COURT FILE NO.: 499/01

DATE: 2002/11/04

SUPERIOR COURT OF JUSTICE - ONTARIO

(DIVISIONAL COURT)

RE: Leo Alarie and Sons Limited et al v. Her Majesty the Queen et al

BEFORE: The Honourable Mr. Justice Robert Riopelle

COUNSEL: Peter Doucet, for the Applicants

Douglas Los, for the Minister of Natural Resources, the Minister of Northern Development and Mines and the Mining and Lands Commissioner of Ontario

Guy Wainwright, for 782900 Ontario Limited and Roger Lachance

E N D O R S E M E N T

OVERVIEW

[1] Alarie believes that these mining claims should not have been registered by the Mining Recorder as being subject to Lachance’s Aggregate Permit because Lachance’s application was not a pending “application brought in good faith” within the meaning of s.30 of the Mining Act, R.S.O. 1990, c.M.14. At stake is ownership to a large deposit of aggregate and the revenues generated from extraction of materials from that quarry by Lachance since 1998.

[2] Alarie’s application for judicial review requests in paragraphs 1 a), b) and c) certain relief as against the Recorder. The Crown Respondents’ motion requests that those paragraphs be struck because they are statute-barred and because they represent a collateral attack on the decision of the Commissioner.

FACTS

[3] Alarie appealed the Recorder’s 1998 decision to the Commissioner and also obtained an order transferring the proceedings to the S.C.J. That order was set aside by the O.C.A. and the matter returned to the Commissioner for adjudication. Her decision, among other things, held that:

a) the Recorder has jurisdiction to record a mining claim subject to an aggregate permit;

b) a mining claim staked after an aggregate permit is applied for is properly recorded as a mining claim subject to that aggregate permit; and

c) the Recorder is entitled to rely on the information provided by the M.N.R. as to the existence of a pending application brought bona fide (sic – good faith).

It is common ground that the Recorder limited her investigation of the good faith of Lachance’s application to the obtaining of a letter from the M.N.R. confirming the existence of a pending application.

[4] The Recorder issued her decision in 1998. The application for judicial review was commenced in 2001.

IS THE REVIEW OF THE MINING RECORDER’S DECISION STATUTE-BARRED?

[5] No application for judicial review may be brought to call into question any decision of a mining recorder or the validity of anything done by a recorder more than 30 days after the recording of the decision or after it was done: s.135(1)(a) and (c) of the Mining Act.

[6] No court may extend those time limitations despite anything in the Judicial Review Procedure Act, R.S.O. c.J.1 (“JRPA”): Mining Act, s. 135(2).

[7] Alarie maintains that these time limitations should not apply and the Recorder’s actions should be subject to judicial review because:

a) it has exhausted all appeal mechanisms available to it under the Mining Act;

b) those appeal proceedings are inadequate because the Commissioner has decided

i- that the Recorder is entitled to rely on the information provided by the M.N.R.; and

ii- that the Commissioner does not have the jurisdiction to conduct an inquiry as to the nature of the Recorder’s investigative duties; and

c) these procedural shortcomings taint the adequacy of the statutory appeal process and could not have been anticipated or discovered until all statutory appeals had been exhausted.

[8] For these reasons, and because there may be apparent grounds for relief and no substantial prejudice will result to any person affected by reason of the delay, Alarie believes that section 5 of the JRPA should be invoqued to permit judicial review of the Recorder’s actions. Section 5 permits a court to extend the time for judicial review “despite any limitation of time for the bringing of an application for judicial review fixed by or under any Act…”

[9] This conflict between:

a) s.5 of the JRPA which permits a court to extend the time for judicial review despite any limitation of time fixed by any act; and

b) s.135(2) of the Mining Act which provides that, despite anything contained in the JRPA, no court may extend the time limitations provided for in the Mining Act

was settled by Cory, J, in Re Cesland Corporation Ltd. et al. and Fort Norman Explorations Inc. et al., (1979), 25 O.R. (2d) 69 (H.C.J.) :

“Clearly, the Mining Act is to prevail, the legislation is specific, the exemption from the provisions of the [JRPA] is quite clear…”

The 1999 amendments to s.135(1) have no impact on that result.

[10] Paragraphs 1 a, b and c of the application are therefore struck. The Recorder is not a party to these proceedings and its record need not be produced.

IS A REVIEW OF THE MINING RECORDER’S DECISION A COLLATERAL ATTACK ON THE COMMISSIONER’S ORDER?

[11] Alarie exercised its statutory right to appeal the Recorder’s decision to the Commissioner who is the official who has the jurisdiction to determine all interests under the Mining Act: ss.112 and 105. The Commissioner held a hearing, delivered a decision and provided detailed reasons for her decision. Judicial review lies with respect to that decision and the Commissioner’s self-professed absence of jurisdiction to inquire into the nature of the Recorder’s investigative duties but not with respect to the Recorder’s decision. There is no basis for any further or other direct review of the Recorder’s actions.

[12] If Alarie succeeds in establishing that Lachance’s application was not a pending application brought in good faith then one would expect that:

a) the MNR would revoke Lachance’s permit; and

b) the Commissioner, as permitted under s. 105 of the Mining Act, would make such orders or give such directions to the Recorder as she would consider necessary to remove that encumbrance from Alarie’s title to these claims.

[13] Paragraphs 1 a, b and c can therefore also be struck as being a collateral attack on the decision of the Commissioner.

CONCLUSION:

[14] An order shall issue:

a) amending, on consent, the description of the respondents in the style of cause to read as follows:

“The Minister of Natural Resources, the Minister of Northern Development and Mines, the Mining and Lands Commissioner of Ontario and 782900 Ontario Limited and Roger Lachance carrying on business as Lachance Construction”;

b) striking out paragraph 1 a, b and c of the Notice of Application; and

c) directing that the Recorder’s record need not be produced in these proceedings.

[15] Alarie’s motion returnable on March 8, 2002 requesting, among other things, that the MNR and MNDM file their records with the Divisional Court as required by Rule 68 is moot: those records have been filed.

[16] Lachance’s motion returnable March 8, 2002 requesting an order dismissing Alarie’s Application with costs on a solicitor and client scale [sic] is still outstanding. On June 28, 2002 it was adjourned sine die on consent, returnable on 4 days’ written notice, pending the outcome of these two motions.

[17] If the parties are unable to agree on costs for these two motions, then any party may, on or before April 18, 2002, request the trial coordinator at Timmins to fix a date for a hearing as to costs, in which case all parties will exchange and file a separate Bill of Costs on Form 57A for each of those two motions at least 4 days prior to the hearing.

Justice Robert Riopelle

DATE: March 11, 2003