Patrick Len Gryba v. St. Andrew Goldfields Ltd. & 297 3090 Canada Inc.

This reasoned decision has been issued by the Ontario Mining and Lands Commissioner under the Mining Act for Patrick Len Gryba.

File No. MA 035-97

L. Kamerman
Mining and Lands Commissioner

Wednesday, the 4th day of February, 1998.

The Mining Act

In the matter of

Mining Claim L-1205682, situate in the Township of Taylor, in the Larder Lake Mining Division, staked by George Daniel Harkin and recorded in the name of 297 3090 Canada Inc. carrying on business as Trinity Explorations, hereinafter referred to as the "Cancelled Trinity Mining Claim";

And in the matter of

Mining Claim 1224106, situate in the Township of Taylor, in the Larder Lake Mining Division, staked by Patrick Len Gryba, to be recorded in the name of St. Andrew Goldfields Ltd., marked "Filed Only", hereinafter referred to as the "St. Andrew Filed Only Mining Claim";

And in the matter of

Crown Land Sale Number 110613, dated the 3rd day of August, 1954, registered as Parcel 23575, Cochrane SEC; in the Township of Taylor, situate in the District of Cochrane, registered in the name of St. Andrew Goldfields Ltd., (hereinafter referred to as "the Patented Lands");

And in the matter of

Subsection 61(3) of the Public Lands Act;

Between:

Patrick Len Gryba
Applicant of the First Part

and

St. Andrew Goldfeilds Ltd.
Applicant of the Second Part

and

297 3090 Canada Inc.
Respondent

And in the matter of

A preliminary determination pursuant to section 105 of the Mining Act for a declaration concerning the location of Wabbler Lake within Patent 23575 Cochrane SEC, if any and a declaration of whether there are any lands contained within boundaries of the said Patented Lands by virtue of being contained within Wabbler Lake which are not alienated from the Crown and thereby available for staking;

And in the matter of

An application pursuant to section 105 of the Mining Act for a determination that 297 3090 Canada Inc., carrying on business as Trinity Explorations, was misled by the 'Mining Recorder concerning the status of the lands in the Cancelled Trinity Mining Claim thereby allowing it to forfeit through the non-performance of assessment work, and for reinstatement of the Cancelled Trinity Mining Claim;

And in the matter of

An appeal pursuant to section 112 from the decision of the Mining Recorder for the Larder Lake Mining Division, dated the 15th day of September, 1997, marking the St. Andrew Mining Claim as "Filed Only" and for the recording of the St. Andrew Mining Claim.

Order

Upon reading the materials filed:

  1. This tribunal declares pursuant to its jurisdiction under section 105 of the Mining Act, that those lands found in Broken Lot 9, Concession II, in the Township of Taylor, more particularly described in Letters Patent granted on the 3rd day of August, 1954 by Her Majesty under the Public Lands Act to Mr. Walter Morin, comprised of the North-East Part of the said Broken Lot conveyed all of the lands described including the lands purportedly under the waters of the non-existent Wablers Lake, and therefore, there are no lands within the North-East Part of the said Broken Lot which are available for staking.
  2. This tribunal declares pursuant to its jurisdiction under section 105 of the Mining Act, that those lands found in Broken Lot 9, Concession II, in the Township of Taylor, more particularly described in Letters Patent granted on the 25th day of October, 1962 by Her Majesty under the Public Lands Act to Mr. Lucien Lachappelle, comprised of the South-East Part of the said Broken Lot conveyed all of the lands described including the lands purportedly under the waters of the non-existent Wabbler Lake and therefore, there are no lands within the South-East Part of the said Broken Lot which are available for staking.
  3. This tribunal orders that the appeal of Mr. Patrick Len Gryba from the decision of the Mining Recorder for the Larder Lake Mining Division, dated the 15th day of September, 1997, marking the St. Andrew Mining Claim as "Filed Only" be and is hereby dismissed.
  4. This tribunal further orders that the application of 297 3090 Canada Inc. pursuant to subsection 105 of the Mining Act for a reinstatement of the Cancelled Trinity Mining Claim be and is hereby dismissed.

It is further directed that upon the payment of the required fees, this Order be filed in the Land Titles Office in Cochrane, Ontario.

Dated at Toronto this 4th day of February, 1998.

Original signed by L. Kamerman
Mining and Lands Commissioner

File No. MA 035-97

L. Kamerman
Mining and Lands Commissioner

Wednesday, the 4th day of February, 1998.

The Mining Act

In the matter of

Mining Claim L-1205682, situate in the Township of Taylor, in the Larder Lake Mining Division, staked by George Daniel Harkin and recorded in the name of 297 3090 Canada Inc. carrying on business as Trinity Explorations, hereinafter referred to as the "Cancelled Trinity Mining Claim";

And in the matter of

Mining Claim 1224106, situate in the Township of Taylor, in the Larder Lake Mining Division, staked by Patrick Len Gryba, to be recorded in the name of St. Andrew Goldfields Ltd., marked "Filed Only", hereinafter referred to as the "St. Andrew Filed Only Mining Claim";

And in the matter of

Crown Land Sale Number 110613, dated the 3rd day of August, 1954, registered as Parcel 23575, Cochrane SEC; in the Township of Taylor, situate in the District of Cochrane, registered in the name of St. Andrew Goldfields Ltd., (hereinafter referred to as "the Patented Lands");

And in the matter of

Subsection 61(3) of the Public Lands Act;

Between:

Patrick Len Gryba
Applicant of the First Part

and

St. Andrew Goldfeilds Ltd.
Applicant of the Second Part

and

297 3090 Canada Inc.
Respondent

And in the matter of

A preliminary determination pursuant to section 105 of the Mining Act for a declaration concerning the location of Wabbler Lake within Patent 23575 Cochrane SEC, if any and a declaration of whether there are any lands contained within boundaries of the said Patented Lands by virtue of being contained within Wabbler Lake which are not alienated from the Crown and thereby available for staking;

And in the matter of

An application pursuant to section 105 of the Mining Act for a determination that 297 3090 Canada Inc., carrying on business as Trinity Explorations, was misled by the 'Mining Recorder concerning the status of the lands in the Cancelled Trinity Mining Claim thereby allowing it to forfeit through the non-performance of assessment work, and for reinstatement of the Cancelled Trinity Mining Claim;

And in the matter of

An appeal pursuant to section 112 from the decision of the Mining Recorder for the Larder Lake Mining Division, dated the 15th day of September, 1997, marking the St. Andrew Mining Claim as "Filed Only" and for the recording of the St. Andrew Mining Claim.

Reasons

To hear and determine the preliminary issue of whether there are lands within the Patented Lands which are available for staking, or whether all of the said lands have at all times relevant to these proceedings been alienated from the Crown through the issuance of Crown Patents which are currently the interest of St. Andrew Goldfields Ltd.

Background

The facts in this matter are set out in greater detail below. The issue arises out of an error in the original survey of Taylor Township, where the land surveyor incorrectly plotted a lake, known alternatively as Wahlers, Wabblers or Wabbler's Lake, as being found in Lot 9, Concession II, when in point of fact, the lake exists in Lot 8, Concession II, with possibly a minute portion crossing the lot line into Lot 9.

From this error, there were two Crown Land Sales involving the north-east and south-east parts of Lot 9 which purported to grant in fee simple the lands described therein, both of which circumvented the lake which did not exist on those lands.

In the Office of the Mining Recorder for the Larder Lake Mining Division, the lands which are described as being covered by the waters of the lake were staked from time to time. The second to last staking involved 297 3090 Canada Inc., carrying on business as Trinity Explorations, of which Mr. Glenn J. Mullan is a principal. Mining Claim L-1205682 was staked on March 17, 1995 by Mr. George Daniel Harkin and recorded and transferred to 2973090 Canada Inc. on April 11, 1995.

The matter of the lands under the lake became an issue before the Mining Recorder and based upon the fact that the lands were found to have passed with the original patent, therefore being alienated from the Crown, Mining Claim L-1205682 was cancelled on August 26, 1997 (See abstracts appended to Ex. 23). This decision was not appealed by Mr. Mullan.

On September 11, 1997, the lands were subsequently staked by Mr. Patrick Gryba and on September 15, 1997 were filed in the Office of the Mining Recorder, having been marked as "filed only" (Ex. 19). Mr. Gryba appealed the decision of the Mining Recorder by Notice of Appeal dated September 30, 1997 (Ex. 20)

On November 13, 1997, Mr. Mullan wrote to the tribunal (Ex. 23), and pointed out that his company's mining claim had been cancelled owing to the situation with the patented lands. He stated that the Mining Recorder should not have accepted the Gryba mining claim as "filed only". He further requested that the tribunal determine the standing of the lands and the respective rights of the parties, taking the position that, should the lands be available for staking, Mining Claim L-1205682 should be reinstated. The contents of this letter are set out in greater detail below.

Facts not in dispute

The circumstances which give rise to the facts in this case date back to the original survey of the Township of Taylor. In a document entitled "Report and Field Notes of the Survey of the Township of Taylor" dated December 30, 1904 (Ex. 2), Mr. A.S. Code, Ontario Land Surveyor reported on his survey to the Commissioner of Crown Lands. In the attached Index Map, there is a lake shown on Lot 9, Concession II, which is named Wabblers Lake. Further particulars of the metes and bounds of the lake are included in the attachment entitled, "Wabbler's Lake Compass Survey", being comprised of approximately 19 acres.

On the Plan of the Township of Taylor in the District of Nippissing (Ex. 1), Wabbler's Lake is again shown in Lot 9, Concession II.

In a document entitled "Crown Sale of Land" bearing File Number 33519, Reference Number 110613, dated September 24, 1930, (Ex. 3) granted to Mr. Walter Morin:

When compared with the Plan of the Township, the description corresponds with the northeast part of the lot, more or less, with the exception that the lands covered by Wabbler's Lake as shown on the Plan are excluded.

On June 17, 1954, Walter Morin applied for a Patent for 75 acres (Ex. 4). Letters Patent were granted on August 3, 1954 (Ex. 5) pursuant to the Public Lands Act. The legal description provides the same metes and bounds as above, with the following reservations:

The Parcel Register (Ex. 6) similarly contains the exclusion of land covered by Wabler's Lake.

On October 25, 1962, Lucien Lachapelle obtained Letters Patent for the southeast part of broken Lot 9, Concession II (Ex. 7). The description of the lands in this second patent is reproduced:

Commencing September 30, 1964, the matter of the location of Wabbler Lake became an issue with the then Departments of Mines and Lands and Forests. On that date, in a letter to Mr. G.H. Ferguson, a solicitor for the Law Branch, from S.J. Antoinette, also a solicitor (Ex. 8), the following comments are made with respect to Wabbler's Lake, first briefly on page one and then at length commencing on page two states:

Further correspondence on the subject ensued (See Exhibits 9 through 11) culminating with a Memo addressed to Mr. S.B. Panting, Supervisor of the Surveys Section from Mr. Robert G. Code, Surveyor General, Department of Lands and Forests, dated December 15, 1964 (Ex. 12), referring to the previous correspondence and stating the following:

The issue of navigability was handled through the dispatch by Mr. R.S. Panting, Supervisor, Surveys Section to the District Forester, in Cochrane, Ontario, a Memo dated February 12, 1965 (Ex. 13), which states in part:

A response shortly thereafter, dated March 5, 1965, from Mr. J.D. Hughes, District Forester, Swastika Office to the Surveys Section (Ex. 14) states:

There is no evidence filed that there was any follow up to this information from the Surveys Branch.

The lands in lot 9 which purportedly are covered by Wabbler Lake were the subject matter of a letter from Mr. Martin Cuda, the Mining Recorder for the Larder Lake Mining Division, dated April 8, 1991 (one of the documents included in the Correspondence from Glenn J. Mullan to the tribunal, dated November 17, 1997, Ex. 23) wherein Mr. Cuda states,

Subsequently, Mr. Roy Spooner, the next Mining Recorder for the Larder Lake Mining Division, appeared to have misgivings as to the situation involving the subject lands, having been made aware of the error in the original survey. On July 31, 1997, Mr. Spooner wrote to the Surveyor General (Ex. 17). This is reproduced in full:

The reply from the Surveyor General is found in an electronic mail letter to Mr. Spooner, dated August 14, 1997, from Mr. Robert Stocker (appended to the Mining Recorder's Order, Ex. 18), which states:

Relying on this opinion, Mr. Spooner issued the following Order concerning the subject lands (Ex. 18):

As discussed above, the subject lands were subsequently staked by Mr. Patrick Gryba and marked as "filed only". Mr. Gryba appealed this decision to the tribunal. The tribunal was subsequently made aware that Patrick Gryba staked these lands on behalf of St. Andrew Goldfields Ltd., the President of which is Mr. Charles Gryba, his brother.

Mr. Mullan became aware of this situation and wrote to the tribunal on November 13, 1997 (Ex. 23). His letter is reproduced in part:

Issues

The tribunal must determine the status of the lands in Lot 9, Concession II which are excluded within the words of the original patents, being circumscribed by Wabbler's Lake, which in fact does not exist at this location.

Should the determination above be that the lands are indeed available for staking, the tribunal must determine who, as between 297 3090 Canada Inc. and St. Andrew Goldfields Ltd. is entitled to be the recorded holder.

Findings

The matter of lands included in a patent involving water was discussed at length in Canadian Nickel Co. Ltd. and Abitibi Power and Paper Co. Ltd. et al. 4 M.C.C 224.

It involved an appeal from the refusal of the mining recorder to accept applications involving the staking of land under the water of three small lakes, within two patents issued pursuant to 1 Edward VII, c.6, being An Act to Provide for the Appropriation of Certain Lands for the Volunteers who served in South Africa and the Volunteer Militia who served on the Frontier in 1866. Under that statute, applicants were entitled to 160 acres. However, the patents in question each contained 152½ acres.

At page 225, the tribunal discussed the relevance of whether the lakes were navigable, referring to the Beds of Navigable Waters Act, which provided then, as it does to this day, that unless a grant specifically states that such navigable waters are to pass with title, they will be deemed to not pass. The significance of this is to retain in the Crown title to whatever land is necessary for the construction of highways, including those which may be found over water.

In Canadian Nickel, there had never been a survey of the lakes, but they were determined to be non-navigable. The principle involving patents which do not specifically pass title to non-navigable waters, was addressed in The King v. William Henry Fares et al. (1932), S.C.R.78. The tribunal discussed this case, as presented by counsel for the appellant at page 227:

[Similar provisions are contained in the current Surveys Act, R.S.O. 1990, c. S. 30:

The facts in the Canadian Nickel case differ in one other way to the current case involving Gryba, St. Andrew Goldfields and 297 3090 Canada Inc. The issue of the Surveys Act was further complicated by the fact that the legislation came into force after the patent was issued, but it was nonetheless determined to be retrospective, meaning the legislation would apply to a patent prior to the legislation being in place.

The tribunal considered a previous case before the tribunal with similar facts. In C.D. Stevenson and Pamour Porcupine Mines Limited v. Bingham Mines Limited, (unreported), June 13, 1938, which was appealed to the Court of Appeal. In that case, involving a grant under the same statute, 142 acres more or less, passed in the patent. The Court of Appeal found that, although the intention of 1 Edward VII, c.6 was not carried out, nonetheless, the Court found that the patent was explicit in stating that it was 142 acres, and that was the amount which passed. The land under water was not included.

The tribunal concluded in Canadian Nickelthat the grants did not contain 160 acres, but rather 152½, and no more than the latter amount passed. Had it been intended for the land under water to pass, the patent would have stated 160 acres. The tribunal concluded that the lands under the three lakes were open for staking.

The facts of this case differ from Canadian Nickel and those referred to therein in one material sense. The issue to be determined is not whether the legal description in the patent includes lands under water which are not dealt with in the body of the patent. Rather, the issue is one of mistake within the words of the patent, by excluding certain lands under a lake which does not exist within that land. This gives rise to consideration of cases which consider the principle of falsa demonstratio non nocet [fa false description does not vitiate a document). This principle is set out in the text of Latin for Lawyers (Toronto: The Carswell Co., Ltd., 1915) at page 157:

The headnote in Re Finucane and Peterson Lake Mining Co. Limited, (1914) 32 O.L.R. 128 (A.D.) states:

Similarly, Lincoln Pulp and Paper Co. v. Austin (1926) 30 O.W.N.60, involved a patent from the Crown granted on April 9, 1798. The issue involved whether the words of the patent included the waters of Twelve Mile pond. At page 61, Latchford, C.J. states:

A number of cases are then listed. Three are discussed below.

In Brantford Electric and Operating Company v. Brantford Starch Works, (1901) 3 O.L.R. 118, Armour C.I.O. states at page 119:

In Attrill v. Platt (1884) 10 Can. S.C.R. 425, Strong, J. states, commencing at page 471:

Cowen v. Truefitt Ltd., [1989] 2 Ch. 551, 554, [1899] 2 Ch. 309 involved a case where there was a mistake in an underlease in the description where a plan of the premises indicated that there was a staircase in Number 13, whereas in point of fact there was none, but Number 14 had two staircases, and the parties had intended that use of the back staircase form part of the underlease. In the lower court, the principle of falsa demonstrario non nocet was applied. Lindley, M.R., for the Court of Appeal, states commencing at page 311:

The tribunal has examined Lot 9, Concession II of the Plan of the Township of Taylor (Ex. 1). There is clearly no issue between the parties that the lake does not actually exist as shown on the Plan, but rather exists in Lot 8, Concession II, with the exception of a small tail at the south end which may cross the lot line. The configuration of the lake as erroneously shown is such that it appears wholly within the east half of the Lot 9. It also straddles the mid-point between the north and south halves of Lot 9, with most of it appearing in the northeast quarter of Lot 9.

The legal description in the Morin patent uses the words, "North-East part of Broken Lot Number 9". This may be indicative of a distinction between part of the quarter lot and the north east quarter. Clearly, the words denote a portion of the quarter broken lot. The description goes on to start at the north east limit of the quarter lot, moving west a distance of 20.34 chains. As the width of Lot 9 shown on Exhibit 1 is 40.00 chains, this width denotes half the width of the lot. The description changes direction to the south, going a distance of 45.76 chains. From Exhibit 1, the length of the lot appears to be 78.73 chains, so that this portion denotes more than half. The description changes direction again, heading east 12 chains to where it purportedly meets the high water mark of Wablers Lake, whereupon it follows the purported highwater mark to the point where it meets the east limit of broken lot 9. At this point it changes direction again, heading north a distance of 45.76 chains to the point of commencement.

The boundaries circumscribed by this description define three sides of a rectangle, whose proportions are 20.34 chains in width and 45.76 chains in length. It is quite clear from the description that all of the north-east part of Broken Lot 9 is included in the description, save for those portions covered by the non-existent Wabbler's Lake. Therefore, given that there is an error in the description of the boundary, what is it actually in law?

Calculating the area of the rectangle, if the south boundary were closed with a straight line renders an acreage of 93.07 acres

This is compared with the 75 acres more or less mentioned in the patent.

The legal description of the Lachappelle patent (Ex. 7) limits the conveyance of 66 54/100 acres, more or less. This is composed of the southeast part of the broken lot 9, again using the words "part" and not "quarter". The limits of the patent involve the east boundary and the south boundary of broken lot 9. The west line runs a distance of 20.34 chains drawn from the east boundary. The north limit is said to run at the southerly limit of Wabbler Lake the location of which is found to be 45.76 chains south and 20.34 chains west of the north-east angle of lot 9.

The acreage which would be contained in this patent, if the lines were drawn as a rectangle, is not immediately apparent. The actual distance of the north-south lines is not stated. However, relying on the Plan (Ex. 1), this north-south line is shown to be 78.83 chains. Therefore, the length of this line should be 78.83 chains less the 45.76 chains conveyed to Lachappelle = 78.83 - 45.76 = 33.07 chains. The area is estimated:

2,930,036.3 square feet divided by 43,560 square feet/acre = 67.264 acres

Taking the case of the Lachappelle patent for the southeast part of Broken Lot 9, Concession II, Township of Taylor, the tribunal finds that the patent conveyed all of the southeast part of Broken Lot 9. The boundaries which circumscribe this part lot are accurate insofar as three of the boundaries (east, south and west) are certain. The words which circumscribe the north boundary are accurate insofar there is mention of a line drawn atronomically east across from a definite starting point (being 20.34 chains east and 45.76 chains south of the north east comer) to a definite ending point, the boundary of the lot line. The tribunal finds that the reference to Wabbler Lake must be omitted from this description on the principle of falsa demonstraio non nocet, meaning that the false reference to Wabblers Lake will be rejected, but will not vitiate the remaining words in the patent.

The tribunal bases this finding on the fact that the Lachappelle patent also refers to the conveyance being 66 54/100 acres more or less, which does not differ materially from the 67.264 acres calculated as being in the rectangular configuration of this part lot. Therefore, the lands within the Lachappelle patent under the location of the improperly plotted Wabbler's Lake are alienated from the Crown and as such are not open for staking.

Considering the matter of the Morin patent, the metes and bounds in the legal description can be ascertained on three sides (north, west and east). It is the south boundary which is uncertain, as it contains the reference to a distance of 12 chains, and then to follow the meandering of the high water mark of Wablers Lake to the point where it intersects the lot line between Broken Lot 9 and Lot 8. What is most interesting about this point of intersection is that it implies that this north shore of the lake ends on the east boundary of Broken Lot 9 at a point exactly 45.76 chains south of the northeast comer of the lot, which is the exact length of the western boundary.

The tribunal finds that the legal description has circumscribed three sides of a rectangle. On the fourth, south side, the tribunal finds that, but for the high water mark of the non-existent lake, the south boundary moves east astronomically the named distance of 12 chains. The tribunal finds that it is quite clear that this line would continue east, but for this non-existent lake. Given that three sides of the rectangle can be drawn from certainty, the fourth line is commenced with certainty, the tribunal can reach no other conclusion than the words referring to Wablers Lake import a false reference as to how the line is to be drawn. The tribunal also finds that the drawing of the south line "Thence east astronomically... to the intersection with the east limit of said Broken Lot 9", thus deleting the words, "12.00 chains, more or less, to the high water mark along the westerly shore of Wablers Lake; Thence in a general north-westerly, northerly, easterly, southerly, south-easterly and easterly direction following the said high water mark in all its windings" will be disregarded on the basis of the principle of falsa demonstraio non nocet. Similarly, the description of the area as 75 acres, more or less, is repugnant to the actual area described by the rectangle circumscribed by the metes and bounds laid out in the patent and as such will be disregarded on the principle of falsa demonstraio non nocet.

From these findings, a declaration will be made to the effect that there are no lands within these two patents which are not alientate from the Crown, and as such, there is no land available for staking.

Flowing from this finding, the appeal of Patrick Gryba and St. Andrew Goldfields Ltd. from the decision of the Mining Recorder dated September 15, 1997, will be dismissed.

In addition, while the application of 297 3090 Canada Inc. for a declaration is allowed in part, as set out in the previous paragraph, as there are no lands available for staking, the application regarding a determination of the rights to be the recorded holder of the subject lands as between Patrick Gryba and 297 3090 Canada Inc. will be dismissed.

Conclusions

The tribunal has determined that all of the land covering what was erroneously described as Wabbler, Wabbler's and Wablers Lake in two patents, was conveyed with those patents. As such, there are no lands available to be staked. A declaration to this effect, pursuant to subsection 105 of the Mining Act will be issued pursuant to these Reasons.

There is no need to determine the second issue in this matter, and therefore the appeal and second portion of the section 105 application will be dismissed.

There are no costs to any party as a result of this application