or authority to declare forfeited or void or to cancel or annual any Crown patent issued for lands, mining land, mining claims or mining rights, but every action and every proceeding to declare forfeited or void or to cancel or annul any such Crown patent may be brought or taken in the Superior Court of Justice.
25Given s. 106(1), together with the factual context of the Yozipovic case, I interpret Commissioner Kamerman’s comments to reflect only the fact that the Tribunal does not have jurisdiction to address the validity of the forfeiture of patented claims. This reading is consistent with the Commissioner’s comments in Citadel Mines, and also corresponds with the history of s. 107, described above and with the totality of the Act as it now reads, in which expenditures related to patented claims are addressed in s. 181.
26Therefore, in my view, the Tribunal has at least concurrent jurisdiction with respect to the matters in issue. This conclusion is consistent with the recent decision of Masters v. Cataraqui Region Conservation Authority, 2018 ONSC 7195. There, the Applicants sought to transfer an appeal before the Tribunal to the Superior Court pursuant to s. 107 of the Act. The appeal before the Tribunal related to a refusal by the Authority under the Conservation Authorities Act to grant a permit to the Applicants for a pool house on their property. Justice Glustein found that the appeal did not fall within s. 107, as it was not a proceeding “under this Act [the Mining Act],” as required by s. 107. However, in the alternative, if the court had jurisdiction to transfer the matter to the Superior Court, Justice Glustein concluded that it should not exercise its discretion to do so. In analyzing whether a transfer should occur, at para. 68, he rejected the claim that the transfer should be “as of right” because the proceeding related to patented lands:
For the above reasons, I find that the Applicants do not have a “right” to transfer the appeal to the Superior Court of Justice if s. 107 applies, simply because their claim falls into the “patented lands” category. Rather, adopting the approach in the above case law, I look at the issue before the Tribunal to determine whether a transfer would be appropriate.
27Similarly, in this case, I conclude that the Tribunal has concurrent jurisdiction and the court should consider whether transfer is appropriate. However, before considering whether transfer is appropriate, I will consider Treelawn’s second argument about limits to the Tribunal’s jurisdiction.
(b) Is the Tribunal’s jurisdiction limited because the matters in issue deal with property and civil rights?
28Treelawn further submits that this matter must be transferred to court because it relates to property and civil rights, relying, for example, on the Dupont case. I agree with IMG that the case law is more nuanced than to say a transfer is required if the matter before the Tribunal concerns property and civil rights.
29When a party raises an issue that may be characterized as “property and civil rights,” the party is not entitled to an automatic transfer of the proceeding to court under s. 107. Rather, as with the argument related to patented claims, it is necessary for the court to consider whether transfer is appropriate, taking into account factors such as whether the issue is within the Tribunal’s particular expertise or raises a general issue of law outside of the Tribunal’s expertise. The courts also have considered the more efficient and summary procedure provided by the Tribunal as a factor weighing in favour of the Tribunal assuming jurisdiction.
30The relevant excerpt of the Dupont case reads, at p. 544:
Section 107 contemplates proceedings which involve private civil and property rights and provides that a party may apply for an order transferring the proceedings to the Supreme Court. I should say that once that situation appears an order should go unless the party applying is willing to accept the Commissioner as arbitrator.
31There is no dispute that, where a matter involves solely private property and civil rights and is outside of the Tribunal’s expertise, the matter may be transferred to court. Section 107 has been described as a “safety valve” to protect encroachment of the Tribunal on private civil and property rights: Minescape Exploration Inc. v. Bolen (1998), 39 O.R. (3d) 205 (Gen. Div.), 1998 ONSC 14683 at p. 212. However, as set out in Masters at para 54, there is no entitlement to a transfer as of right when the matter does not raise a general issue of law outside the Tribunal’s expertise. Instead, s. 107 is directed at cases not within the Tribunal’s specialized knowledge. According to Masters, at para. 56, “…the ‘safety valve’ of s. 107 …exists to ensure that matters of private civil and property rights law which are outside the specialized knowledge of the Tribunal can be transferred easily and ‘should go’ unless ‘the party is willing to accept the [Tribunal] as arbitrator (Dupont, at p. 544).”
32Given that there is no automatic right of transfer, as in the Masters case discussed above, I will now turn to the question of whether transfer is appropriate in the circumstances of this case.
(c) Is a transfer to the Superior Court appropriate in the circumstances of this case?
33In my view, the matters at issue fall squarely within the expertise of the Tribunal and there are no compelling reasons to transfer the Application to the Superior Court.
34Section 105 of the Act grants the Tribunal broad jurisdiction over matters covered by the Act, using expansive language: “No action lies and no other proceeding shall be taken in any court as to any matter or thing concerning any right, privilege or interest conferred by or under the authority of this Act, but every claim, question and dispute in respect of the matter or thing shall be determined by the Tribunal, except as otherwise provided…” (emphasis added).
35Here, the matters in dispute relate directly to a “right, privilege or interest” conferred by the Act. That is, s. 181(2) expressly and specifically addresses how co-owners of land or mining rights are to address rents or expenditures. It provides, in short, that a co-owner to land or mining rights may apply to the Tribunal for proportionate contribution to those expenditures by another co-owner and provides an efficient procedure for doing so.
36Treelawn argues that s. 181(2) does not apply to its situation, since, due to the alleged oral agreement, it has no obligation whatsoever to pay rents or expenditures with respect to the Chester 2 property. The problem with this argument is that s. 181(4) provides it with a procedure to raise this objection. That is, where a co-owner (here Treelawn) disputes its liability to pay expenditures (as Treelawn does here), it can apply to the Tribunal for a hearing to determine the issue. In other words, Treelawn can request a hearing before the Tribunal and raise all of its evidence about the oral agreement. [1] While s. 181(4) does not enumerate the arguments that would limit or eliminate a co-owner’s liability, I find that particular contractual terms between the parties would be an available defence. Far from being “incidental” to a mining dispute, as argued by Treelawn, a defence to claim expenditures for the development of a mining property is directly provided for in the Act.
37Counsel for Treelawn also submits that Treelawn and IMG had “contracted out” of s. 181(2) by their oral agreement. In effect, Treelawn submits that one of the terms of the agreement was that it would not pay its proportionate share of expenses. In my view this is one of the arguments s. 181(4) is designed to address. There is no distinction in the present case between “contracting out” of a requirement to pay expenditures and defending against a claim for payment of expenditures by raising a contractual defence. Even if it were possible for a party to “contract out” of the Tribunal’s jurisdiction (an issue which I do not decide), that issue does not arise in the present case. In any event, the Tribunal is capable of determining its own jurisdiction, and indeed has superior expertise in doing so, as this would involve an interpretation of its home statute: Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654 at paras. 33-34.
38Not only is the issue of contribution for expenditures directly provided for in the Act, it also engages the Tribunal’s expertise. It relates to the relationship and obligations between co-owners in the particular context of developing mining properties. Treelawn’s position is that the alleged agreement is about whether it had any obligation to contribute to “mining-related costs or expenses on the Young-Shannon Properties, including exploration, development, operations and management costs” (paragraph 25 of Treelawn’s factum). Further, it contends that the terms of the alleged oral agreement were reflected in option agreements entered into between the parties regarding the Chester 1 and Chester 3 properties. Its interest was, it says, a “free carried interest.” These are terms and arrangements that are specific to the mining context and, in particular, to arrangements related to several mining developments. These issues are well-suited to the Tribunal’s expertise.
39On a related note, the remedy for a breach under s. 181(2) of the Act is, as set out in s. 181(5), an order vesting the interest of the “delinquent owner or co-owners” in the lands or mining rights to which the payment relates in the co-owner who has paid the expenditures. Again, this is a remedy that the Tribunal, and not necessarily the court, is well-positioned to implement.
40Finally, numerous court cases have recognized the benefit of allowing proceedings to continue before the Tribunal due to the efficiency of proceeding in that manner. In Alarie at para. 19, the Court of Appeal adopted the comments of the Supreme Court of Canada in Dupont to this effect, stating: “It is preferable that this tribunal, rather than the court, determine issues within its jurisdiction” and then quoting the following from Dupont at p. 541:
The adjudications by the recorder and the Commissioner are not to be treated in isolation; the special elements of experienced judgment and discretion are so bound up with those of any judicial and ministerial character that they make up an inseverable entirety of administration in the execution of the statute. To introduce into the regular Courts with their more deliberate and formal procedures what has become summary routine in disputes of such detail would create not only an anomalous feature of their jurisdiction but one of inconvenience both to their normal proceedings and to the expeditious accomplishment of the statute’s purpose. (emphasis added)
41It would not be appropriate to transfer the Tribunal Application in this case, given that the application is directly reliant on a provision and procedure set out in the Act. The Tribunal has the expertise to deal with this matter and a specific procedure for doing so.
42Treelawn has relied on Minescape and Temex Resources Corp. v. Walker, 2014 ONSC 4753 in support of its position that the courts show a strong readiness to assume jurisdiction over matters that are not true mining issues. In my opinion, those cases, and others relied on by Treelawn, are distinguishable. Temex involved mining claims that had been addressed in divorce proceedings in Nevada. The court found that a transfer of proceedings was appropriate because “at its core, the matter is one of private and civil rights arising from the Walkers’ family law proceedings in Nevada. The effect of the mining claims in Ontario is only incidental to that”: para. 91. Further, there, the Commissioner had recognized a foreign judgment from Nevada. The court questioned the Tribunal’s jurisdiction to do so and stated that “foreign judgments are usually enforced by proceedings in domestic courts of competent jurisdiction….”: para. 98. That case clearly involved general legal issues not within the Tribunal’s jurisdiction and expertise.
43Minescape related to a written agreement between the parties dealing with issues related to developing unpatented mining claims, including incorporating a company to operate the mine, payment of royalties, allocation of shares of the mining company, and secrecy and non-disclosure of information related to the agreement. The “pleadings” before the Tribunal were similar to a claim, Statement of Defence, Counterclaim and Reply. The legal issues included whether the agreement was void for uncertainty, whether it was void for failure to provide consideration, whether it had been fundamentally breached, whether confidential information was misappropriated and whether a constructive trust was imposed with respect to claims at issue in the proceedings.
44The difference in Minescape is that the proceedings before the Tribunal were not reliant on rights or interests conferred under the Act. Although the claim was related to mining, the legal issues were general issues of law and did not involve an interpretation of provisions of the Act.
45Although Treelawn has suggested that a transfer of this proceeding to this Court would avoid a multiplicity of proceedings and may avoid a limitation period, these arguments, in the context of this case, are not sufficient in my opinion to outweigh the fact that matters in dispute lie at the core of the Tribunal’s expertise.
46With respect to the alleged multiplicity of proceedings, Treelawn provided only a draft Statement of Claim, which has not been issued and may never result in an additional proceeding.
47With respect to the limitation period, Treelawn argues that there is a juridical advantage to it if the proceeding is transferred to the Superior Court because of the two-year limitation period provided in the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B. IMG’s claim dates back to 2012. It is not clear to me how the Limitations Act would impact an analysis of s. 181, as s. 181(2) provides that the co-owner is to apply for contributions after they have “paid the rents or made the expenditures for a period of four or more consecutive years immediately prior to the date of the application….” If the two-year limitation period starts to run from the end of the four years, IMG’s claims might not be limited based on the timing in this case. However, this issue was not fully argued before me.
48In the circumstances of this case, where the matters at issue fall at the core of the Tribunal’s expertise, neither the undeveloped limitations argument, nor the possibility of a future civil claim, are sufficient to convince me that it is appropriate to transfer this case to the Superior Court.
Costs
49The parties provided me with costs outlines shortly after the completion of the hearing. This was a full-day application, with prior cross-examinations. The case law is somewhat complex. The totals of the parties’ bills of costs are almost the same. The successful party, IMG, has claimed costs on a partial indemnity basis of $54,393.61. I will reduce this amount slightly, as I do not think it was necessary for IMG to claim the costs of three counsel to attend the hearing for 8 hours. I order, therefore, that Treelawn pay costs in the amount of $50,000 to IMG.
O’Brien, J.
Released: May 17, 2019
Footnote
1I understand that s. 181(2) is intended as a summary and efficient procedure that occurs in writing, when there is little dispute about the obligation to pay. However, if the responding party disputes its obligation to pay, it can apply under s. 181(4) and that is when a full hearing on the merits can then occur.