Court Information

Ontario Court of Justice

Date: 2018-12-10

Court File No.: 18 00 17 Atikokan

In the Matter of: An appeal under s. 116 of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended

Parties

Between:

Her Majesty the Queen Appellant

— And —

Timothy Neilson Respondent

Judicial Information

Before: Justice David S. Rose

Heard: November 21, 2018 by video

Reasons for Judgment Released: December 10, 2018

Counsel:

• B. Wilkie, counsel for the Appellant
• The Respondent Timothy Neilson was self-represented

Reasons for Judgment

Background

[1] Mr. Neilson was acquitted by a Justice of the Peace of the charge of:

Unlawfully cause to be deposited any material, substance or thing on public lands, contrary to section 27(1)(a) of the Public Lands Act R.S.O. Chapter P. 43

[2] The trial took place over two days. The evidence established that Mr. Neilson had purchased a parcel of land, Mining Location AL 308 (hereafter AL 308), in the Township of Ramsay Wright in 2011. Mr. Neilson is a miner and he acquired the mineral rights to the land. AL 308 is quite rural, in an area dotted with lakes. AL 308 is not far from Reserve Bay, one such lake. Within Reserve Bay is Reserve Island, which has some 15 cottages. The cottagers historically came and went from their properties by travelling by boat to a boat launch just to the west of AL 308 and then traversing an old logging road cutting through AL 308 to gain access to a nearby municipal road Premier Road.

[3] When Mr. Neilson acquired AL 308 the cottagers continued to use the logging road to access the boat launch but this caused tensions. Mr. Neilson was concerned about his liability to the cottagers when they entered his land, so he put up a gate without notice. By the spring of 2012 the Ministry of Natural Resources and Forestry (MNRF) was receiving complaints from the cottagers about the road from the boat launch to Premier Road being blocked by a gate. In the spring of 2013 the MNRF acquired the trail by exercising its right to acquire 5% of the land of AL 308. The transfer deed to AL 308 gave the MNRF that right. The MNRF hired a surveyor and the trail then became its own separately titled Crown land parcel CL 16773 – which is an 18 meter wide road across AL 308. The old logging road thus became Crown land CL 16773. The pictures entered into evidence show the trail to be nothing more than a cleared dirt path wide enough for a car to traverse. Mr. Neilson was notified that CL 16773 was now Crown land and provided a survey plan showing the road and its path across AL 308.

[4] When the Crown acquired CL 16773 tensions only got worse. Mr. Neilson strongly disagreed with the manner in which the Crown acquired the road. Mr. Neilson took the position at trial, and on appeal, the Crown never legally acquired CL 16773. His position throughout these proceedings was that he owned AL 308 as a mining patent, which defeats all other property claims, including the Crown's title to CL 16773. Accordingly, he argues, he can do whatever he wants on CL 16773, including moving soil and rock debris onto the trail, because he is not subject to the Public Lands Act R.S.O. 1990 c. P. 43 when it comes to his use of the old logging trail. Mr. Neilson takes the position that his title stems from the Mining Act R.S.O. 1990 c. M. 14.

[5] The trial heard evidence from one of the cottagers affected by the dispute, and also MNRF personnel who testified about their dealings with the parcels and also Mr. Neilson himself. In May of 2016 one of the cottagers noticed a pile of dirt on CL 16773. Pictures entered into evidence show the debris, which I would describe as being a pile of dirt and rock perhaps 4 feet high. The rubble includes boulders which are sufficiently large that a heavy machine would be required to move them. The debris on one side of the road spilling onto the road way itself by a few feet.

[6] Mr. Neilson's position was outlined in his factum on the appeal:

13. In May of 2016 with a hydraulic excavator I (Tim Neilson) did some remedial work on previous mining work that was damaged by the MNRF in 2014. There was a small amount of debris piled off the side of the old logging road bisecting the property. Based on a complaint from a cottage owner who had traveled through the property.

The MNRF (B. Slack) called me demanding that I fill in my mining work I refused as my mining right allow me to explore and mind for minerals.

[7] This reflected the Crown evidence led at trial. Mr. Neilson's evidence at trial was just that, namely he moved the debris because "My situation is I should never have been charged under the Public Lands Act. Its mining property". Notwithstanding the Crown acquiring CL 16773, he testified, "My mining rights still exist".

Trial Judgment

[8] Her Worship acquitted Mr. Neilson. She found that s. 27(3) of the Public Lands Act had three elements to the actus reus: 1) Deposit or cause to be deposited; 2) material, substance or thing; 3) on public lands. Her Worship found that the Crown had not proven a deposit of material. Nor did the Crown prove that the area in question, CL 16773 was actual Crown land, or that the area where the debris was piled was actually Crown land.

[9] Aside from those findings Her Worship made a legal finding. She found that the Mining Act provided Mr. Neilson with a legal exception to the operation of s. 27 of the Public Lands Act.

Discussion

Standard of Appellate Review

[10] Findings of fact from a trial Court are to be afforded deference. Trial judges hear the evidence and are in the best position to make findings from that evidence. Appellate intervention is only permitted where there is a palpable and overriding error, or a misapprehension of the evidence, leading to those factual findings; see Housen v. Nikolaisen 2002 SCC 33, R. v. Morrissey and R. v. Lohrer, 2004 SCC 80.

Factual Findings

[11] In this case Her Worship found that the Crown did not prove that the trail CL 16773 was in fact Crown land. She reasoned that the Crown did not put the land registration document into evidence.

[12] The evidence at trial established that CL 16773 was Crown land as of September 2013 as a result of formal steps taken by the MNRF. The documentation was registered at the Crown Land Registry Office in Fort Frances and registered against the survey plan. Aside from the Crown evidence, Mr. Neilson admitted in his evidence that he knew that the trail was Crown land. He was questioned about the Crown's right on the title deed to AL 308 to take 5% of the land, which was used to take title to CL 16773. That set up the following exchange:

Q. My, my question is did you know it was in your Deed the crown had a right to..

A. Yes I did.

Q. and the Crown…

A. Yes I did.

Q. …now has done what it had the right to do?

A. I don't believe they had the right to do it the way they did it.

Q. Now…

A. I believe my rights probably still exist. In spite of what they did my rights still exist. My mining rights still exist.

[13] Mr. Neilson admitted in his evidence that the Crown exercised their right to take title to CL 16773. He took the position that it wasn't legal in his eyes, but he admitted to knowing that it happened. In order to find that the Crown never proved CL 16773 to be Crown land, the trial justice had to confront that evidence, which she never did. Her finding that CL 16773 was never proven to be Crown land therefore is at odds with the uncontested evidence from both Crown and Defence that it was just that. This is a palpable and overriding error which is not entitled to deference.

[14] The second finding made was that the debris was never piled onto CL 16773 because there was no proof of that. That, however, is at odds with the evidence from the MNRF officer Ben Slack who identified pictures of the road which had the road and the debris. He described the location of the picture as being on Reserve Bay Road, which was the travelled portion of the road traversing Mr. Neilson's property. The evidence was that there was only one road traversing the property – CL 16773. As Mr. Neilson said in his evidence referring to his mining activity: "I have no security or anything on my property now. Like all my workings seem to be by the road and that's properly why the road is where it is. It probably pre-existed as logging road." He was asked about the location of the debris relative to the road, and said that some of the debris was already there, but, "I piled it more on the other side of that. Where the big rock in the picture your showing me. All that dirt I piled was past that. It was further away from the center of the road." His evidence was clearly an admission that he had piled at least some of the material on the road.

[15] The Crown therefore led evidence that the pictures referred to CL 16773, and that the debris was on that road. Mr. Neilson admitted to that. The trial justice's finding that "I cannot be assured that the trail is on Crown land nor that the material is on the property of the Crown" would have to confront the evidence referred to above in order to be entitled to deference. By failing to do so the trial justice fell into error.

[16] In her ruling, the trial justice also found that "There is no evidence that the defendant brought any material, substance or thing to the location of the alleged offence. The soil or dirt was there". Although I do not read the reasons for judgment as being firm on the issue, there is a suggestion that the evidence at trial was akin to "kicking dirt onto the road with the toe of your boot". The pictorial evidence shows amply that the debris on the road included rocks which were sufficiently large as to require heavy machinery to be moved. To the extent that the Justice found that the debris was so small to be a de minimus example of an infraction the evidence showed otherwise.

[17] In sum, the findings of fact demonstrate a palpable and overriding error and are not entitled to deference. Those findings of fact at trial are the basis for the acquittal.

Legal Issue: Mining Act Exception

[18] The second issue on appeal is whether, as Her Worship found, Mr. Neilson's mining rights provided him with an exception to s. 27 of the Public Lands Act. The Appellant argues that this was a legal error.

Section 27 of the Public Lands Act is:

27(1) Unauthorized filling Except with the written consent of the Minister or an officer authorized by the Minister, no person shall deposit or cause to be deposited any material, substance or thing,

(a) on public lands, whether or not the lands are covered with water or ice; or

(b) on water or ice covering public lands.

27(2) Removal of material, etc. The Minister may remove any material, substance or thing deposited contrary to subsection (1), and any cost or expense incurred thereby is a debt due the Crown and may be recovered by the Minister in a court of competent jurisdiction in an action against the person who deposited the material, substance or thing or the person who caused it to be deposited.

[19] Notably, the section speaks of no exceptions such as Mining Act properties. Other, unrelated, sections of the Public Lands Act do refer to competing interests of mining and minerals, eg ss. 13, 27.1, 60, 65 to name but three.

[20] In agreeing with the Respondent that the Mining Act trumps the Public Lands Act when it comes to surface rights, the trial Court appears to have relied on Mastermet Cobalt Mines v. Canadaka Mines (1978), 21 O.R. (2d) 494 (C.A.). With the greatest respect to Her Worship, I believe that reliance on Mastermet v. Canadaka was misplaced. That case involved ownership of tailings which had escaped a mine onto an adjoining property. The issue in the litigation involved who took ownership of the tailings which later turned out to be quite valuable. Was it the mine from where the tailings originated, or the adjoining land where they arrived? The question before the Court was what was meant by the phrases "Mining Rights" and "Surface Rights". Referring to the Mines Act, and its successor the Mining Act, the Court found that the

17 The definitions in the Act make it abundantly clear that in the mining industry in Ontario a conveyance containing the words in the 1936 transfer of mining rights above-quoted confers an exhaustive right to mine all minerals, including the silver contained in the tailings. In my view, the acquisition of mining rights was never intended to be limited to the acquisition of valuable minerals in place, and in sufficient concentration to be extracted at a profit, as contended by a mining engineer called at trial to give evidence on behalf of the appellant.

[21] The Court of Appeal in Mastermet v. Canadaka upheld the trial judge's decision to interpret mining rights expansively. The tailings which had escaped the mine continued to be part of the mine even if they were physically located on the surface of an adjoining property, and were therefore prima facie part of the surface rights of that property. To extend that finding to a broad right to dump material from a mining property onto Crown land is simply an erroneous interpretation of the Mastermet v. Canadaka decision.

[22] More importantly, a finding that the Mining Act trumps the Public Lands Act when the Minister seeks to enforce s. 27 of the Public Lands Act is nowhere mentioned in the aforementioned Public Lands Act. If the Legislature had intended such a far reaching, important, balancing of public and private rights it would have said so. I therefore find that the trial Justice's finding that the Mining Act afforded the Respondent a defence in law was a legal error.

Disposition

[23] Based on the foregoing I would allow the appeal and quash the acquittal.

[24] The Crown asks that a conviction be substituted. The trial heard evidence over two days. Notably the Respondent testified and admitted to the delict. Again, his position throughout the proceedings was that he had the right to deposit debris on the trail because the MNRF improperly registered CL 16773 as Crown land. His position on the Appeal was that I should, inter alia, "Restore AL 308 to original status in lands (sic) Titles – Survey voided", which is far outside my jurisdiction. Given the trial record available to me and positions of the parties, I am confident that a finding of guilt can be recorded under s. 121 of the Provincial Offences Act. Based on the trial record Mr. Neilson should have been found guilty. Based on the trial record there is no need for another trial. Mr. Neilson is found guilty of the charge.

[25] The Crown asks for a $1000 fine. The record before me indicates a complete disregard by Mr. Neilson for the right by members of the public to traverse CL 16733. This is not a technical violation calling for a minimal penalty. Clearly he was not willing to accommodate the cottagers using the trail to access the boat launch so that they could enjoy their properties. This started with erecting a fence across the road and led to moving debris there. Under the circumstances a $500 fine is appropriate.

Released: December 10, 2018

Justice David S. Rose