Leo Alarie and Sons Limited et al. v. The Queen in Right of Ontario as represented by the Minister of Natural Resources et al. [Indexed as: Leo Alarie & Sons Ltd. v. Ontario (Minister of Natural Resources)]

48 O.R. (3d) 204

[2000] O.J. No. 1067

Docket Nos. C32881 and M25226

Court of Appeal for Ontario

Morden, Abella JJ.A. and O'Driscoll J. (ad hoc)

April 3, 2000

Appeal -- Jurisdiction -- Final or interlocutory order -- Order transferring statutory proceeding under Mining Act to Superior Court constituting final order -- Court of Appeal having jurisdiction to hear appeal from that order under s. 6(1)(b) of Courts of Justice Act -- Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(1)(b) -- Mining Act, R.S.O. 1990, c. M.14, s. 107.

The respondents successfully applied under s. 107 of the Mining Act for an order transferring a statutory proceeding under that Act to the Superior Court of Justice. The appellants appealed. The respondents brought a motion to quash the appeal on the ground that it was from an interlocutory order and, therefore, not within the jurisdiction of the Court of Appeal under s. 6(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43, which confers the right of appeal from final orders only.

Held, the motion should be dismissed.

The order in question was final. While the order did not determine the underlying dispute between the parties relating to the priority of claims to the land in question, it did determine the real matter in dispute between the parties in that it determined the matter in dispute in the proceeding in which it was made, that is, whether the statutory proceeding should be transferred to the court.

MOTION to quash an appeal.

Buck Bros. Ltd. v. Frontenac Builders Ltd. (1994), 1994 2403 (ON CA), 19 O.R. (3d) 97, 117 D.L.R. (4th) 373, 34 C.P.C. (3d) 76 (C.A.); Hendrickson v. Kallio, 1932 123 (ON CA), [1932] O.R. 675, [1932] 4 D.L.R. 580 (C.A.), consd McEnaney (Re), [1949] O.W.N. 755 (C.A.), not folld Other cases referred to Newcombe v. Evans (1916), 1916 571 (ON CA), 37 O.L.R. 354, 31 D.L.R. 315 (C.A.) Statutes referred to Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(1)(b) Mining Act, R.S.O. 1990, c. M.14, s. 107 Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 1.03 "judgment", "proceeding"

Peter J. Doucet, for moving parties. Guy A. Wainwright, for respondents.

The judgment of the court was delivered by

[1] MORDEN J.A.: -- The respondents in this appeal move to quash the appeal on the ground that it is from an interlocutory order and, therefore, not within this court's jurisdiction under s. 6(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43, which confers the right of appeal from final orders only.

[2] The order in question was made by Boissonneault J. on an application made by the respondents in this appeal under s. 107 of the Mining Act, R.S.O. 1990, c. M.14. This provision reads:

107. A party to a proceeding under this Act brought before the Commissioner 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.

[3] Boissonneault J. ordered that a proceeding between the parties to this appeal under the Mining Act be transferred to the Superior Court of Justice. While the particular nature of the issue under that statute is not material to the issue on this motion, I mention that it involves whether the mining claims which the respondents had staked are subject to an aggregate permit relating to the same area issued to the appellants by the Ministry of Natural Resources.

[4] In my view, Boissonneault J.'s order is final. I think that the issue is completely resolved by the decision of this court in Buck Bros. Ltd. v. Frontenac Builders Ltd. (1994), 1994 2403 (ON CA), 19 O.R. (3d) 97, 117 D.L.R. (4th) 373, which analyzed the leading case of Hendrickson v. Kallio, 1932 123 (ON CA), [1932] O.R. 675, [1932] 4 D.L.R. 580 (C.A.), and concluded that, because the appeal before it was from an order made at the conclusion of an application, i.e., a "proceeding" as defined in the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, it was a final order for the purposes of an appeal. This is said in more than one way in Buck Bros. but, for present purposes, I refer simply to the following at p. 101:

Despite its particular form, the order of Sutherland J. is the final judgment of the court, the final declaration of the rights of the parties, in a proceeding commenced by the notice of application from which I have quoted. Subject to an appeal from this order, this proceeding is finally determined. There is no further issue in it that remains to be decided.

[5] This describes the present case. The order of Boissonneault J. finally decided the issue in the proceeding brought before him -- whether the statutory proceeding under the Mining Act should, or should not, be transferred to the Superior Court of Justice. The proceeding commenced in the Superior Court of Justice by the respondents, was a free- standing court proceeding that was begun and concluded in the Superior Court of Justice. The order made, which enabled the statutory proceeding to be continued in the court as a court proceeding, was a "judgment" as this word is defined in rule 1.03 of the Rules of Civil Procedure, "a decision that finally disposes of an application or action on its merits."

[6] The moving parties submitted that this case is different from Buck Bros. in that the result of the order in this case is that there is a proceeding which is continuing in the court, whereas in Buck Bros. the result of the order under appeal was that the dispute between the parties was to continue in another forum. With respect, I do not think that this bears upon the essential reasoning in Buck Bros.

[7] It is true that, to refer to a key passage in Hendrickson v. Kallio, Boissonneault J.'s order "does not determine the real matter in dispute between the parties" if this is intended to refer to the underlying dispute relating to the priority of claims to the land in question. But, as Buck Bros. holds, it is intended to refer to the matter in dispute in the proceeding in the court, i.e., whether the statutory proceeding should be transferred to the court.

[8] The respondents rely on the judgment of this court in Re McEnaney, [1949] O.W.N. 755, which held that an order made by a Supreme Court judge removing proceedings into the Supreme Court from the Surrogate Court under s. 28 of the Surrogate Court's Act, R.S.O. 1937, c. 106, was an interlocutory order. It appears that this order was made on an originating motion, the precursor of the present application. The report of the case does not indicate the reasons for the court's conclusion other than the following statement at p. 756:

At the conclusion of the argument, The Court delivered judgment orally, quashing the appeal, with costs of the motion, on the ground that the order was interlocutory and discretionary, and that no appeal lay without leave.

[9] This decision, which was not brought to the attention of the court in Buck Bros., clearly supports the respondents' position. However, because its underlying reasoning is far from clear and because it is contrary to Buck Bros. and the reasoning in the cases cited therein as well as the implicit conclusion of the earlier decision of this court in Newcombe v. Evans (1916), 1916 571 (ON CA), 37 O.L.R. 354, 31 D.L.R. 315 (C.A.) which was cited to the court in McEnaney, I am satisfied that we should not follow it. In Newcombe v. Evans, the Court of Appeal heard an appeal from an order dismissing an application to remove proceedings from the Surrogate Court to the Supreme Court, without comment on its jurisdiction to do so.

[10] For these reasons I would dismiss this motion with costs.

Motion dismissed.