COURT FILE NO.: CV-21-669174
ONTARIO SUPERIOR COURT OF JUSTICE
RE: MARY KATHLEEN YOUNG in her capacity as Trustee and Executor of the ESTATE OF BRUCE MALCOLM YOUNG, Applicant
-and-
IAMGOLD CORPORATION, Respondent
BEFORE: FL Myers J
COUNSEL: Nadia Campion and David Ionis, for the Applicant
Zohar R. Levy and Chad Pilkington, for the Respondent
HEARD: June 20, 2022
REVISED ENDORSEMENT1
The Application and Outcome
1The applicant asks the court to prohibit the respondent from dealing with property in which she wants to claim an interest. She wants the respondent to be required to preserve the property for six months while she tries to obtain control of the interest that she hopes to assert.
2The applicant submits that the respondent should be prevented from parting with the property that she wants to claim so that the property will still be there if and when she is able to commence an action to claim an interest in it.
3The applicant is effectively arguing, “ubi jus ibi remedium” or “where there is a right there is a remedy”. The court has all manner of remedies available. Whether an injunction is needed, a preservation order, or a simple Certificate of Pending Litigation would suffice, the issue is not the availability of a remedy. Rather, the question is whether the applicant has any right to assert.
4In my view, the applicant has no or insufficient legal or equitable right or basis to claim an interest in the respondent’s property to justify granting a remedy at this date. Whether that changes in future will be for another day.
5While there may be cases where a person who has not yet sued might have rights that need a remedy, in this case there are too many steps and too many years between the applicant and the property that she seeks. In fact, she acknowledges that she needs the Legislative Assembly of Ontario to pass a special statute for her to have even a chance to assert the right she claims.
6The Legislature has already considered the applicant’s request for a statute and, in its wisdom, it refused her request to pass the special statute that she needs. Once the request was refused, even the bare expectancy that the applicant asserts has been denied.
7As there has recently been a general election, the applicant may try again to seek a statute this fall. I am unaware of any limits on a person’s entitlement to petition the Legislature to ask for a law to be enacted. But, at the present time, the applicant has no basis to claim a right in the respondent’s property and certainly insufficient basis to prohibit the respondent from dealing with its property as it sees fit.
8There has to be a minimum threshold to justify legal intervention. The plaintiff has a sympathetic story looked at in one light and ignoring the passage of time. But if the court ordered people not to deal with their property while someone with a sympathetic story asks Parliament to give her rights in the property, it would be inviting mischief, ignore the policy behind the doctrine of standing, and encourage the granting of extraordinary equitable relief on a wing and a prayer.
9In my view, granting the relief sought in this case would be an illegitimate incursion by the court into the respondent’s private property rights. The respondent owns its property. It is entitled to do what it pleases with its property subject to law. The plaintiff concedes that she has no standing to sue for the interest she seeks. Neither does she have any legal or equitable right to obtain the standing she seeks. In short, right now, she has no rights that can or ought to be remedied.
The Facts
Superior Corporate Services Limited
10The facts are largely undisputed. I borrow liberally from the applicant’s factum in the following recitation.
11Cyril Young was a prospector in the mid-1900s. He spent his life exploring and developing mineral claims in Chester Township, Ontario. Cyril’s company, Young Shannon Gold Mines Limited, owned 11 patented mineral claims that now form part of Canada’s largest gold mine called the Côté Gold Project. The land interests in the gold mine are currently held by the respondent IAMGOLD Corporation for itself and others.
12Cyril Young died in 1962. The economics of the times did not yet permit the mine to be brought into production.
13Bruce Young was Cyril’s son. He worked with his father. On Cyril’s death Bruce Young became the owner of Young Shannon Gold Mines Limited.
14The applicant Mary Young was Bruce Young ’s spouse. She assisted Bruce in his work. She often visited the mine property. She is now quite elderly. She likes to tell the story of physically helping Bruce transport a generator on to the property and ensuring compliance with government regulations by capping the mine.
15In 1965 Bruce Young incorporated Superior Corporate Services Limited as the vehicle through which he would be remunerated for his work on the mine. There is more discussion on the shareholdings for this company below.
Superior Corporate Services Limited Receives a 1.5% Net Smelter Return Royalty Interest
16As the mine was not yet in production, Young Shannon Gold Mines Limited had no cash flow. It could not pay Bruce Young or his colleagues for the work they continued to do and the money they expended to develop the mine.
17Therefore, by written agreement dated April 15, 1987, Bruce Young had Young Shannon Gold Mines Limited grant to Superior Corporate Services Limited a 3% net smelter return royalty in the 11 mineral claims.
18The royalty interest was intended to be compensation in lieu of salary.
19On the same day, Bruce