The Mining and Lands Commissioner

Le Commissaire aux mines et aux terres

File No. MA 013-95

B. Goodman
Deputy Mining and Lands Commissioner

Monday, the 24th day of June, 1996.

The Mining Act

In the matter of

Mining Claims P-1035741 to 1035745, both inclusive, 1035747 to 1035750, both inclusive, 1112630, 1112631, 1113132, 1113134 and 1113136 to 1113139, both inclusive, situate in the Townships of Loveland and Robb, in the Porcupine Mining Division, recorded in the name of David J. Meunier and cancelled on the 12th day of April, 1995, hereinafter referred to as the "Cancelled Mining Claims";

And in the matter of

An application by David J. Meunier pursuant to section 105 of the Mining Act calling into question the applicability of clause 72(1)(b) in rendering the Cancelled Mining Claims forfeited on the 12th day of April, 1995;

And in the matter of

Mining Claims P-1155645, 1207297 and 1207462 to 1207465, both inclusive, situate in the Townships of Loveland and Robb, in the Porcupine Mining Division, having been recorded on the 1st day of May, 1995, hereinafter referred to as the "Restaked Mining Claims";

And in the matter of

An application by David J. Meunier pursuant to subsection 72(2) of the Mining Act for leave of the tribunal to raise a question of forfeiture in connection with these proceedings;

And in the matter of

An alternative application by David J. Meunier pursuant to section 105 of the Mining Act for a declaration that the forfeiture of the Cancelled Mining Claims was the result of an administrative error within the meaning of subsection 49(1), and a deemed reference to the tribunal by the Mining Recorder for the Porcupine Mining Division pursuant to subsection 49(2);

And in the matter of

An application by David J. Meunier pursuant to section 105 of the Mining Act to reinstate the Cancelled Mining Claims and cancel the Restaked Mining Claims upon whatever terms or conditions the tribunal deems just.

Between:

David J. Meunier
Applicant

and

Minister of Northern Development and Mines
Respondent

and

John Peter Huot
Party of the Third Part

Order

Upon hearing from the parties and reading the documentation filed;

  1. This Tribunal orders that these Applications are hereby dismissed.
  2. This Tribunal further orders that the notation "Pending Proceedings", which is recorded on the abstracts of the Restaked Mining Claims, to be effective from the 4th day of May, 1995, be removed from the abstracts of the Restaked Mining Claims.
  3. This Tribunal further orders that the time during which the Restaked Mining Claims were pending before the tribunal, being the 4th day of May, 1995, to the 24th day of June, 1996, a total of 418 days, be excluded in computing time within which work upon the Restaked Mining Claims is to be performed.
  4. This Tribunal further orders that the 23rd day of June, 1998, be fixed as the date by which the first and second units of prescribed assessment work shall be performed and filed on the Restaked Mining Claims pursuant to subsection 67(3) of the Mining Act and all subsequent anniversary dates shall be deemed to be June 23 pursuant to subsection 67(4) of the Mining Act.
  5. This Tribunal further orders that no costs shall be payable by any party to these Applications.

It is further directed that upon the payment of the required fees, this Order be filed in the Office of the Mining Recorder for the Porcupine Mining Division.

Reasons for this Order are attached.

Dated this 24th day of June, 1996.

Original signed by

B. Goodman
Deputy Mining and Lands Commissioner

File No. MA 013-95

B. Goodman
Deputy Mining and Lands Commissioner

Monday, the 24th day of June, 1996.

The Mining Act

In the matter of

Mining Claims P-1035741 to 1035745, both inclusive, 1035747 to 1035750, both inclusive, 1112630, 1112631, 1113132, 1113134 and 1113136 to 1113139, both inclusive, situate in the Townships of Loveland and Robb, in the Porcupine Mining Division, recorded in the name of David J. Meunier and cancelled on the 12th day of April, 1995, hereinafter referred to as the "Cancelled Mining Claims";

And in the matter of

An application by David J. Meunier pursuant to section 105 of the Mining Act calling into question the applicability of clause 72(1)(b) in rendering the Cancelled Mining Claims forfeited on the 12th day of April, 1995;

And in the matter of

Mining Claims P-1155645, 1207297 and 1207462 to 1207465, both inclusive, situate in the Townships of Loveland and Robb, in the Porcupine Mining Division, having been recorded on the 1st day of May, 1995, hereinafter referred to as the "Restaked Mining Claims";

And in the matter of

An application by David J. Meunier pursuant to subsection 72(2) of the Mining Act for leave of the tribunal to raise a question of forfeiture in connection with these proceedings;

And in the matter of

An alternative application by David J. Meunier pursuant to section 105 of the Mining Act for a declaration that the forfeiture of the Cancelled Mining Claims was the result of an administrative error within the meaning of subsection 49(1), and a deemed reference to the tribunal by the Mining Recorder for the Porcupine Mining Division pursuant to subsection 49(2);

And in the matter of

An application by David J. Meunier pursuant to section 105 of the Mining Act to reinstate the Cancelled Mining Claims and cancel the Restaked Mining Claims upon whatever terms or conditions the tribunal deems just.

Between:

David J. Meunier
Applicant

and

Minister of Northern Development and Mines
Respondent

and

John Peter Huot
Party of the Third Part

Reasons

This matter was heard on May 8, 9 and 10, 1996 in Ballroom C of the Senator Hotel, 14 Mountjoy Street South, Timmins, Ontario. David J. Meunier was represented by counsel Rino Bragagnolo; the Minister of Northern Development and Mines was represented by counsel John Norwood. Mark Dixson Hall was also in attendance. John Peter Huot represented the beneficial owner of the restaked mining claims, the "Loveland Syndicate". The manager of this syndicate, Lionel Bonhomme, who was called as a witness in these proceedings, was also in attendance. The other witnesses were Therese Binkley, Senior Recording Clerk and former Acting Mining Recorder, Porcupine Mining Division; Gary White, Mining Recorder, Porcupine Mining Division; and Louise Korpela, Clerk Typist, Mining Recorder's Office, Porcupine Mining Division.

Background:

This is an application by David J. Meunier, pursuant to subsection 72(2) of the Mining Act, R.S.O. 1990, c. M.14, for leave of the tribunal to raise a question of forfeiture in connection with these proceedings. This is also an application by Mr. Meunier, pursuant to subsection 105 of the Act, calling into question the applicability of clause 72(1)(b) in rendering certain cancelled mining claims forfeited. Mr. Meunier has also applied, in the alternative, also pursuant to section 105 of the Act, for a declaration that the forfeiture of these cancelled mining claims was the result of an administrative error within the meaning of subsection 49(1) of the Mining Act. This is also a referral to the Commissioner by the Mining Recorder for the Porcupine Mining Division, pursuant to subsection 49(2) of the Act. Mr. Meunier has asked that an order be made, upon terms or conditions that the tribunal deems just, for the reinstatement of the cancelled mining claims and the cancellation of the restaked mining claims and recorded in the name of the party of the third part, John Peter Huot, in trust. The Minister of Northern Development and Mines is a respondent in these proceedings.

Issues:

  1. Did Mr. Meunier file a report in the prescribed form of the assessment work done on the mining claims in accordance with subsection 65(2) of the Act in the Office of the Mining Recorder for the Porcupine Mining Division?
  2. If question 1 is answered in the affirmative, was there an administrative error on the part of the Crown within the meaning of subsection 49(1) of the Act?
  3. If so, should the tribunal issue an order relieving the mining claims that were subject to forfeiture?
  4. If questions 1 and 2 are answered in the negative, does the tribunal have the authority to make an order relieving the mining claims that were subject to forfeiture, and should such an order be made?

Facts and evidence:

Prior to the commencement of the hearing, counsel agreed to certain facts that were not in dispute. A written statement of these facts was entered as Exhibit 14. The facts were as follows:

  1. All 17 claims which were cancelled and subject to application for relief from forfeiture under subsection 49(2) and three because of alleged administrative error as well as eight claims which were cancelled in error and reinstated on May 5, 1995, were recorded by D. Meunier on April 11, 1989.
  2. David Meunier had maintained the said block of 25 claims in good standing up to April 11, 1995, the date of cancellation. The total work credited to each claim from April 11, 1989 to April 11, 1995 was $2,108.00 or a total of $52,700.00. The work required to maintain the claims in good standing to April 11, 1995 was $292.00 or a total of $7,300.00.
  3. As of March 16, 1995 as amended on May 19, 1995, David Meunier had a work credit reserve for drilling work completed on some of 25 and adjacent contiguous claims of $50,814.00 from which to draw on. $7,300.00 was required to maintain the claims in good standing for another year to April 11, 1995.
  4. David Meunier had applied for an OMIP grant for $64,599.00, based on total work of $215,329.00 of exploration expense on a block of claims which included 25 claims and the adjacent block was optioned from Placer Dome February 22, 1994, which required him to perform work equalling $30,000.00 prior to March 1, 1995 (done) and $50,000.00 prior to March 1, 1996. Part of the OMIP not done but extension obtained to March 1, 1997. David Meunier restaked two of these claims in January 1995.
  5. An approval certificate for the work was issued by the Ministry of Northern Development and Mines April 26, 1995 and enclosed in a letter dated April 28, 1995 after the claims were cancelled. Mr. Meunier's intention was to have carried out the work in the summer and fall of 1995. The OMIP grants have been cancelled.
  6. The 17 claims which were restaked by Rousseau and Young April 26, 27 and 30, 1995 were recorded in the name of John Huot in trust on May 1, 1995, pursuant to an application to record received by the Porcupine Mining Division at 10:05 a.m. and initialled by Louise Korpela. No further assessment work or monies were expended on the restaked mining claims save and except the cost of staking and recording. The total of the Meunier 1995 OMIP grant was $215,329.00. $78,278.00 was spent and approved by Meunier on the mining claims prior to the time they became open. $293,607.00 represents the total of the 1995 OMIP grant and the $78,278.00 that was already spent. Meunier spent $35,836.00 on the mining claims prior to their being open but this work was not filed and the Ministry of Northern Development and Mines was therefore unaware that these monies had been spent. $50,814.0 represents the amount that Meunier had in reserve (in the bank) for disbursements, commonly known as "available and approved credit" from a previous drill program. It was prescribed assessment work that had been approved.

The issue to be determined, set out at the conclusion of the statement of facts not in dispute, was whether the report of work conducted by way of assignment from the reserve W-9560-00132 completed in fact and filed with the Office of the Mining Recorder by David Meunier on or about March 20, 1995, or was it lost or misplaced by the staff of the Office of the Mining Recorder, so as to constitute an administrative error and invoke relief from forfeiture under provisions of section 49(3). Counsel noted that under subsections 49(3) and (4) the Commissioner may make such order subject to such conditions as the Commissioner considers appropriate and that subsection (4) allows for the extension of time for performing and reporting work.

On April 28, 1995, while looking through the cancellation book in the Office of the Mining Recorder for the Porcupine Mining Division ("the Recorder"), Mr. Meunier learned that the 17 subject claims which had been staked by him, had been forfeited pursuant to clause 72(1)(b) of the Mining Act because the prescribed work was not reported, as required under section 65. Mr. Meunier spoke with Gary White, the Mining Recorder, and told him that he had in fact filed the work report on the cancelled mining claims. After his discussion with Mr. Meunier, Mr. White instructed Therese Binkley to search the Recorder's Office to look for the report. Ms. Binkley had previously searched for a report of work performed by Mr. Meunier on these claims, after Mr. White reviewed the computer generated list of cancelled claims on April 12, 1995. He had recalled that Mr. Meunier had filed a number of work reports in March. He checked the record of work reports received but not entered (Ex. 17 (b) Pending Work Reports), but did not find a record of the report. He then gave Ms. Binkley the list of cancelled claims and asked her to look into the situation in greater detail. On the same day, she initiated a search of the Recorder's Office in case the work report was misfiled. The search took place on April 12 and 13, 1995. When the search was completed on April 13, 1995, and Ms. Binkley was satisfied that the report had been misfiled, she instructed the clerk to strike the mining claims off the Recorder's claim map. This was done on April 17, 1995, the next business day.

Lionel Bonhomme, who checked the book of cancelled claims kept in the Recorder's Office three or four times per week, learned from the book on April 13, 1995 that Mr. Meunier's 17 claims had been cancelled. Mr. Bonhomme had told Mr. Meunier in 1994 that he was interested in optioning or securing funding for these claims, but Mr. Meunier was not willing to deal with him. When Mr. Bonhomme discovered that the claims had been cancelled, he attempted, on more than one occasion to reach Mr. Meunier by telephone to ascertain if he was going to restake the claims. He had done this once before, in January, with respect to two other forfeited mining claims that Mr. Meunier had originally staked. Mr. Meunier had subsequently restaked these claims. This time, Mr. Bonhomme was unable to reach Mr. Meunier by telephone, but did speak with his mother, with whom he left a message. After he ascertained that the claims had been struck from the claim maps, Mr. Bonhomme contracted with Robert Rousseau on April 23 or 24, 1995 for the restaking of the claims. The restaking was carried out on April 26, 27 and 30, 1995.

After Mr. Meunier spoke with Mr. White on April 28, 1995, a former Ministry of Northern Development and Mines Inspector, Ken Stockill, invited Mr. Meunier to accompany him to the subject land to see if the claims had been restaked. Although they did not visit all the claims, they noted that the claims close to the road had been restaked by Mr. Rousseau. The following morning they returned to the subject land accompanied by a third person and confirmed that all 17 of the claims had been restaked. Mr. Meunier returned to the Recorder's Office on the morning of May 1, 1995 to advise Mr. White that the claims had been restaked. As he approached the exterior door, Mr. Meunier saw Mr. Rousseau leave his car with some documents. Mr. Meunier met with Mr. White in his office and asked him whether his work report had been found. Mr. White told Mr. Meunier that he did not doubt for a moment that Mr. Meunier had filed the work report, but that they were still looking for it. Mr. Meunier asked him what he could do about the claims, and Mr. White explained his options under the Mining Act. On May 4, 1995, Mr. Meunier returned to the Recorder's Office and met again with Mr. White, who had provided him with the prescribed form for an appeal to the Commissioner under subsection 112(3) of the Act. Mr. White discussed with Mr. Meunier some of the information he might include on the form, and faxed the form with a letter prepared and signed by Mr. Meunier to the Registrar of the tribunal (Ex. 2). Mr. White had suggested that Mr. Meunier file the appeal with the tribunal in order that "pending proceedings" could be noted on the abstracts of the eight further claims recorded by Mr. Meunier, for which work reports were to have been filed on May 5, 1995.

In his letter of May 4, 1995, Mr. Meunier requested an extension of time to appeal the cancellation of the claims noted in his attached Notice of Appeal, which was marked as "Appendix A". In his Notice of Appeal, Mr. Meunier stated that he was appealing the cancellation of the 17 claims "since the Mining Recorder's Office lost or misplaced a filing form entitled (A Report of Work Conducted After Recording Claim) and a map showing the claims were contiguous". He also made reference in the letter to a second appeal, marked as Exhibit B. In this Notice of Appeal he stated that "the Recorder of the Porcupine Mining Division refused to accept the attached duplicate of the Report of Work Conducted After Recording Claim and the affidavit attached to it". The affidavit referred to was in fact a statutory declaration made by Mr. Meunier. In this document, Mr. Meunier declared the following:

Between the dates of March 17 and March 23, 1995, he presented a Report of Work Conducted After Recording Claim at the recorder's office. At the time of presentation, he had assistance in completing the form from Theresa (sic) Binkley, an employee at the recorder's office. After completing the form, it was left with her for filing. However she required "a map showing that the claims were contiguous". He had to go to the geological side of the office where photocopying was available. Upon returning, he gave the map to another employee, who put it on her desk and asked "does she know what this is about?" He did not obtain a photocopy of his filing since it was not stamped "Received" at that time. He attached a duplicate of his filing to the best of his recollection. The purported duplicate, which forms part of Exhibit 3, was stamped "Received" and initialled by Therese Binkley on May 4, 1995. At the bottom of the form, under the date stamp, the following notation appears "Refused - claims forf. and canc. April 12/95 GRW". The report itself states that the total assessment work claimed on the attached statement of costs was $7,300.00, assigned from reserve W-9560-00132. The total was arrived at by assigning $292.00 each to the 25 claims noted on the form, namely the 17 cancelled claims and the eight further claims referred to in the Agreed Statement of Facts.

On May 10, 1995, Mr. Meunier faxed supporting documentation for his request for relief from forfeiture to the Registrar of the tribunal. This consisted of the documents faxed by the Recorder's Office on May 4, 1995 as well as a document prepared by Mr. Meunier entitled "A Breakdown of Work Completed to Date on the Loveland Robb Township Program", a map of the claims recorded by him, including the cancelled claims and the claims optioned from Placer Dome, a letter dated April 28, 1995 from the Ministry of Northern Development and Mines in relation to his OMIP application, and a photocopy of his designated program certificate. The last three aforementioned documents are referred to in his "Breakdown of Work Completed", which includes information set out in the "Agreed Statement of Facts".

Prior to the hearing of these applications, Mr. Bragagnolo sent photocopies of certain diary entries maintained by the secretary of the Resident Geologist's Office for the periods March 15 through March 23, 1995 to the Registrar of the tribunal. In his covering letter, he referred to the diary entries for March 20, 1995, which indicated that Mr. Meunier attended at the Resident Geologist's Office on that day. He suggested that this was the day that Mr. Meunier had left the work report with Ms. Binkley for filing, and that the diary entry supported Mr. Meunier's evidence.

At the hearing of these applications, David J. Meunier testified as to his recollection of the events of March 20, 1995. At about 11:30 a.m. he brought the ministry form entitled "Report of Work Conducted After Recording Claim", the top of which he had already filled in, to the Recorder's Office. He spoke to Ms. Binkley, who offered to assist him in completing the rest of the form. He had his client claim report list with him. This is a list generated by the Recorder's Office containing information on claims, by client. This includes work already done by the client on the claims. According to Mr. Meunier, he and Ms. Binkley calculated (Ms. Binkley with the aid of a calculator) the amount of money that would have to be transferred from the reserve to each of the 25 claims to comply with the Mining Act so that the claims would not "expire" on April 11, 1995. He handed her his client report and asked her to verify that all 25 claims had been covered. She took the report to her desk and told him not to forget to file a map to show that the claims were contiguous with those from which the $7,300.00 were assigned from the reserve. Ms. Binkley neither stamped the report nor gave him a copy. Because Mr. Meunier did not have a map, he went to the Resident Geologist's Office, located in the same building, obtained a photocopy of the map, and co loured the map to show that the claims were contiguous, using co loured markers, borrowed from Diane Egerland, the secretary in that office. This took between 20 minutes and one-half hour.

Mr. Meunier returned to the Recorder's Office with the map. When he did not see Ms. Binkley, he spoke with Louise Korpela, who told him that Ms. Binkley had gone to lunch. Mr. Meunier gave the map to Ms. Korpela, who asked him whether Ms. Binkley would know what it was about. Mr. Meunier replied in the affirmative and Ms. Korpela placed the map on Ms. Binkley's desk. On cross-examination, Mr. Meunier stated that he was not entirely sure how many times he had been in the Recorder's Office between March 13 and 23, 1995. He knew that he had been there March 16, 1995 to file his report of diamond drilling work and on March 14, 15, 16 and 20, 1995. He indicated that on previous occasions when he had filed reports, Ms. Binkley took the original and made copies, one for her and one for him, which she gave to him. He said that normally he would take a copy of this report, but he did not have the map that Ms. Binkley had requested and that she was at lunch. He conceded that he had never done this before, but stated that he had no reason to believe that the report would be lost. He stated that he held a large number of claims in Loveland and Robb Township (over 100), and that 54 claims originally staked for him by Ken Pye had forfeited because the required assessment work had not been performed. These claims were subsequently restaked by him. In order to keep track of his claims and the assessment work and reports required, Mr. Meunier relied on the client reports referred to earlier and copies of reports which he had filed. He did not maintain a separate record keeping system or a log book. The reason that the two claims referred to in paragraph 4 of the "Agreed Statement of Facts" were forfeited as a result of the failure to file a report of the work performed, was that Mr. Meunier was using a client list which pre-dated the staking of these claims. He subsequently restaked these claims. Ms. Binkley testified that she had no specific recollection as to Mr. Meunier speaking with her on March 20, 1995. Mr. Meunier is a regular client who comes in on a regular basis. He came to the office on March 14, 15 and 16, 1995 to file work reports on other claims (Ex. 15), and may have been in on other occasions. On all occasions she assisted him in completing his reports at the counter. Mr. Meunier would normally request a copy of the work report, after it was date stamped, and he was given a copy. To the best of her knowledge, the five work reports which form Exhibit 15 were the only work reports that Mr. Meunier filed over that time period. On cross-examination, Ms. Binkley testified that, at the relevant time, she was the staff member in the Recorder's Office who dealt mainly with the filing of work reports, and that she would do all of the processing in the case of assignments from reserve. This meant checking to see if the claims to which money was assigned from the reserve were contiguous, and then doing the posting. There was no way of telling whether claims were contiguous without seeing the work report form and the map. The map is normally attached before the filing of the report. During the searches conducted of the Recorder's Office for the work report that Mr. Meunier claimed that he had filed, no contiguity map concerning these claims and provided by Mr. Meunier was found. In the case of Work Report W9560.00119 recorded March 15, 1995, Mr. Meunier did not file a contiguity map. She made the map and checked that it was adequate. She testified that she does not refuse to file a work report if there is no map attached. She also admitted that Work Report W9560.00 132 received March 16, 1995, should have had a map attached, because there was an assignment of work from the reserve.

Therese Binkley testified that it was possible that she had assisted Mr. Meunier in completing a work report for these 25 claims, but that he did not file it. This had happened previously in the case of other clients. She did not recall asking him to bring in a contiguity map to be attached to a work report, although she conceded it was possible that she had done so. She also conceded that there was a slight possibility that he had left the work report with her, that it had not been logged anywhere, and that it had been misplaced. There was no possibility that it had been shredded. When asked whether she believed Mr. Meunier's evidence concerning his filing of the work report, she replied that he believed this to be true and that anything was possible. On direct examination however, she stated that both she and the staff were satisfied that the work report had not been filed. A year had passed since Mr. Meunier claimed he had filed the report, a number of searches had been conducted, and neither the report nor the map had been found. The work reports are bright yellow in colour, and would stand out. She indicated that there had been no incident of a lost work report during her tenure at the Recorder's Office, and she did not believe that it had happened in the past.

At the outset of the hearing, Ms. Binkley had given evidence concerning the system utilized by the Recorder's Office for receiving and recording documentation. The first stage is the entry of the document in the mail log book, which is kept at the counter. Everything is entered there, including documents received over the counter. Exhibit 16 consists of photocopies of certain pages of this book for March 10 to 27, 1995, inclusive. They show entries for Mr. Meunier on March 14, 15 and 16, 1995. The entries correspond to the five work reports filed on those days and found at Exhibit 15. There is no entry for Mr. Meunier on March 20, 1995, the day he claims he filed the missing work report.

The second stage of recording work reports is the entering of the report in the "Pending Work Reports" log. This is divided into two sections: "Received But Not Entered" and "Entered". Ms. Binkley explained that the "Received But Not Entered" part of the log is arranged chronologically by date that the report was received. In addition to the date, the log contains information about the recorded holder, the area or township, the work type, the first mining claim number and the total mining claims, the number of units, the dates performed from start to end, and the work report number. Some of the entries under work type include the notation "Reserve" which denotes a transfer of credits from the reserve to the claims. Work reports are placed in the "Received But Not Entered" part of the log, when it is determined that they cannot be entered into the computer immediately. This may be due to the fact that staff are busy performing other tasks, or that certain further information is needed or must be verified before the work reports can be entered. Everything in the "Received But Not Entered" part of the log ultimately gets recorded in the "Entered" part of the log. There is no indication in the "Received But Not Entered" part of the log as to when the work report is finally entered, only when it was received. Normally work reports have a sketch or map attached. The Recorder's Office does not provide a photocopy service, but clients can obtain maps for $1.15 and tax. When work reports are entered into the computer, the work report is automatically assigned the next sequential computer number. As a result, the "Entered" part of the pending work reports log is arranged numerically. Once this is done, the computer number is written manually in the box headed "Transaction Number" on the top of the filed form of "Report of Work Conducted After Recording Claim". Exhibit 17(a) records the entry of all five work reports received from Mr. Meunier on March 14, 15 and 16, 1995. It does not show any work report received from Mr. Meunier on any other day in March 1995. The entered part of the log for these dates shows that one of the work reports, W9560.00132, was subsequently re-entered as W9560.00394. Exhibit 17(b) the "Received But Not Entered" pages from the log for March 10 through 23, 1995, contain two entries for Mr. Meunier on March 14, 1995 and one on March 16, 1995. All three of these work reports were ultimately assigned numbers by the computer and appear on Exhibit 17(a). No other work reports are shown to have been received from Mr. Meunier on Exhibit 17(b). Once the information is processed, it is sent to Sudbury and kept in the office.

The Recorder's Office also keeps a summary of all work reports received in a given month. Exhibit 18 are photocopies from the monthly log for the period February 24 to April 4, 1995. The log contains much of the same information included in the "Pending Work Reports" log, but contains additional information, for example dollars spent on assessment work, assigned from reserve, balance in the reserve bank, etc. The only entries for Mr. Meunier on Exhibit 18 correspond to the five work reports received from Mr. Meunier on March 14, 15 and 16, 1995 (Exhibit 15).

The final stage, is the recording of the work report in the transaction record book, which records all transactions, including recordings of claims, transfers, cancellations, and work reports. Tab W of this book is the work report section, and for the period in question, also only shows the five work reports filed by Mr. Meunier on March 14, 15 and 16, 1995 including the one re-entered.

Ms. Binkley stated that all documents are stamped "Received" with the date stamp. The person receiving the document initials it and inserts the time received on the stamped portion of the form. She testified that there had been no time that she had received a work report but did not stamp it "Received" because she was waiting for a map. She would reject a work report only if it did not contain the required information, and in such circumstances she would return it to the client marked "Refused". The duplicate work report which Mr. Meunier attempted to file on May 4, 1995 regarding the 25 claims (part of Ex. 3) contains this notation. Ms. Binkley testified that there had been no major problem with compliance with the system and policies and procedures for the recording of documents, and that she was not aware of any problem with a misplaced document, since beginning to work in the office in 1971. According to her, no document had been misplaced and not subsequently found. With all the logs previously referred to, staff would be aware if a document was missing. It was her evidence that no other work reports had been filed for the period in the question by Mr. Meunier other than the five reports forming Exhibit 15.

Gary White testified that he had no evidence that the office's system of logging and recording had failed or that Mr. Meunier had filed the report claimed. It was, according to him, pretty difficult to believe that the report would not have shown up by this time. He said that everything led him to believe that the report had not been filed. Since being appointed Mining Recorder in 1987, he could not recall a document having been lost or misplaced that staff did not subsequently find or prove that it had not been misplaced. Mr. White recalled documents having been misplaced in the Recorder's Office more than once, but having been subsequently found. There was one case where an application to record a claim was never found, but the Recorder's Office had a record of having received it in the incoming mail log. In that case, the Recorder's Office accepted a duplicate of the application in 1992 or 1993. The original application to record has still not been found. If the application had not been logged in, there would have been no evidence that it had been filed, and the Recorder's Office would not have accepted the filing of a duplicate.

He was aware that Mr. Meunier had forfeited claims in Geary Township, where he had a reserve of $5,406.00, and the amount of work required was only $280.00 per claim. When he noted on April 12, 1995 that Mr. Meunier's 25 claims had forfeited, he determined that this was either a business decision by Mr. Meunier, or he had made a mistake, since he had forfeited these other claims in Geary Township.

He testified that, when he reviews the batch cancellation list generated by the computer, he draws to the attention of staff any information in his own knowledge that might suggest that they should not be cancelled. He was aware that Mr. Meunier had filed a number of work reports in mid March, so he gave the list to Ms. Binkley and asked her to check whether work reports in relation to these claims had been filed. On April 12 or 13, 1995, Ms. Binkley advised him that the work reports had not been filed.

Exhibit 26 are photocopies of pages from Mr. White's diary from April 12 through May 10, 1995. Mr. Meunier's name appears on April 11, 13, 19 (twice), 20, May 1, 2 (twice; once with "& Fiona & Bill Good by phone"), 3 (twice) and 4 (with "& Fiona"). Mr. White did not advise Mr. Meunier during his meetings and conversations with him in April subsequent to the forfeiting of his claims, that a search had been conducted to determine whether he had filed a work report for the 25 claims. He indicated that it was not his practice to advise the recorded owners of claims that they had been forfeited, nor to ask them the reasons therefore. It was the responsibility of the claim holder to manage his claims. Mr. White's diary contains a reference to Robert Rousseau for 10:00 a.m. on April 28, 1995. Mr. White has no recollection as to whether this was a meeting or phone call, and whether the conversation included reference to these 25 claims and their restaking. Although Mr. White's diary contains no reference to having met with Mr. Meunier on the afternoon of May 1, 1995, he recalls having met him well on in the afternoon. May 1, 1995 was the first day that Mr. Meunier had expressed concern to him about having filed a work report on the claims that had been cancelled. Mr. White testified that he did not believe that he was aware at that time that the claims had been restaked by Mr. Rousseau, but that it was possible Mr. Rousseau had told him this on April 28, 1995. Mr. White confirmed that after his discussion with Mr. Meunier, he instructed Ms. Binkley to have another search of the Recorder's Office conducted. He conceded that it was highly likely that he had told Mr. Meunier that he did not doubt for a moment that he had filed the report. Mr. White does not recall Mr. Meunier telling him in their conversation of March 20, 1995 (noted in Mr. White's diary at 2:00 p.m.), that he (Meunier) had filed a work report that day.

Louise Korpela remembers Mr. Meunier coming into the Recorder's Office and preparing work reports, with the assistance of Ms. Binkley, but cannot recall having received them directly from Mr. Meunier, since she was being trained at that time, and would have asked Ms. Binkley to assist. She recalled receiving a claim map from Mr. Meunier at a time when Ms. Binkley was not in the office and does not dispute the conversation that Mr. Meunier says took place between himself and Ms. Korpela. She testified that she took the map to Ms. Binkley's desk. On top of that desk were a number of work reports. She noted that the top one had Mr. Meunier's name on it, and put the map on top of the reports. Ms. Korpela noted that the work report, on top of which she placed the map, had a "Received" stamp on it. This was the only occasion that she had received a map from Mr. Meunier, although she could not recall the exact date. She could not recall the date on the "Received" stamp on the report on which she placed the map. She indicated that she had no reason to disbelieve Mr. White and Mr. Meunier, that he was in the Recorder's Office on March 20, 1995. It was Ms. Korpela who received, date stamped and initialled Mr. Rousseau's applications to record on May 1, 1995. She remembered participating in more than one search, over more than one day, for the work report which Mr. Meunier claimed to have filed. She believed that she had a conversation with Ms. Binkley prior t9 the search for this report, during which she indicated that she had put a map on Ms. Binkley's desk. Ms. Binkley told her that she was not certain what work report the map related to. Ms. Korpela testified that she was aware of one case of a lost document, when a record sheet had been misfiled. A summer student subsequently found it, after a search. They had to find the abstract to enter the information. There had been no incident when a document was lost, according to her recollection. When asked whether the map given to her by Mr. Meunier was a map attached to any of the reports that form part of Exhibit 15, Ms. Korpela replied in the negative. She said that the map she had been given was a folded map with a grey texture, was not a contiguity map, was not a photocopy obtained from the Resident Geologist's Office, but rather a map that was filed to do diamond drilling. Ms. Korpela indicated that she would be able to recognize the map, if she saw it.

Later in these proceedings, Mr. Norwood advised the tribunal that it has just come to his attention that the Recorder's Office had a map in relation to Mr. Meunier's claims. The map was produced, and both Ms. Korpela and Ms. Binkley were recalled to give evidence in relation to the map. Ms. Korpela identified the map as the only map which Mr. Meunier gave her (Ex. 27). The map, which is marked "Draft", is a claim location map prepared in January 1995 by William E. MacRae Geological for David J. Meunier. Ms. Korpela again affirmed that this was not a contiguity map, since it had not been colour-coded to show the contiguous claims, from and to which work was being assigned. Nor is this a photocopy of a map from the Resident Geologist's Office. She indicated that she might have seen the map once before when the search was conducted for the work report claimed to have been filed by Mr. Meunier. At that time, she believes it was attached to one of the five work reports. She testified that she thought the map had been placed with the five work reports that had been filed by Mr. Meunier.

Ms. Binkley did not recall specifically when the map came to her attention. She thought it was in March or April 1995. She does not recall seeing the map during the first search on April 12, 1995 for the report claimed to have been filed by Mr. Meunier, but it is possible. She had no reason to believe that it was not discovered during the search for the "missing" work report. She did not ask Mr. Meunier about the map after it came to her attention. She testified that this was because she did not consider it to be a contiguity map, nor the map, which Mr. Meunier described as having been given to Ms. Korpela. The map could have been attached to one of the work reports forming part of Exhibit 15. Since the map was not date stamped, she was unable to say when the map had been brought in. She testified that, after Ms. Korpela's evidence had been received by the tribunal, she returned to her office and retrieved the map from the Meunier appeal file in her desk drawer, where it had been since approximately June of 1995. She was aware of the map since the appeal file was opened in May 1995. She said that she was not sure whether she had shown the map to Mr. White, but that he was aware of it and the fact that it had been placed in the appeal file. She also testified that Mr. Meunier had previously always provided contiguity maps that were photocopies of claim maps in the Recorder's Office.

Following the conclusion of Ms. Binkley's evidence, Mr. Bragagnolo advised the tribunal and the other parties that Mr. Meunier stated that Exhibit 27 was not the map that he obtained from the Resident Geologist's Office and gave to Ms. Korpela on March 20, 1995.

Findings:

The tribunal has carefully considered the evidence and submissions of the parties, including the briefs received following the hearing of these applications.

The tribunal finds that Mr. Meunier has not established, on a balance of probabilities, that he filed the work report in relation to the 25 claims, which he believes he filed on March 20, 1995. There is no record of the work report having been received or logged in the Recorder's Office. Despite at least two extensive searches for the "missing" report, it has not been found. It is highly unlikely that Ms. Binkley would have received a document without both date stamping it and entering it in the mail log. It is also highly unlikely that Mr. Meunier would have failed to request a copy of a work report, as he had done in the past, in light of his responsibility under the Mining Act to file such a report and the consequences of failing to do so. While it is not necessary for the tribunal to assign a reason for Mr. Meunier's failure to file his work report, the tribunal believes that Mr. Meunier's omission in this regard was accidental and inadvertent. The tribunal believes that Mr. Meunier intended to explore and develop these claims, based on his evidence and that of Mr. Bonhomme. However, it is clear that Mr. Meunier did not maintain an adequate system of tracking the critical dates and amount of work required to keep his claims in good standing, because there had been at least one prior instance of his claims having been forfeited, because his records were not up-to-date. The tribunal accepts Ms. Korpela's evidence that Exhibit 27 is the only map which she received from Mr. Meunier, and is not the photocopy, coloured contiguity map, obtained from the Resident Geologist's Office, which he says he gave to her. It is likely that after Ms. Korpela placed Exhibit 27 on Ms. Binkley's desk, it was filed with one of the five work reports filed by Mr. Meunier on March 14, 15 and 16. Mr. Meunier has offered no satisfactory explanation concerning Exhibit 27. If he gave a second map to Ms. Korpela, which this tribunal does not accept, then he must allege that the Recorder's Office has not only misplaced his work report, but also this second map, since no map resembling the one described by Mr. Meunier has been found. This is even more unlikely. The tribunal also notes that Mr. Meunier was originally not clear about the date that he filed the work report, believing it to have been sometime between March 17 and 23, 1995. It was only when the diary maintained by the secretary in the Resident Geologist's Office was checked that the tribunal was advised by his counsel that it appeared from the diary entry that he filed the report on March 20, 1995. The tribunal does not rule out the possibility that Ms. Binkley assisted Mr. Meunier in completing a work report for the subject claims, but that Mr. Meunier did not subsequently file the document, believing he had done so. It is not necessary for the tribunal to make a finding in this regard.

In light of the tribunal's findings, the tribunal answers the first issue, set out at page three of these Reasons, in the negative. It therefore becomes unnecessary to answer questions two and three. The tribunal now turns to the first part of question four namely, whether the tribunal has the authority to make an order relieving the claims that were subject to forfeiture, despite the fact that there was no administrative error on the part of the Crown.

At this point it is appropriate to consider the application of the statutory provisions under the Act, which may be relevant to this matter. The relevant provisions are sections 49, 72, 105 and 121 of the Act. Those sections provide as follows:

    1. A recorder may by order relieve an unpatented mining claim that is subject to forfeiture as a result of an administrative error on the part of the Crown from the forfeiture.
    2. If any part of a claim referred to in subsection (1) has been staked by another staker, the recorder shall refer the matter to the Commissioner.
    3. On a reference under subsection (2), the Commissioner may make such order, subject to such conditions, as the Commissioner considers appropriate.
    4. An order under subsection (1) or (3) may grant an extension of time for performance and reporting any work required to be performed or for applying and paying for a lease in respect of the claim or provide for the payment of any fees in respect of the claim.
    1. Except as provided by section 73, all the interest of the holder of a mining claim before a lease has issued ceases without any declaration, entry or act on the part of the Crown or by any officer, and the claim is open for prospecting and staking out,
      1. if, without the consent in writing of the recorder or Commissioner, or for any purpose of fraud or deception or other improper purpose the holder removes or causes or procures to be removed any stake or post forming part of the staking out of such mining claim, or for any such purpose changes or effaces or causes to be changed or effaced any writing or marking upon any such stake or post;
      2. if the prescribed work is not duly performed and reported as required by section 65 unless an application and payment for a lease of the mining claim is made under section 81.
    2. No person, other than the Minister or an officer of the Ministry or a person interested in the property affected, is entitled to raise any question of forfeiture except by leave of the Commissioner, and proceedings raising questions of forfeiture shall not be deemed to be or be entered as disputes under section 48.
  1. Except as provided by section 171, no action lies and no other proceeding shall be taken in any court as to any matter or thing concerning any right, privilege or interest conferred by or under the authority of this Act, but, except as in this Act otherwise provided, every claim, question and dispute in respect of the matter or thing shall be determined by the Commissioner, and in the exercise of the power conferred by this section the Commissioner may make such order or give such directions as he or she considers necessary to make effectual and enforce compliance with his or her decision.
  2. The Commissioner shall give a decision upon the real merits and substantial justice of the case.

In the factum filed on behalf of the applicant, Mr. Meunier (Ex. 28b), counsel has framed the legal question for the consideration of this tribunal as follows:

Does the tribunal have the right to exercise a judicial or equitable discretion pursuant to Section 121 (1 ) (sic) of the Mining Act even if there is a determination by the tribunal that the Appellant (sic) has not discharged the onus of establishing on a balance of probabilities that an administrative error has been committed by the Ministry staff?

This matter has come before this tribunal, in part, as an application for leave of this tribunal to raise a question of forfeiture in these proceedings pursuant to subsection 72(2) of the Mining Act. Earlier in these Reasons, upon the consideration of the facts of this case, the tribunal determined that, on a balance of probabilities, there was a failure on the part of the applicant to meet the work reporting requirements prescribed by the Act. As a result, pursuant to clause 72(1)(b) of the Act, the subject claims have been forfeited by the applicant. In so finding, the tribunal has concluded that, although the applicant intended to keep his claims in good standing by performing and reporting the required assessment work, his failure to fulfil the statutory requirements of the Act was accidental and inadvertent and was not due to an error, administrative or otherwise, on the part of the Crown. It is therefore necessary to consider what powers, if any, are afforded to this tribunal under the Act to relieve the claims from forfeiture.

The first source of such power is section 49 of the Act, as set out above. Subsection (1) of that section provides that a mining recorder may make an order relieving an unpatented claim from forfeiture where there has been an administrative error on the part of the Crown.

It is worth noting that the predecessor to section 49 (subsection 59a(1), as enacted by the Statutes of Ontario, 1988, c. 48, s.l) referred to only "administrative error" and did not stipulate that the provision applied only in respect of error on the part of the Crown. The Act was amended, however, in 1989, to stipulate that the error did indeed need to be made on the part of the Crown for the provision to apply. Given this amendment, there can be no doubt that it was the intention of the Legislature that this power be exercised only where there is administrative error on the part of the Crown.

However, subsection (1) does not apply, where there is a competing interest to the claim from another staker. In such a case, a mining recorder does not have the power to make an order relieving the claim from forfeiture. Rather, pursuant to subsection (2), the recorder is required to refer the matter to this tribunal. Under subsections (3) and (4) this tribunal is given the power to make the appropriate order.

The tribunal notes that, the words "administrative error on the part of the Crown" are included only in subsection (1), the provision which describes the powers of the mining recorder. Those words are not explicitly set out in subsections (2) through (4), which describe the powers of this tribunal. The question therefore arises as to whether this tribunal has the power under subsections (2) through (4) to make an order relieving the claims from forfeiture, notwithstanding the fact that there has not been any administrative error on the part of the Crown.

The tribunal has determined that section 49 does not provide such power to this tribunal.

First, section 49 appears in the Mining Act under the heading "Administrative Error".

There has been due consideration of the use of headings as an aid to the interpretation of statutes. The Interpretation Act, R.S.O. 1990, c. 1.11 states at section 9 that:

... headings in the body of an Act ... form no part of the Act but shall be deemed to be inserted for convenience of reference only.

Nevertheless, the use of headings as an aid to the interpretation of statutes appears to be an accepted practice. In Re African Lion Safari & Game Farm Ltd. and Kerrio (1987), 59 O.R. (2d) 65 at 72-75, the Ontario Court of Appeal addressed the issue in a case concerning headings found in provincial legislation:

The recent decision of the Supreme Court of Canada in Law Society of Upper Canada v. Skapinker (1984), 9 D.L.R. (4th) 161, 11 C.C.C.(3d) 481, [1984] 1 S.C.R.357, has removed all doubt about the use of headings in the interpretation of statutes. It is established by that decision that headings can be used as an aid to interpretation especially where the language of the statute is ambiguous.

It is a reasonable conclusion that all of the powers granted to this tribunal by the provisions coming under the heading, "Administrative Error" are relevant to those situations only where there has been administrative error, and that such powers are not applicable where there has not been administrative error.

Secondly, it is this tribunal's interpretation of section 49 of the Mining Act, that through the combined operation of subsections (1) and (2), this tribunal derives power under this section only in those cases where administrative error on the part of the Crown has occurred.

Interpreting subsection (1) according to its plain and literal meaning, a condition precedent for the operation of that subsection is the occurrence of administrative error on the part of the Crown. In order for the reference of a matter to this tribunal to arise through the operation of subsection (2), however, two conditions precedent must be met.

First, the matter must be a "claim referred to in subsection (1)", and second, the claim must have "been staked by another staker". If there has been no administrative error on the part of the Crown, the matter is not a "claim referred to in subsection (1)" and the first condition has not been satisfied. Further consideration of the powers of this tribunal derived from section 49 becomes unnecessary.

Of course, at the outset, the question of whether there has been administrative error on the part of the Crown may not be apparent and it is entirely appropriate for this tribunal to enter into that enquiry. However, once this tribunal has satisfied itself that there has not been administrative error on the part of the Crown, as it has in this case, it is at that point apparent that this tribunal has no power to be derived from section 49 of the Mining Act.

Finally, this tribunal has concluded that section 49 of the Act does not provide this tribunal with the power to relieve claims from forfeiture in the absence of administrative error on the part of the Crown, from an examination of the comparative roles provided to a mining recorder under subsections (1) and (4) on one hand and to the Commissioner under subsections (2) through (4) on the other.

Subsection 49(1) provides power to a mining recorder to relieve a claim from forfeiture where there is no competing claimant. Subsection (2), however, requires that where the claim has been staked by another staker the matter shall be referred to this tribunal so that the competing interests of the parties can be appropriately weighed and addressed. There is no reason apparent to this tribunal which would require it to interpret section 49 so as to provide this tribunal with broader powers under the section than are provided to the mining recorder in the first instance.

Given that where this tribunal is seized of a matter under this section there are competing interests to be considered, and where a mining recorder is seized of such a matter there are no such competing interests, the tribunal has determined that the section cannot be interpreted so as to provide it with broader powers to relieve a claim from forfeiture than that which is provided to a recorder. Although the requirement of administrative error on the part of the Crown is explicit in subsection (1), it must be considered implicitly in subsections (2) through (4).

Having found that this tribunal does not have powers arising from section 49 of the Act to relieve the subject claims from forfeiture, the tribunal has also determined that no other provisions in the Act exist which specifically provide this tribunal with such powers. The issue therefore arises as to whether there are any general powers which are provided by the Act to this tribunal under which it could order such relief from forfeiture.

Section 105 of the Act as set out above and provides this tribunal with power to determine "every claim, question or dispute" in respect of "any matter or thing concerning any right, privilege or interest conferred by or under the authority" of the Act, unless otherwise provided by the Act.

In making such determinations, section 121 of the Mining Act, also set out above, requires this tribunal to do so "upon the real merits and substantial justice of the case". The question therefore arises as to whether these sections, and in particular section 121, provide this tribunal with a general power to order relief from forfeiture of the subject claims.

Section 121 has been the subject of some consideration both by this tribunal and by the courts.

In Evans v. Smith (1982) 6 M. C. C. 292, the application of section 121 (previously section 142 of the Mining Act, R.S.O. 1980, c.268) was considered at length by this tribunal.

In that case, the appellant had, through inadvertence, failed to meet the work reporting requirements prescribed by the Act and his claims were cancelled. In further similarity to this matter, another party had restaked the claims following the cancellation of the appellant's claims. In relation to section 121 the Commissioner stated at page 302:

At the outset it may be said with respect to section 142 which reads,

  1. The Commissioner shall give his decision upon the real merits and substantial justice of the case.

that this section does not create in the Commissioner what might be referred to as "intestinal sensation justice" but merely clothes the Commissioner with the power to provide equitable remedies as well as common law remedies and the statutory remedies expressly created in the Act. The power to grant relief from forfeiture is an equitable remedy and the expression of such relief in section 86, particularly keeping in mind the legal maxim expressio unius exclusio alterius, tends against the commissioner having any broader jurisdiction to grant relief than would normally be exercised by a court of equity and it may well be arguable that the jurisdiction is limited by and to the expressed areas.

The Commissioner, holding that he lacked discretion to do so, did not grant relief from forfeiture and dismissed the appeal.

This decision was appealed to Divisional Court and the decision of that Court is reported in Re Evans and Smith (1984) 45 O.R. (2d) 527 ("Evans"). Divisional Court allowed the appeal, finding that the Commissioner did indeed have the jurisdiction to grant relief from forfeiture under section 86 of the Act (as it then was), and the matter was remitted to the Commissioner to determine whether he would exercise his discretion to grant relief against forfeiture. Upon rehearing the matter at the direction of Divisional Court, the application was allowed by the Commissioner.

It must be understood, however, that the power to grant relief from forfeiture under section 86 of the earlier version of the Mining Act, is no longer available to this tribunal due to the amendment of the Act.

Section 86 of the Mining Act, R.S.O. 1980, c. 268 provided as follows:

    1. Where forfeiture or loss of rights occurs under subsection 54(7) or subsection 85(1) and,
      1. where the licence of the claim holder has expired, the Commissioner may make an order upon such terms as he considers just relieving the claim from forfeiture and authorizing a special renewal of the licence on payment of twice the prescribed fee, except as provided under subsection 22(5); or
      2. where the prescribed work is not performed within the time stipulated in subsection 76(1), the Commissioner, within six months of the forfeiture, may make an order or orders upon such terms as he considers just relieving the claim from forfeiture and extending the time for performing the work; or
      3. where the report of work is not filed within the time prescribed in subsection 76(3), the Commissioner, within six months of the forfeiture, may make an order upon such terms as he considers just relieving the claim from forfeiture and authorizing the filing of a proper report of work; or
      4. where application and payment for the lease are not made within the time prescribed in subsection 94(2), the Commissioner, within six months of the forfeiture, may make an order, upon such terms as he considers just, relieving the claim from forfeiture and extending the time for applying and paying for the lease, but in no case shall the time for so doing be extended beyond five years of the time prescribed in subsection 94(2); or
      5. where the metal tags have not been affixed to the comer posts of the claim within the time prescribed in subsection 54(5), the, Commissioner may make an order, upon such terms as he considers just, relieving the claim from forfeiture and granting an extension of the time for affixing the metal tags to the comer posts, but only one such extension shall be granted, and, where the Commissioner extends the time for affixing metal tags beyond the first anniversary of the date of recording of the claim, the holder of the claim shall pay to the recorder, in addition to the fee prescribed in the Schedule, a fee of $5 a claim for each year or part of a year of the extension beyond the anniversary date.

As noted above, this section was repealed by the Mining Amendment Act, 1989. It is set out above in these reasons to show the significant statutory powers to order relief from forfeiture that were previously held by this tribunal and which are no longer available to it.

This change in statutory discretion on the part of the Commissioner to grant relief from forfeiture is significant to this case. The change is described in some detail in Barton, Canadian Law of Mining, (1993) at page 328:

Ontario followed Quebec's lead in eliminating relief against forfeiture. Relief could previously be granted by the Commissioner under various circumstances, both before and after the date on which the claim was forfeited.95 . . .

. . . .

Section 73(1) of the Ontario Mining Act now simply confers on the local recorder the power to make an order to grant an extension of time for performing work and filing a report, but only if application to the recorder is made before the expiration of time occurs.... These provisions eliminate disputes about forfeiture, but in eliminating relief against forfeiture, they demand that a claimholder take care to comply with work and recording requirements, for there is now no mercy to be had once a forfeiture occurs (emphasis added).

In granting the appeal in the Evans case, the Divisional Court applied section 142 of the Mining Act (at page 534), but only after finding that section 86 of the Act provided a statutory source of power through which the Commissioner was able to exercise discretion to order relief from forfeiture. It did not suggest that section 142 provided a free standing or general power to order such relief. Had that been the case, it would have been unnecessary for the Court to justify section 86 as an appropriate statutory source of discretion, which it did at some length in its reasons.

Although the Divisional Court ruled that the Commissioner erred in finding that section 86 of the previous version of the Act did not provide him with discretion to order relief from forfeiture, it appears to have implicitly affirmed his view that section 142 (as it then was) provides this tribunal with only "the power to provide equitable remedies as well as common law remedies and the statutory remedies expressly created in the Act" and no further residual or general powers.

Furthermore, one must take into account the changes to the statutory scheme of the Act which were effected by the Mining Amendment Act, 1989, as described in Barton, above. The intent of the Legislature in repealing section 86 of the previous Mining Act was to severely limit (Barton uses the word "eliminate", apparently not taking into account section 49 and circumstances where there has been a forfeiture due to an administrative error on the part of the Crown) statutory power to relieve against forfeiture of claims. To interpret section 121 of the Act so as to include such a power would be to frustrate that intent.

The view expressed by the Commissioner in Evans v. Smith, supra that section 121 provides this tribunal with only "the power to provide equitable remedies as well as common law remedies and the statutory remedies expressly created in the Act" and no further residual or general powers is supported by a number of other decisions. Re Parres et al. and Baylore Resources Inc. and two other appeals (1987) 58 O.R. 707 ("Baylore") and Re Parres and Roxmark Mines Ltd. (1987) 58 O.R. 661 ("Roxmark") are both decisions of the Ontario Divisional Court on appeal from this tribunal concerning original claims which were deficient and which were subsequently overstaked. In both cases the Commissioner exercised this tribunal's equitable jurisdiction pursuant to section 121.

In the Baylore case, the Commissioner applied the equitable doctrine of "clean hands". As the Court stated:

The commissioner seems to have considered that in dealing with a claim-jumper, whose objective is to take economic advantage of work done by another, it would be unjust to allow registration of his claims when the original staker, whose claims may be deemed abandoned because of inadequate staking, is proceeding with the development of the claims. ...

... I consider that he [the commissioner] has the authority under the Act to look not only at the quality of the staking, but at what he considers to be the "real merits and substantial justice of the case"

In the Roxmark case, the Commissioner applied the equitable doctrines of acquiescence and laches so as to disallow the subsequent overstaking. The Divisional Court affirmed that the Commissioner could rely on section 142 to exercise this equitable jurisdiction.

In the Evans case there was a statutory basis for an order relieving the claims from forfeiture. In the Baylore and Roxmark cases cited above, known equitable doctrines (i.e. "clean hands" and acquiescence and laches) were invoked to provide equitable relief. In this case there is no such "peg", either in the form of a statutory provision or an equitable or common law doctrine from which section 121 can be "hung". Accordingly, the tribunal finds that it does not have any residual powers under section 121 of the Act, and as such there is no basis for it to exercise such powers in this case.

In the factum submitted on behalf of the applicant, David Meunier, counsel submitted the case of Allerston et al. v. The Director of the Lands Management Branch, Ministry of Natural Resources (1985) 7 M.C.C. 34 in support of his submission that section 121 of the Mining Act ought to apply to provide this tribunal with the discretion to relieve the subject claims from forfeiture. Counsel has cited a portion of the case (which addressed the issue of whether certain drilling ought to be credited as work done on the subject claims) in which the Commissioner stated at page 39:

Secondly, counsel for the appellants also relied on section 142 of the Mining Act, which provides that a decision of the Commissioner shall be given "upon the real merits and substantial justice of the case". It has been the position of this incumbent that this section does not provide the tribunal with' a discretion in respect of every decision that is made, that a discretion exists only where the appropriate wording therefor is used in the statute such as the word "may" or similar words and that the effect of the section is to clothe the tribunal with equitable as well as statutory and common law remedies.

If the tribunal understands the argument advanced by counsel, it is that because subsections 49(3) and (4) include the word "may", this tribunal is free to exercise its equitable jurisdiction pursuant to section 121 and to relieve the claims from forfeiture.

The tribunal is unable to accept this submission. For reasons set out above, it is the tribunal's view that section 49 of the Mining Act does not provide this tribunal with any powers, equitable or otherwise, in the absence of an administrative error on the part of the Crown. Had such an error occurred, the tribunal would agree with the submission that sections 49 and 121 taken together would vest this tribunal with the discretion to exercise its equitable jurisdiction to relieve the claims from forfeiture, particularly in light of the use of the word "may" as it appears in subsections 49(3) and (4). Given that no such error occurred, this tribunal is not free to provide such a remedy.

The tribunal also notes that several of the cases submitted by counsel for the applicant are cases which relate to applications for relief from forfeiture under what was, prior to the recent amendment of the Act, section 86 or a predecessor section. The comments set out above in relation to the Evans case, the repeal of section 86, and the severe limitation, effected by the recent amendment to the Act, on this tribunal's statutory power to order claims relieved from forfeiture, are sufficient to distinguish these cases.

Accordingly, issue four on page three of these Reasons is also answered in the negative.

Costs:

At the conclusion of the hearing of these applications, submissions were made on the issue of costs. Counsel for the applicant submitted that costs normally follow the event, and that if the tribunal were to find that Mr. Meunier's claims were forfeited as a result of an administrative error on the part of the Crown, the respondent Minister of Northern Development and Mines should be ordered to pay the applicant's costs. He also argued that the tribunal should take into account the conduct of staff in the Recorder's Office with which he took issue, in considering the question of costs. Mr. Huot, on behalf of the third party, argued that he is an innocent third party. He contended that, should the tribunal find that Mr. Meunier's claims were forfeited as a result of an administrative error on the part of the ministry, and order the claims reinstated, that the ministry ought to bear the costs of the third party in relation to these applications. If the tribunal were to find no administrative error on the part of the ministry, then an order should be made for Mr. Meunier to pay the third party's costs in relation to these applications.

The ministry advised that it was not seeking costs and submitted that, regardless of the outcome of these applications, costs should not be awarded.

Section 126 of the Act vests the Commissioner with the discretion to award costs to any party. Having carefully reviewed the evidence and submissions, the tribunal has decided not to award costs to any party.

Exclusion of Time:

Pursuant to subsection 67(2) of the Mining Act, the time during which the restaked mining claims were pending before the tribunal, being May 4, 1995 to June 24, 1996, a total of 418 days, will be excluded in computing time within which work upon the restaked mining claims is to be performed.

Pursuant to subsection 67(3) of the Act, June 23, 1998 shall be deemed to be the date for filing of the first and second units of prescribed assessment work on the restaked mining claims. Pursuant to subsection 67(4) of the Act, all subsequent anniversary dates shall be deemed to be June 23.

Conclusions:

Based upon the findings set out above, these applications are dismissed. The time during which the matter was pending before the Recorder and the tribunal will be excluded. There will be no order as to costs.

These applications are accordingly dismissed without costs.


95 Mining Act, R.S.O. 1980, c.268, s. 86