DATE: 20040324

DOCKET: C40354

COURT OF APPEAL FOR ONTARIO

RE: 798839 ONTARIO LIMITED and JACOBUS N. HANEMAAYER (Applicants (Appellants)) – and – ALL-TERRAIN TRACK SALES & SERVICE LTD., AAVDEX CORPORATION and ANDRE JOSEPH BOUDREAU (Respondents (Respondents))

BEFORE: McMURTRY C.J.O., MOLDAVER and CRONK JJ.A.

COUNSEL: Stephen Lamont For the appellant

Guy A. Wainwright For the respondent

HEARD: March 11, 2004

RELEASED ORALLY: March 11, 2004

On appeal from the order of Justice James M. Farley of the Superior Court of Justice dated June 24, 2003.

ENDORSEMENT

[1] With respect to the learned motions judge, whether he was acting as a commissioner or a court is, in our view, of no moment. If he was acting as a court, then s. 136 of the Mining Act, R.S.O. 1990, c. M.14 applied. If he was acting as a commissioner, then as the respondent fairly concedes, he was obliged under s. 121 of the Act to decide the matter on the real merits and substance of the case.

[2] In fairness to the motions judge, the parties acknowledge that s. 121 of the Act was not drawn to his attention.

[3] In his reasons, the motions judge made it clear that but for his conclusion that s. 136 did not apply, he would have dismissed the application to vacate the certificates. We see no basis for interfering with that aspect of his decision.

[4] Accordingly, we would allow the appeal and set aside the order vacating the certificates. Further, we would confirm the certificates and deem them to have been issued, filed and continued as of September 28, 1992.

[5] In the circumstances, we are of the view that the parties should bear their own costs of the motion and the appeal.

Signed:_____ “R. Roy McMurtry CJO”

_____ “M. J. Moldaver J.A.”

_____ “E.A. Cronk J.A.”