COURT OF APPEAL FOR ONTARIO
2016 ONCA 145
DATE: 20160224
DOCKET: C59945
Strathy C.J.O., LaForme and Huscroft JJ.A.
BETWEEN
2274659 Ontario Inc.
Applicant (Respondent)
and
Canada Chrome Corporation
Respondent (Appellant)
and
Minister of Northern Development and Mines
Intervener
Neal Smitheman, for the appellant
Paul Schabas, Robin Linley and Iris Antonios, for the respondent
John Kelly and Michael Burke, for the intervener
Heard: November 25, 2015
On appeal from the judgment of the Divisional Court (Justices David Aston, Michael R. Dambrot and Katherine E. Swinton), dated October 24, 2014, with reasons reported at 2014 ONSC 4446, 324 O.A.C. 116, setting aside the order of the Ontario Mining and Lands Commissioner, dated September 10, 2013.
Strathy C.J.O.:
“Mining is the art of exploiting mineral deposits at a profit. An unprofitable mine is fit only for the sepulchre of a dead mule”: T.A Rickard, The Romance of Mining (Toronto: MacMillan Co., 1944).
[1] The same might be said of an inaccessible mine.
[2] This appeal sees two mining companies fighting over access to valuable chromite deposits in northern Ontario.
A. background
[3] The parties have interests in separate chromite deposits in the “Ring of Fire” in northern Ontario. Access is a big problem. Each wants to build a transportation link. It will cost hundreds of millions of dollars, perhaps a billion or two. One solution would be to share the route and the cost. The appellant did not want to do that. It wanted to control the access.
[4] In 2009 the appellant staked more than two hundred mining claims along a 340-kilometre corridor of high ground northward from the CN rail line at Exton, Ontario, to a location near its “Big Daddy” deposit. It wanted to use the surface of these claims to build a railway to access and develop Big Daddy. It entered into a shareholder agreement with the respondent, a larger mining company, to secure the necessary investment to develop Big Daddy.
[5] Around 2010, the respondent, which by then had majority ownership of Big Daddy, acquired ownership of the nearby “Black Thor” deposit. It decided to develop Black Thor, rather than Big Daddy. Without the respondent’s backing, the appellant, a junior mining company, could not develop Big Daddy on its own.
[6] The respondent wants to build a publicly-accessible road leading to its proposed mine. The road would cross 108 of the appellant’s claims. To obtain the right to build on those claims, the respondent applied to the Minister of Natural Resources under s. 21 of the Public Lands Act, R.S.O. 1990, c. P.43, for a disposition of the surface rights over portions of the appellant’s claims. It also sought an easement over Crown lands to permit it to build the road.
[7] The respondent asked the appellant to consent to an easement. When the appellant refused, the Minister of Natural Resources referred the application to the Mining and Lands Commissioner (MLC) under s. 51(2) of the Mining Act, R.S.O. 1990, c. M.14 (the Act).
[8] The MLC dismissed the application, and the respondent appealed as of right under s. 133 of the Mining Act. The Divisional Court allowed the appeal, finding the MLC’s decision, and its interpretation of the Act, were unreasonable. Rather than remit the matter to the MLC, the Divisional Court made an order dispensing with the appellant’s consent.
[9] The appellant appeals the Divisional Court order and asks that we reinstate the order of the MLC. For the reasons that follow, I would dismiss the appeal.
B. Issues on the appeal
[10] The appeal raises questions of statutory interpretation on the one hand and the application of a statutory standard on the other. The statutory interpretation issues are (a) what are the statutory rights of a mining claim holder in the surface of the claim? and (b) what priority, if any, does the holder enjoy over others who want to use the surface for other purposes?
[11] The application of the statutory standard requires a determination of whether the respondent’s proposed use would interfere with the appellant’s exploration and mining activities on its claims. This determination takes place against the backdrop of the legislative purpose, discussed below, of encouraging the multiple use of surface rights on mining lands.
C. Statutory Provisions
[12] The statutory interpretation issues centre on ss. 50 and 51 of the Act, as in force at the time of the dispute, which come under the heading “Rights of Licensee”.[^1]
[13] Subsections 50(1) and (2) set out the rights attached to a mining claim. A “mining claim” is defined in s. 1 as “a parcel of land, including land under water, that has been staked and recorded in accordance with the Act and the regulations.”
[14] Under s. 50(1), staking a claim confers only the right to perform the assessment work prescribed by the Act or to obtain a lease from the Crown. It does not confer any other right, title or interest in the mining claim. Staking confers no right to take or remove any minerals found in the claim. Subsection 50(1) states:
The staking or the filing of an application for or the recording of a mining claim, or the acquisition of any right or interest in a mining claim by any person or all or any of such acts, does not confer upon that person,
(a) any right, title, interest or claim in or to the mining claim other than the right to proceed as is in this Act provided to perform the prescribed assessment work or to obtain a lease from the Crown and, prior to the performance, filing and approval of the first prescribed unit of assessment work, the person is merely a licensee of the Crown and after that period and until he or she obtains a lease the person is a tenant at will of the Crown in respect of the mining claim; or
(b) any right to take, remove or otherwise dispose of any minerals found in, upon or under the mining claim.
[15] Subsection 50(2) deals with the extent of the claim holder’s right to use the surface. It permits the holder to enter and use the part or parts of the surface of land that are “necessary” for the purpose of prospecting and development of the mines, minerals and mining rights therein. Subsection 50(2) reads:
The holder of a mining claim does not have any right, title or claim to the surface rights of the claim other than the right, subject to the requirements of this Act, to enter upon, use and occupy such part or parts thereof as are necessary for the purpose of prospecting and the efficient exploration, development and operation of the mines, minerals and mining rights therein.
[16] “Surface rights” are defined in s. 1 as “every right in land other than the mining rights.”
[17] Subsection 51(1) deals with the priority of the holder of an “unpatented mining claim” to use the surface rights for prospecting and the efficient exploration, development and operation of the mines, minerals and mining rights. “Unpatented”, when referring to land or mining rights, is defined in s. 1 as land or mining rights for which there is no patent or lease or other form of Crown grant in effect. Subsection 51(1) reads:
Except as in this Act is otherwise provided, the holder of an unpatented mining claim has the right prior to any subsequent right to the user of the surface rights, except the right to sand, peat and gravel, for prospecting and the efficient exploration, development and operation of the mines, minerals and mining rights.
[18] The balance of s. 51 deals with the process when there is a request for disposition of surface rights under the Public Lands Act. If the holder of an unpatented mining claim does not consent to such a disposition, s. 51(4) [now s. 51(2)] provides a mechanism for dispensing with consent after a reference to and hearing by the MLC.
D. Reasons Below
(a) Mining and Lands Commissioner
[19] The MLC found that s. 51(1) and not s. 50(2) applied to the appellant’s claim. In its view, the two provisions dealt with different claims and different types of land.
[20] First, it held that s. 50(2) described the surface rights of a “mining claim”, while s. 51(1) addressed the surface rights of an “unpatented mining claim”. Since the appellant’s claim was unpatented, s. 50(2) did not apply.
[21] The appellant had not made this submission to the MLC and the appellant acknowledged before the Divisional Court that the interpretation was erroneous – an “unpatented mining claim” is a subset of a “mining claim” and s. 50(2) applies to both.
[22] The second distinction made by the MLC was based on the ownership of the land. It found that s. 50(2) applied to lands that were privately-owned, while s. 51(1) applied to lands owned by the Crown. The use of the word “therein” in s. 50(2) limited the rights of the claim holder on privately-owned land to certain “part or parts” of the surface.
[23] But, said the MLC, the rights of the claim holder on publicly-owned land are not so limited. Because s. 51(1) does not contain the word “therein”, it gives the claim holder a prior right to use the surface for all activities covered by the Act.
[24] The MLC therefore concluded that the focus of the hearing was the interpretation of s. 51, having regard to the Act as a whole. Section 50(2) did not enter into the analysis of whether consent should be dispensed with under s. 51. Nor could it limit the use of the surface by the holder of an unpatented mining claim on Crown land.
[25] Accordingly, in the view of the MLC, the purpose for which the appellant wanted to use the surface of its claims did not have to be related to the “exploration, development and operation of the mines, minerals and mining rights therein.”
[26] Since the Act did not say anything definitive about the uses that the holder of an unpatented mining claim could put to the surface, the MLC was not prepared to say that the use was limited to the development of a mine.
[27] The MLC recognized the public interest in the multiple use of lands, and held that each party bore an onus of showing how their rights would be affected by the outcome. The MLC found that granting an easement to the respondent to develop a road over the site of the proposed railway line would negatively affect the development of the appellant’s mining claims. In its view, it was not possible to balance the parties’ rights and thus the appellant should not be forced to share its right to use the surface.
(b) Divisional Court
(i) Sections 50 and 51
[28] The Divisional Court noted that the MLC was a specialized body that dealt with mining issues. It identified the appropriate standard of review as one of reasonableness.
[29] The Divisional Court found that the MLC’s interpretation of the Act was unreasonable and that it reached an unreasonable decision in refusing to dispense with the appellant’s consent. The MLC made an unwarranted distinction between the surface rights of mining claim holders based on whether the land was privately-owned or Crown land. That distinction was inconsistent with the Act and with the purpose of s. 51(1).
[30] Section 50(2), the Divisional Court held, is the source of surface rights of all claim holders. It is not limited to surface rights that are privately-owned. It applies to all mining claims, including mining claims that have not been taken to patent. These surface rights are restricted to the parts of the land necessary for mining activities on the claim.
[31] The Divisional Court noted that s. 51 has two functions. First, it grants a limited priority to the unpatented claim holder to use the surface (other than the right to sand, peat and gravel) over the subsequent rights of others to use the surface. That priority is not for all purposes. It is for the purpose of prospecting and exploring and developing mines, minerals and mining rights on the claim itself. Second, the section provides a dispute resolution mechanism when there are competing claims to the use of surface rights.
[32] The Divisional Court explained that s. 51(1) does not confer on the holder of an unpatented claim additional surface rights, beyond those conferred in s. 50(2). Instead, it confers priority to the claim holder to use the limited surface rights provided by s. 50(2).
[33] In its view, the different purposes of ss. 50(2) and 51(1) explain the absence of reference to “therein” in s. 51(1), an omission that the MLC found significant. Section 51(1) does not contain a restriction to mineral prospecting “therein” – that is, in the claims themselves – because the source of the claim holder’s surface rights is s. 50(2).
[34] The MLC’s misinterpretation of ss. 50 and 51 gave surface rights to holders of unpatented mining claims that could be exercised for any purpose tied to mining activities anywhere – rather than on the lands that were the subject of the claim. This, the Divisional Court held, was not consistent with the statute.
(ii) Sharing of Surface Rights under s. 51 – Interference
[35] Next, the Divisional Court turned to the question whether the appellant’s surface rights on its claims should be shared with the respondent. It agreed with the MLC that each party had an evidentiary onus to establish whether multiple uses of the surface rights were possible. It found that the MLC erred in law, however, by requiring the respondent to lead evidence of a public interest in its proposed use. The public interest in multiple uses of Crown lands was a given.
[36] The Divisional Court noted that s. 51(1) gives priority to the claim holder to use the surface rights to explore and exploit minerals on the claims. The appellant’s proposed railway was not planned to develop the mining claims, but instead to provide a transportation corridor to permit the development of a mineral deposit far removed from the location of the claims. It was unreasonable then, in its view, for the MLC to have considered whether the respondent’s proposed easement to build a road would interfere with the appellant’s plan to build a railway. The appellant was not entitled to claim a priority for that project under s. 51(1).
[37] In an issue that assumed some importance in the submissions before this court, the Divisional Court noted that there was some suggestion in argument that the definition of “mine”, which includes “ways and works”, could include a railway. The Divisional Court concluded that the appellant’s proposed railway was not to be used to extract minerals from the claims themselves. Therefore, it was not a use for which the appellant could claim priority under s. 51(1).
[38] The Divisional Court held that it was unreasonable for the MLC to find that the proposed easement would interfere with the appellant’s exploration for minerals on the claims in question. The evidence, it said, did not reasonably support a finding of interference with the appellant’s plan to extract aggregate or diamonds on the claims, assuming those minerals were found.
(iii) Remedy
[39] The Divisional Court set aside the MLC’s decision and dispensed with the appellant’s consent. It concluded that the exceptional circumstances of this case militated against the usual remedy of remitting the matter for reconsideration by the MLC.
[40] The Divisional Court accepted the respondent’s submission that it should dispose of the application because there was, on the evidence, only one reasonable outcome. While this required a more extensive analysis of the evidence than usual, and would “bypass the expertise” of the tribunal, a narrow focus on the relevant evidence led to this conclusion.
[41] This was because the appellant had not established that the proposed easement would interfere with mining activities on the claims to such a degree that multiple uses of Crown lands were not possible. The appellant’s main objective in staking the claims was to gain control of a transportation corridor where it might eventually build a railway. Its priority to the use of the surface rights of its claims did not allow it to control the surface of the land for that purpose.
[42] The Divisional Court also noted that there were only three members of the tribunal, two of whom had sat on the matter and had expressed frustration with the respondent’s conduct on a number of occasions. It held that fairness required that the matter proceed before a differently constituted tribunal. However, if the matter were remitted to the MLC, there might be only one commissioner able to hear it.
[43] The Divisional Court concluded that the only appropriate disposition was to dispense with the appellant’s consent under s. 51(5) and leave it to the Minister to decide, in the next stage of the process, whether an easement should be granted to the respondent in the public interest, and on what terms. The appellant would have an opportunity to participate at that stage and to request terms to protect its legitimate interest in its mining claims.
E. Analysis
(a) Standard of Review
(i) Divisional Court
[44] The Divisional Court recognized that the MLC is a specialized body with expertise in mining issues and familiarity with the Act. The nature of the statutory interpretation question is such that it should be reviewed on a reasonableness standard, as this court held in Ontario (Minister of Transportation) v. 1520658 Ontario Inc., 2011 ONCA 373, 105 O.R. (3d) 321, at paras. 16-35.
[45] Following Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 47, the Divisional Court correctly held, at para. 20, that this standard “requires the reviewing court to consider ... whether the decision falls within a range of possible, acceptable outcomes which are defensible, given the facts and applicable law.”
[46] The question for the Divisional Court to ask then was not whether the MLC’s interpretation of the Mining Act was correct, but whether the MLC’s interpretation was one the statute could reasonably bear. Although this was the standard initially set out by the Divisional Court, its analysis unfortunately used the language of correctness at times, in responding to arguments about whether the MLC erred in law.
[47] Overall, however, I take the Divisional Court’s reasons as holding that the MLC’s statutory interpretation was unreasonable. In the course of deciding whether the MLC’s interpretation was one that the legislative text could reasonably bear, the Divisional Court was entitled to, and did, conduct its own statutory analysis. This was the approach taken by the Supreme Court of Canada in British Columbia (Securities Commission) v. McLean, 2013 SCC 67, [2013] 3 S.C.R. 895, at paras. 37-70; and in Canada (Canadian Human Rights Commission) v. Canada (A.G.), 2011 SCC 53, [2011] 3 S.C.R. 471, at paras. 32-64.
(ii) This court
[48] The standard of review to be applied in an appeal from the Divisional Court on its interpretation and application of the Act is correctness: Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25, [2011] 2 S.C.R. 306, at para. 23; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8-9. That means this court must scrutinize whether the Divisional Court correctly found that the MLC’s decision was unreasonable. The standard of review by this court as to the Divisional Court’s own choice of standard of review is also correctness.
[49] On remedy, the Divisional Court’s decision to substitute its own decision on the basis that there was only one reasonable outcome involved the application of a legal standard to a set of facts. It was a question of mixed fact and law, reviewable on a standard of palpable and overriding error: Housen, at paras. 26, 36-37; Telus Communications Inc. v. Telecommunication Workers Union, 2014 ABCA 199, 575 A.R. 325, at para. 34.
(b) Interpretation of ss. 50 and 51
[50] I agree that the interpretation given to ss. 50(2) and 51(1) by the Divisional Court – as summarized above and set out in detail in its reasons at paras. 34 to 56 – is the only reasonable interpretation of those sections. Those sections make no distinction between public and private lands, and the MLC’s decision offers no basis for drawing such a distinction. The Divisional Court was then correct to apply its interpretation to its review of the MLC’s decision – when there is only one reasonable interpretation, the tribunal must adopt it in any event: McLean, at para. 38.
[51] Subsection 50(1) sets out the rights of the holder to use the surface of the claim for defined purposes related to the mining claim.
[52] Section 51 gives the holder a limited priority to use the surface of the claim, for the purposes set out in s 50(2), over the subsequent rights of others to use the surface.
[53] The Divisional Court properly considered the legislative history and purpose of these provisions. Prior to 1957, the holder of a mining claim could obtain both mining rights and surface rights, simply by staking a claim and carrying out the prescribed assessment work. This gave rise to concerns that public lands could be alienated from the Crown forever. In 1957, the Mining Act was amended to permit the Crown to reserve, in a patent or lease, all surface rights necessary for any purpose other than mining, that were not essential to the development of the mines, minerals and mining rights. At the same time the predecessor to the present s. 50(2) was added to the statute: Mining Amendment Act, 1957, S.O. 1957, c. 71, ss. 5, 9. As noted in the Report of the Public Lands Investigation Committee, 1959, (published 1961) the purpose of the latter amendment was to encourage the multiple use of the surface rights on mining lands.
[54] The limited priority conferred by s. 51 therefore protects the multiple use principle through the dispute resolution procedure contained in s. 51(4) and following [now s. 51(2) and following]. The priority is for the purpose of prospecting and exploring and developing mines, minerals and mining rights. Section 51(1) does not confer additional surface rights beyond those conferred by s. 50(2).
[55] The MLC’s exclusion of s. 50(1) from the interpretive exercise led it to conclude that the word “therein” in s. 50(1) was inapplicable to unpatented mining claims covered by s. 51(4). Taken to its logical result, the surface rights of claim holders on Crown land could be exercised for any purpose that could be tied to mines, minerals or mining rights anywhere. In contrast, the two sections must be read together to give effect to the legislative purpose of encouraging multiple uses of surface rights.
[56] As the Divisional Court concluded, at paras. 55 and 56:
Thus, there is no restriction in s. 51(1) to mineral prospecting and exploration "therein", meaning the claims themselves, because the source of the mining claim holder's rights to use the surface is found in s. 50(2). Subsection 51(1) is dealing with priorities. It gives priority to an unpatented mining claim holder to use the surface rights recognized in s. 50(2) in relation to subsequent users. That priority is to allow exploration and development of the particular mining claim that the unpatented claim holder seeks to develop.
In conclusion, the MLC adopted an unreasonable interpretation of s. 50(2) when it held that the restrictions on surface rights found in s. 50(2) did not apply to unpatented mining claims on Crown land. Consequently, its interpretation of s. 51(1), as conferring broader surface rights to unpatented mining claim holders on Crown lands, was also unreasonable and unjustified by the language of the Act.
[57] I turn now to consider the definition of “mining” or “mine”.
(c) “Mining” or “mine”
[58] In s. 1 of the Act, a “mine” includes “all ways, works, machinery, plant, buildings and premises below or above the ground relating to or used in connection with” a mine.
[59] In my view, the Divisional Court was correct to hold that it was unreasonable for the MLC to have considered whether the proposed easement to build a road would interfere with the appellant’s plan to build a railway because the appellant could not claim priority for that project under s. 51(1).
[60] Likewise, the only reasonable interpretation of the Act is to read it as meaning that a proposed railway is not a “mine”. The surface rights of the holder are limited to the parts necessary for prospecting, exploration and mining “therein” – that is, in the claims themselves, not in claims at a distant location.
[61] My conclusion is not affected by the appellant’s submission concerning s. 175 of the Act. That provision permits the owner, lessee or holder to obtain from the MLC after a hearing, rights of passage over other lands for the purpose of its operations. The appellant submits that if it is entitled to obtain an easement for passage over property in which it has no interest, it must be able to construct the railway to complete the link.
[62] This submission was raised for the first time in oral argument before this court and not made to either the MLC or the Divisional Court. I do not find it persuasive. It does not affect my view of the reasonableness of the MLC’s decision on surface rights. In fact, it points to a mechanism, other than staking mining claims, whereby the owner can obtain access to its mine. The owner does not have to stake claims in order to do so.
(d) Interference with the appellant’s exploration
[63] The Divisional Court was correct in holding that the application would have been allowed if the Act had been applied in a reasonable manner, since there was no evidence that the proposed easement would interfere with the appellant’s exploration or mining of its claims.
[64] It found, at para. 90, that “there was no basis in the evidence for the MLC to conclude that there would be interference with mining exploration or development of minerals such as these on the claims themselves” (emphasis added).
[65] It found that the MLC failed to engage with the evidence, or lack of evidence, concerning the appellant’s actual or proposed use of its mining claims. The Divisional Court observed, at paras. 96 and 97:
… the focus of the MLC’s analysis should have been the proposed exploration and mining activity on the CCC claims. It should have considered the evidence of actual and proposed activity - whether for consolidated aggregate or diamonds and base metals - and assessed the actual or probable impact of the proposed road on those activities in the claims. It did not engage with the evidence and make the necessary findings of fact respecting interference and the magnitude of the interference.
Given the unreasonable interpretations of the legislative provisions and the failure to engage with the evidence - or lack of evidence - of interference with actual or proposed mining activity to exploit the minerals in the claims, the MLC decision is not reasonable. Accordingly, the appeal must be allowed, and the decision to dismiss Cliffs’ application must be set aside. [Emphasis added.]
And at para. 104:
The focus of the MLC inquiry should have been the evidence of interference with actual or potential mining activities by CCC on its claims. If there was some interference of significance, the MLC should have considered whether there could be accommodation, so as to permit multiple use of Crown lands.
[66] I do not agree with the appellant, therefore, that the Divisional Court ignored the issue of interference with exploration.
[67] The appellant’s argument really amounted to this: although there was no evidence that its claims (which were admittedly staked to obtain access to Big Daddy) contain minerals of any value, it should nevertheless be able to exercise a veto over the use of the surface by others because it might, someday, discover minerals on its claims.
[68] The MLC’s responsibility, under s. 51(5) of the Act, was to make an order “based on the merits of the application”. In the absence of any evidence that the proposed use would in fact interfere with exploration or mining activities on the claims, the Divisional Court was correct in finding that the MLC’s decision on this point was unreasonable.
(e) Remedy
[69] The Divisional Court correctly noted that while the usual remedy in overturning the decision of an administrative tribunal is to remit the matter for reconsideration, the court could substitute its own decision for that of the tribunal in exceptional circumstances.
[70] In deciding not to remit the matter to the MLC for reconsideration, the Divisional Court referred to this court’s decision in Stetler v. Ontario Flue-Cured Tobacco Growers’ Marketing Board, 2009 ONCA 234, 311 D.L.R. (4th) 109. In that case, as is in this, this court agreed with the Divisional Court that the tribunal’s decision was unreasonable.
[71] This court, at para. 42 of Stetler, referred to Giguère v. Chambre des notaires du Québec, 2004 SCC 1, [2004] 1 S.C.R. 3, at para. 66, which states that although “[a] court of law may not substitute its decision for that of an administrative decision-maker lightly or arbitrarily”, exceptional circumstances may warrant the court rendering a final decision on the merits.
[72] In Stetler, this court stated that exceptional circumstances could “include situations where remitting the case would be ‘pointless’, where the tribunal is no longer ‘fit to act’, and cases where, ‘in light of the circumstances and the evidence in the record, only one interpretation or solution is possible, that is, where any other interpretation or solution would be unreasonable.’”
[73] After conducting its own examination of the record, the Divisional Court concluded that on a proper application of the statutory test to the relevant evidence, there was only one reasonable outcome: to dispense with the appellant’s consent under s. 51(5) of the Act. This would leave it to the Minister of Natural Resources to determine the issue, after an environmental assessment and consultation with other affected interests – a process in which the appellant would be entitled to participate.
[74] In coming to this conclusion, the Divisional Court was required to review the evidence (or lack thereof) on the factors relevant to dispensing with consent: whether there was interference with the respondent’s mining claims; the feasibility of the respondent’s plan to build a railway; the presence or absence of mineral deposits on the claims; and what inferences could be made as to the respondent’s motives in staking the claims along the transportation corridor.
[75] This aspect of the decision was one of mixed fact and law. In my view, the Divisional Court applied the correct legal principles and did not commit any palpable and overriding errors. I would defer to its decision.
F. disposition
[76] For these reasons, the appeal is dismissed, with costs inclusive of the motion for leave to appeal fixed at $40,000, inclusive of disbursements and all applicable taxes. There is no order as to costs for or against the intervener.
“G.R. Strathy C.J.O.”
“I agree H.S. LaForme J.A.”
“I agree Grant Huscroft J.A.”
Released: February 24, 2016
[^1]: The provisions were amended in 2009, but the amendments were not in force at the time of the hearing before the MLC. The application was decided on the basis of the law prior to the 2009 amendments.