Jane Riddell, Estate Trustee of the Estate of Jeanne Riddell (Amended Vesting Order with Reasons)

These reasoned decisions have been issued by the Ontario Mining and Lands Commissioner under the Mining Act.

File No. MA 014-99
Wednesday, the 27th day of January, 2016.

L. Kamerman
Mining and Lands Commissioner

The Mining Act

In the matter of

Mining Lands Patent 7971 dated the 31 day of January 1956, registered as Parcel 20728 District of Sudbury South East, situate in the Township of Maclennan, District of Sudbury, Province of Ontario, registered in Folium Volume 100 as Parcel 20728, being granted in fee simple in accordance with the Mining Act, 1937, 1 Geo. VI, C47, as amended, the aforementioned lands, otherwise known as being composed of the South-West Quarter of the North Half of Lot Number Five, in the Third Concession, Township of Maclennan, being Mining Claim 35152, and being received in the Land Titles Office at Sudbury on the 26th day of March, 1956, (hereinafter referred to as “the Mining Lands”);

And in the matter of

All surface rights and mining rights in, upon or under the aforementioned Mining Lands Patent 7971;

And in the matter of

The Vesting Order of this tribunal dated the 26th day of August, 1999;

And in the matter of

The Vesting Order of this tribunal dated the 22nd day of December, 2015, purporting to correct the aforementioned 1999 Vesting Order;

And in the matter of

An application under section 196 of the Mining Act for a vesting order for non-payment of mining land tax by a delinquent co-owner;

And in the matter of

The original application of Jane Riddell, Estate Trustee of the Estate of Jeanne Riddell;
Original Applicant

And in the matter of

An application of James Brian McBride, Estate Trustee of the Estate of Jane Riddell, formerly Jane Riddell, Estate Trustee of the Estate of Jeanne Riddell to correct certain errors contained in the original Vesting Order of the 26th day of August, 1999;
Applicant

And in the matter of

D. Lorne Hennessy, his executors, heirs, successors or assigns

and

John Chyka, his executors, heirs, successors or assigns
Respondents

Amended Vesting Order

Whereas an application was received from Mr. Matthew J. Dorreen, counsel for the applicant on the 4th day of December, 2015, to correct the original Vesting Order of this tribunal, dated the 26th day of August, 1999, in which “all mining rights in, upon or under” Mining Lands Patent 7971, dated the 31st day of January, 1956, registered as Parcel 20728 District of Sudbury South East, situate in the Township of Maclennan, District of Sudbury, were vested in the original applicant;

And whereas the Mining Lands Patent was issued in accordance with the Mining Act, 1937, 1 Geo. VI, c. 47, for fee simple, such that the entire interest in both the mining lands and the surface rights should have been the subject matter of the original Vesting Order of the 26th day of August, 1999;

And whereas the Vesting Order of the 26th day of August, 1999 and the Amended Vesting Order of the 22nd day of December, 2015, caused a severance of the aforementioned Parcel, resulting in the creation of what has legally become known as the surface rights of Mining Lands Patent 7971, Sudbury East Section, dated the 31st day of January, 1956, registered as Parcel 20728, Sudbury East Section, situate in the Township of Maclennan, being PIN #73512-0068 (LT) (Parcel 20728 SEC SES SRO);

And whereas the tribunal was advised by Ms. Ying Zhang, Legal Assistant to Mr. Steve S. Moutsatsos, now acting on behalf of the applicant, that the Land Registrar was unable to reverse the severance without a Vesting Order in which both the mining rights and the surface rights are dealt with in one single document and further> the tribunal has spoken directly with Ms. Labonte-Larocque, Land Registrar for the District of Sudbury and advised of the jurisdiction of the tribunal to rescind and reissue a Vesting Order nunc pro tunc and indicated that it would do so;

  1. This tribunal orders that the Vesting Order dated the 26th day of August, 1999, being the application of Jane Riddell, Estate Trustee of the Estate of Jeanne Riddell for a vesting of the interest of D. Lorne Hennesy, his Executors, Heirs, Successors or Assigns and John, Chyka, His Executors, Heirs, Successors or Assigns and its Vesting Order, dated the 22nd day of December, 2015, being the application of James Brian McBride, Estate Trustee of the Estate of Jane Riddell, formerly Jane Riddell, Estate Trustee of the Estate Trustee of Jeanne Riddell, for a vesting of the interest of D. Lorne Hennesy, his Executors, Heirs, Successors or Assigns and John, Chyka, His Executors, Heirs, Successors or Assigns, be and is hereby rescinded and replaced with the following nunc pro tunc:

    1. It is ordered that the interest of D. Lorne Hennesy, his Executors, Heirs, Successors or Assigns in Mining Lands Patent 7971, dated the 31st day of January, 1956, registered as Parcel 20728 Sudbury East Section, situate in the Township of Maclennan, District of Sudbury, be and is hereby vested in Jane Riddell, Estate Trustee of the Estate of Jeanne Riddell, and for greater clarity, that this interest be comprised of all surface rights and all mining rights in, upon or under the aforementioned Mining Lands Patent 7971.

    2. It is further ordered that the interest of John, Chyka, His Executors, Heirs, Successors or Assigns in Mining Lands Patent 7971, dated the 31st day of January, 1956, registered as Parcel 20728 Sudbury East Section, situate in the Township of Maclennan, District of Sudbury, be and is hereby vested in Jane Riddell, Estate Trustee of the Estate of Jeanne Riddell, and for greater clarity, that this interest be comprised of all surface rights and all mining rights in, upon or under the aforementioned Mining Lands Patent 7971.

  2. It is declared that the omission which has resulted in the need for the rescissions of the original Vesting Order dated the 26th day of August, 1999 and the Amended Vesting Order dated the 22nd day of December, 2015, is the responsibility of the tribunal and resulted in a severance of the aforementioned Parcel 20728, Sudbury South East, situate in the Township of Maclennan, District of Sudbury, registered in Folium Volume 100 as Parcel 20728 into PIN #73512-0003 (LT) (Parcel 53330 SEC SES MRO) and PIN #73512-0068 (LT) (Parcel 20728 SEC SES SRO) and further> that Land Registry Office #53 in Sudbury be and is  hereby directed to use its best efforts to consolidate the aforementioned PINs for mining and surface rights so as to return this Mining Lands Patent 7971 to its original state with its original obligations and rights flowing from the Mining Act 1937, 1 Geo VI, c. 47, as amended.

  3. It is directed that upon the payment of the required fees, this Order be filed in Land Registry Office #53, in Sudbury, Ontario, and in the Land Tenure and Assessment Unit of the Ministry of Northern Development and Mines in Sudbury, Ontario.

Dated this 27th day of January, 2016.

Original signed by L. Kamerman
Mining and Lands Commissioner

File No. MA 014-99

L. Kamerman,
Mining and Lands Commissioner

Tuesday, the 26th day of January, 2016.

The Mining Act

In the matter of

Mining Lands Patent 7971 dated the 31 day of January 1956, registered as Parcel 20728 District of Sudbury South East, situate in the Township of Maclennan, District of Sudbury, Province of Ontario, registered in Folium Volume 100 as Parcel 20728, being granted in fee simple in accordance with the Mining Act, 1937, 1 Geo. VI, C47, as amended, the aforementioned lands, otherwise known as being composed of the South-West Quarter of the North Half of Lot Number Five, in the Third Concession, Township of Maclennan, being Mining Claim 35152, and being received in the Land Titles Office at Sudbury on the 26th day of March, 1956, (hereinafter referred to as “the Mining Lands”);

And in the matter of

All surface rights and mining rights in, upon or under the aforementioned Mining Lands Patent 7971;

And in the matter of

The Vesting Order of this tribunal dated the 26th day of August, 1999;

And in the matter of

The Vesting Order of this tribunal dated the 22nd day of December, 2015, purporting to correct the aforementioned 1999 Vesting Order;

And in the matter of

An application under section 196 of the Mining Act for a vesting order for non-payment of mining land tax by a delinquent co-owner;

And in the matter of

The original application of Jane Riddell, Estate Trustee of the Estate of Jeanne Riddell;
Original Applicant

And in the matter of

An application of James Brian McBride, Estate Trustee of the Estate of Jane Riddell, formerly Jane Riddell, Estate Trustee of the Estate of Jeanne Riddell to correct certain errors contained in the original Vesting Order of the 26th day of August, 1999;
Applicant

And in the matter of

D. Lorne hennessy, his executors, heirs, successors or assigns

and

John Chyka, his executors, heirs, successors or assigns
Respondents

Reasons

  1. This application was made to the tribunal pursuant to sections 105 and 121 of the Mining Act ostensibly for the correction of the Vesting Order of the Mining and Lands Commissioner, dated August 26, 1999, in which only the mining rights were vested in the applicant, Jane Riddell, Estate Trustee of the Estate of Jeanne Riddell.

  2. Under the authority of the tribunal pursuant to s. 196 of the Mining Act, a co-owner may apply initially for an Order that those delinquent co-owner(s) who have failed to pay their proportionate share of taxes for a period of four or more consecutive years prior to the date of the application, do so within a period of three months or be entitled to request a hearing in which their dispute of liability for payment can be heard. This was done by Ms. Riddell against the co-owners of Jeanne Riddell, being D. Lorne Hennessy and John Chyka. The statutory 90 days for payment or filing a request for a hearing was given after publication of notice of this requirement was made and neither co-owner, their executors, heirs, successors or assigns responded.

  3. The tribunal issued a Vesting Order on August 26, 1999, in which the interests of both D. Lorne Hennessy and John Chyka, their executors, heirs, successors or assigns in “All mining rights in, upon or under Mining Lands Patent 7971, dated the 31 day of January 1956, registered as Parcel 20728 District of Sudbury South East, situate in the Township of Maclennan, District of Sudbury, Province of Ontario” were vested in Jane Anne Riddell, in her capacity as Executrix of the Estate of Jeanne Lillian McBride-Riddell. 

  4. On December 4, 2015, Mr. Matthew Dorreen, counsel for Mr. James Brian McBride, the Estate Trustee of the Estate of Jane Riddell, requested that the surface rights be vested by the tribunal to correct the error which the August 26, 1999, Vesting Order created which resulted in a severance of the mining and surface rights in Land Registry Office #53 in Sudbury, Ontario. Two PINS were created, being PIN #73512-0003 (LT) (Parcel 53330 SEC SES MRO) and PIN #73512-0068 (LT) (Parcel 20728 SEC SES SRO), copies of which were filed in support of the application for the Amended Vesting Order made on behalf of his client. 

  5. The tribunal issued its Amended Vesting Order on December 22, 2015, which amended the August 26, 1999, Vesting Order by deleting the words “mining rights” and replacing them with the words “surface rights” in the first paragraph of the Title of Proceedings. As all interests in the aforementioned D. Lorne Hennessy and John Chyka, their executors, heirs, successors or assigns, had vested in the late applicant, Jane Riddell, in her capacity as Executrix of the Estate of Jeanne Riddell, it was assumed by the tribunal that this would be sufficient.

  6. The tribunal was once again approached by the former offices of Mr. Matthew Dorreen (who has since left the practice and the province), this matter now having been taken over by Mr. Steve S. Moutstatsos, and his Legal Assistant, Ying (Joy) Zhang, of the firm of Weaver, Simmons LLP. Ms. Zhang advised that the Land Registrar had difficulty acting on the structure of the Amended Vesting Order, as it included the vesting of the surface rights but did not include an amendment of the original Vesting Order to include the Surface Rights. The tribunal requested that it be put into direct telephone contact with the Land Registrar. 

  7. The tribunal spoke with the Land Registrar in Sudbury, Ontario (Office #53), Ms. Theresa Labonte-Laroque, on January 6, 2016, concerning how to remedy this situation. It was explained to Ms. Labonte-Laroque that the tribunal did have the jurisdiction to rescind its earlier Vesting Orders and reissue them nunc pro tunc; that is to say, as if they were being issued in 1999 as they should have been done in the first place correctly. Ms. Labonte-Laroque was advised of a Vesting Order from 1969, which had been rescinded and reissued nunc pro tunc with considerable legal reasoning and reliance on case law in support. A summary of this authority was offered in support of this jurisdiction and the tribunal was advised that this would be most useful in support of Mr. McBride’s application to reverse the severance which had resulted after the 1999 Vesting Order.

  8. The tribunal relied on the jurisdiction set out in the complex case of Citadel Gold Mines Inc. (tribunal files MA 020-04 & MA 002-96) (unreported) (August 25, 2006), which is found on its website in its entirety. This is an amended version of this Order; the initial version is dated November 30, 2005. 

  9. The facts in that case differ in several regards. In 1969, a Vesting Order was issued by the Mining Commissioner for the “Mines, Ores, Minerals and Mining Rights in, upon and under” certain parcels. At that time, the Land Registrar transferred the entire estate in patented lands which were originally issued as Mining Lands Patents under an early version of the Mining Act in the applicant. This was done pursuant to the then relevant predecessor to s. 196, being the vesting of the interest of the delinquent co-owner, in the co-owner who had paid the mining lands tax for a period of four or more years.

  10. What ensued next involved a rather complicated and convoluted series of transfers, applications for vesting orders, including one issued by the incumbent in which the same words, namely the mines, ores, minerals and mining rights in, upon and under the lands, dissolution of a corporation which purportedly caused the mining rights to escheat to the Crown and municipal tax sales. All of this activity created clouds on title for the then Land Registrar who put two cautions on title.

  11. As a result, counsel for Citadel applied to the tribunal requesting that the matter of title be clarified. The Ministry of Northern Development and Mines was notified and also made representations in support. 

  12. In 1996, the Land Registrar became concerned as to whether the Vesting Order properly vested the surface rights. What caused concern in 1969 was that there was yet another co-owner, now deceased and an application had been made for a vesting of that interest through the estate in the 1969 applicant. 

    The law

  13. It was the position of the tribunal in 1999 that given the wording of clause 189(1)(c) [and (d)] that all that could be vested in lands within a municipality pursuant to a section 196 application were the mining rights. The relevant provisions stated:

  14. MNDM took the position that while cl. 189(1)(c) and (d) limit the scope of the mining land tax to the mining rights in, upon or under the lands in a municipality, the tax is levied in reference to the entire interest in the land held. The tax is assigned to the owner of the land who is obligated to pay the taxes. Ss. 196(5) obliges the vesting of the undivided interest in the estate or property. 
    • S. 190 and 191 demonstrate that it is the undivided interest in the land that is the subject of taxation. 

    • The operation of s. 191 recognizes and effectively separates the surface rights from lands in which there is no severance, where those surface rights “in respect of a mining claim” are used for purposes other than mining. It expressly exempts the surface rights from all provisions of the Part XIII mining land tax and operates to have that tax applicable only to the mining rights. It is the only section to expressly levy the mining tax on the mining rights only in property where there has not otherwise been a severance of the surface and mining rights. 

    • Clauses 189(1)(c) and (d) refer to the mining rights in, upon or under lands while subsection 195(6) refers to vesting interests of the co-owners in the lands or mining rights. Should subsection 196(5) have intended to deal with, vest and effectively sever only the mining rights in a property, the subsection would need to be drafted and expressed in a fashion to mirror the exact drafting of clauses in subsection 189(1). In the absence of specifying a particular subset of the interest, namely the mining rights as being the subject matter of the vesting, it is the undivided interest of a co-owner in the entire estate or land which is vested.

    • The wording “to which the payment relates” is a limiting factor to clarify that which may be vested, namely that is only the interest in the property in which the default has occurred which will be affected. It is a phrase which appears in ss. 181(5) in relation to vesting the interest of the co-owner of a lease who is delinquent in payment. This limiting factor is to ensure that it does not extend beyond the property at hand as mining lands are by their nature speculative and may otherwise come into play in dealings between partners.

    • Municipally organized lands are regarded in a special light with respect to taxation. The Mining Act provides the allowance for municipal taxation of mining lands by diminishing the extent to which the mining land tax is applied to properties in municipalities. The Municipal Act proves the means for a municipality to collect upon accounts in default through the municipal tax sales process but does not provide the means to preserve the lands as mining lands; it can deal only with the surface rights. This limitation does not preserve and secure the intended mining uses of the land as set out in the original grant of mining lands. 

    • While there is the ability for the municipality to collect its outstanding taxes, the mining rights can be dealt with only under the Mining Act and can default and forfeit to the Crown only by the process outlined therein. There is no provision to sever the estates in property and mining lands when the owner is in default of payment of the mining tax. The Crown can enact forfeiture of the property and upon forfeiture every interest becomes vested in the Crown. 

    • In this way, mining lands which were alienated from the Crown to be used for mining purposes as a whole are to be preserved as a whole. Despite allowances for municipal purposes, the legislative scheme, when read in its entirety, does not support the past practice of the tribunal (up to 2006 and including the August 26, 1999 Vesting Order) of causing the severance from the mining right and the surface rights.

    • This position is further supported by other corresponding legislation, specifically the Escheats Act and the Conveyancing and the Law of Property Act

    • Lands which were granted under the Mining Act were exempt from taxes imposed by the Provincial Land Tax Act for lands without municipal organization. From MNDM’s perspective the intent and purpose of the Mining Act was to pressure the lands to be employed for mining purposes and preserve mining lands and mining rights for mining purposes. No other provision existed in the forfeiture process which would alleviate or negate this pressure by allowing the continuation of the adverse interest in lands when forfeited. There is clear intent to absolutely free the land from any adverse interest or claim and not encumber any lands subject to forfeiture through a severing of the interests in land and leaving a residual surface rights estate. The only means to be relieved of inherent mining tax pressure was through provision for exemptions and surrender. Apart from these options, there is no provision for the mining tax levy to be ignored thereby enabling the surrender of only the mining rights through default with the objective of retaining the interest in the surface rights. Acceptance of surrender is within the discretion of the Minister and unlikely to be exercised in favour of an owner whose mining taxes are in default. Section 200 provides that taxes, penalties and costs related to the mining land tax are a special lien against the property and may be realized through an action for sale of any or all property. 

    • The Mining Tax Titles Validity Act, 1924,  which remains in force to this day, states at section 2:

    • …where the Minister of Mines by his certificate given or purporting to be given under or in pursuance of the Mining Tax Act, has declared any mine, mining location, mining claim, mining land or other lands or mining rights forfeited to and vested in the Crown in right of the Province, any such declaration of forfeiture has heretofore been annulled, or revoked by order of the Lieutenant Governor in Council, such mine, mining location, mining claim, mining land, land or mining rights shall be deemed to be and to have been forfeited to and vested in the Crown in the right of the Province, and every patent or lease or other title whereby such mine, mining location, mining claim, mining land, lands or mining rights was, or were, or shall have been granted, leased or otherwise disposed of by the Crown shall be deemed to have been revoked and cancelled and the premises comprised therein vested in the Crown absolutely freed and discharged from any estate, right, title, interest, claim or demand therein or thereto whether existing, arising or accruing before or after such certificate was given. 

    • MNDM maintained that such forfeitures were absolute, with no residual ownership in mining lands continuing, such that the intent of the Mining Tax Act being to levy the mining tax on a mining property. The action to recover property in default was to have been taken against the property and the title or ownership of the property

    • The intent of s. 189 is consistent with other legislation pertaining to taxation such as the Provincial Land Tax Act and the Assessment Act in setting out what aspects of the property are liable for taxation. 

    • All taxes are levied against the property regardless of the scope of the tax or exclusions. It is the interest of the owner of the lands or mining rights which may become forfeit or vested where a default has occurred and what is dealt with is the lands or mining rights to which the non-payment relates. 

    • The only legislated limit to seizing a defaulting owner’s interest in lands is specified in the Municipal Act. When taking mining lands for municipal tax arrears under the Municipal Act specifies that there will be a severance of surface from mining rights. 

    • This exception is founded in the principle discussed by Thos. W. Gibson, The Mining Laws of Ontario and the Department of Mines, Toronto: Hebert H. Ball, 1933. At page 47:

      Findings of the Nickel Commission – The acreage tax is discussed from another point of view in the Report of the Royal Ontario Nickel Commission, footnote 1 1917. The Commission had been instructed, in addition to their main duty of investigating the nickel situation, to give their views as to a just and equitable system of mine taxation, having regard to the “best interest of Ontario, Canada, and the Empire.” …By “secondary purpose” was meant the pressure an acreage tax would exert on the owner of undeveloped mining lands to explore them and to work the minerals if any were found. Evidently the higher the tax the greater would be this pressure, consequently the natural reaction on the part of the owner would be either to explore his lands for their mineral value, or to surrender them and so relieve himself of the tax. The problem was to balance the claims of revenue as against the advantages of a reversion to the Crown with the possible result of the land passing into the hands of someone else who would develop it. 

    Assessment of taxes in Ontario

    • All land in Ontario is subject to assessment (the Assessment Act, R.S.O. 1990, c. A. 31) with a wide range of exemptions including Crown lands. These include municipal lands subject to the Municipal Act, S.O. 2001 and lands situate in territory without municipal organization under the Provincial Lands Tax Act, R.S.O. 1990, c. P 32. Taxes are levied under the Education Act, Drainage Act, Tile Drainage Act, Shoreline Property Assistance Act and for mining lands under the Mining Act. Under each of these various pieces of legislation, certain exemptions will apply.

    • Under both the Assessment Act and the Provincial Land Tax Act, exemptions are contemplated for assessments involving lands associated with mining. 

    • Each piece of legislation has a scheme for dealing with tax arrears. Under the Municipal Act, lands which are in arrears may be sold for taxes failing which they are vested in the municipality. Since 1954, mining rights have been excluded from this process. Prior to that time, a municipal tax tale resulted in the vesting of the entire interest. Now, not only are mining rights excluded but a severance is specifically created. 

    • The Provincial Land Tax Act provides that only the surface rights will forfeit to the Crown; this will occur only where there is a non-mining use of the surface and presumably has a corresponding exemption under the Mining Act . Lands without a non-mining use would fall within the exemptions and are not subject to the provincial Land Tax. There is no mechanism under this legislation for tax sale or reacquisition

    • The current version of s. 189 in which mining lands under municipal organization first appeared in The Mining Tax Amendment Act, 1946, S.O. c. 56, s. 3, 10 Geo. VI as section 14. In 1948 a subsection was added in which surface rights only being used for mining purposes could be subject to mining taxes. 

    Findings and Rationale for vesting of surface rights by tribunal

    • The tribunal acknowledged that it had been its practice, as that of its immediate predecessors, to vest only the mining rights in municipally organized lands, with the effect of causing a severance of the mining rights from the surface rights.

    • This was the case notwithstanding that a severance is not specifically mentioned in section 196.

    • Furthermore, it was acknowledged as being undesirable that no comparable vesting mechanism exists to vest the surface rights in an applicant who is obtaining the mining rights under the Mining Act.

    • The result of the interpretation and approach taken by the tribunal was that it could be virtually impossible for a co-owner of land which was originally alienated from the Crown as a mining lands patent in fee simple to obtain title to the severed surface rights of those mining lands for which a vesting order for the mining rights was readily obtained.

    • This was seen as unsatisfactory to those in the mining industry wishing to retain or obtain title to the entire estate as mining lands, notwithstanding the rights of access granted by subsection 50(1) of the Mining Act. Lands without title to the surface have long been considered problematic for the industry, a fact which is acknowledged by the tribunal.

    “Lands and mining rights”

    • When considering the use of the terms “lands or mining rights” the tribunal considered the rules of statutory interpretation “the limited class rule” ejustem genris and the “implied exclusion rule” expression unius est exclusion alturius but found them to be of no assistance. For example, to use the word lands as excluding mining rights would be unworkable. Recognizing that this is mining-centred legislation, the use of lands or mining lands includes mining rights so that the implied exclusion rule would be absurd. 

    • The tribunal noted that throughout, there are multiple references and variations of “lands and/or mining rights,” there is a general reference “lands”, followed by a specific reference, “mining rights”. The tribunal found that the general reference “and” encompasses the broadest group of interests in the patented lands or estate, namely fee simple. The specific reference to “mining rights’ is the lesser class of interests or estate in patented lands.

    • When considering the phrase “lands and mining rights”, the tribunal found, based upon grammatical and ordinary usage, that these terms impart the meaning that the largest estate is applicable to the facts is captured. It moves from the general to the specific. Mining rights are capable of being a separate estate or tenement or other hereditaments (for purposes of this discussion, land). This usage captures the largest estate held and will include all manners in which the lands came to be owned as mining lands, whether through staking out, location or subsequent use in mining after alienation from the Crown. 

    • After an examination of the use of the words “land” (172 references) and lands (300 references) the tribunal was not prepared to find that any original distinction in their meanings which may have once existed no longer does so, and that the distinction may have been lost by legislative draftspersons over time.

    • SS. 189(c) specifies that “all mining rights in, upon or under lands” are liable for mining tax. A similar phrase was considered in Mastermet Cobalt Mines Ltd. v. Canadaka Mines Ltd. 1978, (21 O.R. (2d) 494 (C.A.)) to which the Supreme Court of Canada stated that it agreed and dismissed the further appeal [1980] 2 S.C.R.119. The original Crown grant in 1906 was in fee simple as mining lands. There had been a conveyance of “mines, minerals and mining rights, in upon or under” the lands creating a severance of the mining rights from the surface rights. After extensive mining and accumulation of tailings, the content of those tailings became valuable. The Court of Appeal referred to sections 16 and 17 of the Conveyancing and Law of Property Act, R.S.O. 1970, c. 85 which were in effect when the surface rights were severed from the mining and mineral rights. The court also referred to the Land Titles Act, R.S.O. 1970, c. 234, cl. 43(1)(b), wherein the Master of Titles had discretion to register the owner of “any mines or minerals where the ownership…. has been severed….” The Court of Appeal referred to the definitions for the noun and verb , “mine”, reaching the conclusion that, according to the definition, it clouded the dealing with mineral bearing substance with the purpose of obtaining the mineral whether it had been previously disturbed or not. The Court stated at page 497:

      The Words “mine”, “mines” and “minerals” have been given different meanings in the various cases which deal with these words as used in particular statutes, or in leases and other conveyancing documents containing a reservation of mines and minerals, or as exceptions out of a grant of land. Most of these cases approach the problem whether a substance is a mineral as a question of fact to be determined by the use, character and value of the substance, in light of the common understanding of mining engineers, commercial men and landowners at the time of the conveyance: See Stroud’s Judicial Dictionary of Words and Phrases,  4th ed. Vol 3, p. 1671; A.-G. for Isle of Man v. Moore, [1938] 3 All E.R. 263;  Lord Provost & Magistrates of Glasgow v. Farie (1988), 13 App. Cas. 657l Seymour Management Ltd. et al. v. Kendrick et al.; Princeton, Third Party, [1978] 3 W.W.R. 202 ; Midland R. Co. et al. v. Robinson (1889) 15 App. Cas. 19.

    Facts in this case

    • In 1999, s. 1 stated that “mining rights” means the right to minerals on, in or under any land

    • The fact remains that the co-owner nonetheless within the municipality owns the entire fee simple estate.

    • Subsection 196(1) begins with the words, “Where lands or mining rights liable for tax are held by two or more co-owners…”. There is no provision that the vesting creates a severance.

    • The best explanation and interpretation for the phrase “lands or mining rights” is to encompass the largest estate possible in the interests involved.

    • Ss. 196(5) uses the phrase as well in relation to the vesting which is to take place, namely “make an order vesting the interest of the delinquent co-owner or co-owners in the lands or mining rights to which the payment relates”. 

    • The fact that s. 189 lists different interests in the land according to whether it is within or without municipal organization provides credence to MNDM’s assertion that the wording in clauses 189(1)(c) [and (d)] necessarily mean a manner to ensure that the mining tax attributable to land is not a double tax, duplicating the municipal taxes assessed under the Assessment Act

    • It is furthermore persuasive that clause 189(1)(e) uses different terminology: “all mining rights howsoever patented or acquired which are severed from or held apart or separate from the surface rights”. This phrase must mean something different from clauses 189(1)(c) and (d). 

    • It becomes unequivocal that the phrasing in question must mean something more than just bald mining rights when used in connection with mining tax.

    • In Citadel the tribunal did an analysis of the use of the words “lands and mining rights” in sections 197 and 200 in relation to forfeiture and special lien provisions. While publication in the Ontario Gazette pursuant to ss. 197(2) uses the term “property” otherwise, through-out, the terms “lands and mining rights” are used.

    • The tribunal found support from this usage that the interest which must vest in section 196 is the entire estate in which the delinquent co-owner has an interest.

    • The narrower but more purposeful reading of section 196 is to vest the entire interest in the “lands or mining rights” held by the co-owners. In other words, that would be the entire interest which was originally alienated from the Crown, unless a severance has intervened. 

    • The tribunal concluded that to sever mining rights from surface rights in the Mining Act would require clear and unequivocal language which is absent in s. 196.

    • The purpose of the Mining Act as set out in 1999 was:

    • Also applicable in 1999 was the Interpretation Act, R.S.O. 1990, c, I.11, which stated:

  15. Although its decision in Citadel came later in time than the 1999 vesting in this case, the law and reasoning remains sound.

  16. The tribunal finds that the interests which were to be vested in 1999 for interests in land in a municipality mean the greatest set of undivided interests held in the lands or mining rights and not a subset of those rights. Any reference in clause 189(1)(c) serves merely to delineate the subset of that estate to which the mining tax relates. The operative section for vesting is ss. 196(5) which refers to the “lands or mining rights”.

  17. In the 1971 Civil Rights Statute Amendment Act, the vesting provisions of what are now subsections 181(5) and 196(5) were re-enacted. While the subsections were re-written, of importance to this inquiry is the change to what was vested. Previously, it was “the interest of the delinquent co-owner …” which was changed to “the interest of the delinquent co-owner or co-owners in the lands or mining rights to which the payment relates…” 

  18. The 1971 amendments were part of the larger civil rights exercise which accompanied the enactment of the Statutory Powers Procedure Act, whereby all legislation in the Province was amended to address concerns raised by and in keeping with recommendations of the Royal Commission Inquiry into Civil Rights, (the “McRuer Report”) whose terms of reference, as set out at page 1, Volume 1, Report No. 1, in part state:

  19. In Chapter 118, found at page 1898 of Part V, Report Number 3, of the McRuer Report, there is a discussion, based in part upon information provided by the then Mining Commissioner, Mr. J.F. McFarland. There are 18 recommendations made for legislative changes. A typewritten list was inserted into the back of the tribunal’s copy of this Report, entitled, “Recommendations Contained in Volume 5 of The Royal Commission in Inquiry into Civil Rights Presided Over by the Honourable J.C. McRuer In their Relationship to Amendments to the Act as Agreed upon with Mr. D.W. Mundell, Q.C. Counsel to the Commission” appears to be the resulting decisions on the proposed legislative changes corresponding with the 18 recommendations. At the end is the following statement:

  20. There is no way for this document to be authenticated and its provenance is therefore uncertain. However, the amendment to what is section 196 is not included in the list of recommendations. The tribunal has relied upon chapter 14 of the McRuer Report, where at page 211 the Commission states that it’s “… survey of the statutes of Ontario shows that an extensive reappraisal and revision of statutes now conferring powers should be undertaken.”

  21. The changes to what became sections 181 and 196 in 1971 ensured that the vesting ordered by the tribunal could not take place without a hearing. A cursory survey of the Civil Rights Statute Law Amendment Act, 1971 discloses that all manner of statutes were amended to provide the right to some sort of hearing procedure before a final decision affecting them or their property was issued. So extensive are the revisions that the Acts amended are not dealt with according to Ministry but rather appear alphabetically, commencing with The Abandoned Orchards Act, 1966. Particular amendments to the Mining Act ensured that numerous decisions were made by the Commissioner and/or the recorder only after a hearing or that decisions affecting rights would not be made without providing notice. Examples include determinations of wilful contravention of legislative provisions, surface rights compensation and vesting of the interests of a delinquent co-owner. The insertion in 1971 of the words “to which the payment relates” occurred in both what is now subsections 181(5) and 196(5).

  22. Section 181 involves the vesting of “lands or mining rights” in a co-owner where another is delinquent in paying a proportion of rents or expenditures. With respect to leased lands, there is no issue of whether the rents involved would apply to the mining rights only for lands located within municipal organization. It is simply the greatest entire interest in the lands or mining rights which is vested.

  23. To the tribunal’s knowledge, section 181 has not been used in an application for vesting for failure to pay a proportionate share of development costs on patented freehold interests. It is unknown as to why this might be the case. Nonetheless, section 181 can be used in such cases and where it is so used, there is nothing to distinguish between the mining lands within a municipality and those located in territory without municipal organization. Therefore, section 181 would permit vesting of the entire freehold patented interest in mining lands located within a municipality. For this reason alone, the vesting under section 196 should be for like interest and should not be construed to have any other meaning.

  24. According to principles of statutory interpretation, the same words should have the same meaning. For example, in E.A. Driedger, Construction of Statutes 2nd. ed. Toronto: Butterworths, 1983, at page 93:

  25. This is echoed by R. Sullivan, Driedger on the Construction of Statutes 3rd ed. Toronto: Butterworths, 1994, commencing at page 163:

  26. The tribunal finds that the words, “to which the payment relates” used in subsections 181(5) and 196(5) must have the same meaning, particularly as they were enacted at the same time. In subsection 181(5), it is the lands or mining rights which are subject to rents or expenditures which are captured, as set out in subsection 181(2). In subsection 196(5), it is the lands or mining rights liable for tax held by two or more co-owners, as set out in subsection 196(1) which is captured in the vesting in subsection 196(5).

  27. This finding is in accord with [MNDM’s position] that the phrase is meant to circumscribe that the vesting may only take place with the entire interest, be it lands or mining rights, and not any adjoining or non-adjoining interests. This view is echoed under other legislative provisions, such as subsection 373(4) of the Municipal Act, 2001, which provides for current purposes that a tax arrears certificate shall not include more than one separately assessed parcel of land.

    Mining lands

  28. Each of the patents which are the subject matter of this case were mining lands patents, issued pursuant to provisions of the then current Mining Act. The definitions found in the legislation have not changed substantially over time. That found in The Mining Act of Ontario, R.S.O. 1914 [8 Edw. VII, c. 21] states:

  29. The phrases “lands and mining rights” and “lands or mining rights”, seen in all of the foregoing definitions, are echoed throughout Parts XIV and XIII, commencing with sections 659 and 187 which sets out that the tax is applicable to certain lands.

  30. These definitions capture those lands and rights whose title was given for mining purposes and lands which have come to be used for mining, as demonstrated by the phrase, “used or intended to be used for mining purposes”. Therefore, even lands which were alienated from the Crown through non-mining legislation or provisions (i.e. location for settlement or other purposes) but have come to be used for mining will be regarded as coming within the definition of “mining lands”. Unpatented mining claims are also captured. 

  31. Surface rights forming part of a mining lands patent may be characterized as mining lands surface rights. This is in accord with the definition of “mining lands” and finds accord with the provisions of the Provincial Land Tax Act whereby mining lands surface rights are not subject to that Act unless there is a non-mining use of the surface. This gives rise to the general question which encompasses the second issue before the tribunal. Does a severance caused by a municipal tax sale or registration of a tax arrears certificate irrevocably change mining lands surface rights to non-mining lands or ordinary surface rights? The specific question involving the registration of the tax arrears certificate and subsequent redemption will be examined below.

    “Mining lands” character of surface rights confirmed by Escheats Act

  32. The operation of the Escheats Act, when mining lands are forfeited to the Crown, although not relevant to the issue before the tribunal, provides another indication of the overall legislative intent of the combined effect of the statutes involved. The relevant sections are section 3 in the R.S.O. 1960, c. 149 and section 2 in the 1990 R.S.O., c. E.20:

  33. The Escheats Act refers to the “mining lands” which shall be dealt with under the Mining Act. It is noteworthy that “mining rights” as a lesser interest in “mining lands” are not singled out. The definition of “mining lands” requires that one look back to the time at which the interest is acquired to determine whether it involves “lands and mining rights” acquired as mining lands or “lands or mining rights” used or indeed to be used for mining purposes. 

  34. Surface rights may also be included in the definition of “mining lands” depending on the manner in which the lands came to be characterized as “mining lands.” The tribunal will characterize such surface rights as “mining lands surface rights”, which are included in what is contemplated by “mining lands” as it is used in the Escheats Act. There is no provision invoking the Escheats Act for the surface rights nor does the Public Guardian and Trustee become involved.

  35. In Re Irvine (1928), 62 O.L.R. 319 (C.A.), certain lands were granted by the Crown as mining lands and subsequently, the mining rights were severed from the surface rights. Questions arose concerning the dower rights of the estranged spouse of the deceased owner of the surface rights. At page 326, the Court stated:

    It is argued that the land of which the deceased became the owner is not and was not “mineral lands” or “mining land”, as he had only the surface and not the minerals. This, as it seems to me, is to ignore the wording of the [Dower] Act. The Act does not speak or purport to speak of “mining land,’ but of what is “granted by the Crown as mining land,” and, in my view, it makes no difference, for the purposes of this section, whether the land granted is mining land, or grazing land, or any other kind of land – in a word, it is not what kind of land it is but how the Crown in the grant describes it. It would never be argued that the section refers, for example, to land which is in fact “mining land” but not so described in the patent.

  36. The tribunal finds that the principle is applicable. Lands which have been patented as mining lands will remain mining lands until some step is taken to change their nature. Such would be the case where the surface rights have been severed and sold with the intent that they be used thereafter for non-mining purposes.

  37. In Trivett v. The Public Trustee, (1956) 3 M.C.C. 166, Godson, J.considered the case of a surface rights patent. The surface rights came to be held and used as mining lands which were forfeited to the Crown, pursuant to section 204 of the Mining Act, R.S.O. 1950, c. 236 [now section 184] and The Corporations Act, 1953, S.O. 1953, c. 19, s. 329. The Public Trustee maintained that the lands acquired by the Crown as a result of the forfeiture, fell under the Escheats Act. Godson, J.found at page 168:

  38. Unless the mining rights have been severed from the surface rights with the intention that the surface rights no longer be held or used for mining purposes, those surface rights remain mining lands. The greater legislative framework, beyond just the confines of the Mining Act very strongly supports the position that mining lands should remain mining lands unless an irrevocable and intentional step is taken to sever the surface rights. That is hardly how a section 670 or 196 vesting order of the tribunal should be characterized.

  39. The vesting of the interest of a delinquent co-owner in lands in a municipality is one legislative provision in the overall legislative scheme involving taxes, lands, escheats and mining whose terms are ambiguous. Given that there is no other means of vesting the surface rights as mining lands surface rights in the owner of the mining rights in cases where the delinquent co-owner cannot be located, the tribunal finds that this ambiguity must be construed in favour of the applicant non-delinquent co-owner of mining lands.

    Contextual analysis of Vesting Orders in the Mining Act

  40. There are currently five vesting provisions in the Mining Act, found at: section 68, where a co-holder of an unpatented mining claim is delinquent in contributing his or her proportionate share of assessment work, survey or first year’s rental; section 69, where a third party who performs assessment work on an unpatented mining claim is not paid for that work; section 74, for interests in unpatented mining claims of a deceased holder to be vested in his or her representative or estate; section 181, where a co-owner of a leasehold patent has not paid his or her proportionate share of rent or where a co-owner of either a leasehold or freehold patent has not paid his or her proportionate share of development work; and section 196, being the section under consideration.

  41. Within the context of the Mining Act taken as a whole, there is very little tolerance for mining lands being allowed to remain “fallow”. This is illustrated through the forfeiture provisions of unpatented mining claims, where assessment work must be performed within two years of recording and each year thereafter. Failure to perform the required assessment work will result in forfeiture. Moreover, no extension of time will be allowed where the first unit of assessment work has not been performed, demonstrating that the Mining Act not only requires steps which receive statutory recognition are required to maintain an interest in a mining claim, but grants allowances only to those who have already demonstrated intent to carry out their statutory requirements by their past actions in relation to a particular mining claim.

  42. The vesting provisions related to assessment work demonstrate the intolerance in the Act of those who do not contribute their share of the necessary assessment work and the rights of third parties performing that work to obtain all or a share of the unpatented mining claim. These provisions serve a concrete and practical purpose. Both sections 68 and 69 provide the person or persons who are willing to financially commit to the necessary assessment work with the opportunity to obtain a vesting order of the recorded holders who are not paying a proportionate share of the work. What is unusual about the vesting provisions of section 69, which is in addition to and beyond the lien provisions under the Construction Lien Act, R.S.O. c. C.30, is that the contractor, having performed the necessary work, is presupposed to have sufficient knowledge to carry out future statutory requirements for assessment work.

  43. Section 74 protects unpatented mining claims of a deceased holder for a period of one year, so that even where the estate executor is not knowledgeable, the claims will be protected from forfeiture and re-staking. The only shortcoming not addressed in this provision is that of an insolvent, deceased, intestate co-holder of unpatented mining claims where no one is willing to take out administration of the estate. Admittedly, this is sufficiently esoteric that it is an exception which will seldom arise.

  44. Sections 181 and 196 provide considerable protection to the delinquent co-owner, where the initial step in the proceedings, seeking an Order to Pay amounts owing, can be taken only after the amounts are outstanding for a period of four years. This higher standard for patented interests is in accord and reflects the type of protection afforded to property rights owners by the common law to owners of patented interests, where the law will be reluctant to divest that owner of his or her title. The time frame thus accords with current provisions for municipal tax sales under the Municipal Act, 2001. The current system varies from that described below applicable in 1980, which was pursuant to the Municipal Affairs Act, involving municipalities unable to meet their financial obligations. Currently, where municipal property taxes are owing on January 1 in the third year following that in which the real property taxes become owing, a tax arrears certificate may be registered on title. Owners are given one year from the date of the registration of the tax arrears certificate to pay the cancellation price. Otherwise the lands may be sold for taxes or vested in the municipality when the year expires. [ss. 373, 374, 375, 379]. There is no right of further redemption of ten years, as was found in earlier municipal tax sales provisions.

  45. Therefore, sections 181 and 196 vesting orders reflect a higher standard of compliance before patented leasehold or freehold mining lands will be irrevocably alienated from a delinquent co-owner. The objective of the vesting provisions is either payment of amounts due or a means to bring ownership into line with the intent to advance mining lands towards the ongoing accumulation of knowledge of geology and resource potential the ultimate objective of which is the successful discovery, development and production of a financially viable ore body.

  46. In a functional and contextual sense, discretion to vest rights in lands has been given to only the tribunal and not to any other statutory functionary under the Mining Act. In exercising that discretion on the matter of alienation of property rights, it is to apply its court-like jurisdiction. However, and more importantly, the provision for vesting circumscribes a clear system for furtherance of the objectives in a process which is, in the words of Rand J., in Dupont v. Inglis footnote 4 at page 541 one which is intended to be more expeditious and less formalistic than the regular courts:

  47. Moreover, the irrevocability of the vesting of the patented mining lands allows the owner to proceed with the degree of certainty that the risky nature of resource development may allow. Ostensibly, from the point of vesting forward, all those needed to negotiate options, joint ventures and the like can readily be brought to negotiations. Otherwise, the property would be frozen through the inability to contact and obtain the concurrence of all the owners registered on title. As those in the mining industry well know, it is virtually impossible to obtain financing for or to option a property whose future ownership cannot readily be resolved. The risks and amounts which may be involved are too great to have such uncertainty regarding ownership.

  48. The vesting provisions as a whole are included in the Mining Act with the purpose of furthering the objectives of the Act through propelling lands held forward through to successful development or through the return of the lands to the Crown to be opened for staking by others. It would be offensive to this scheme to allow the erosion of ownership resulting in the mining lands being marginalized through loss of rights to the surface which occurs without the intent of the owner.

  49. For example, the surface rights of mining lands remain as mining lands for purposes of the Escheats Act. Nonetheless, in this case, the only other way in which the undivided half interest in the surface rights of mining lands could only be re-acquired as mining lands, would be through forfeiture to the Crown … and subsequent sale to the co-owner as a surface rights mining lands patent. Why would the scheme require that a co-owner of mining lands within a municipality go through such a circuitous and costly route, when a co-owner of lands in unorganized territory does not? A non-delinquent co-owner of freehold patented lands owned by an individual … might arguably be entitled to make application for a vesting order pursuant to section 181 of the Mining Act upon performance of development work and failure of the delinquent co-owner to pay a proportionate share of that development work for a period of four years. Again, this would represent a circuitous and potentially unnecessarily costly route for vesting. Such machinations would be contrary to the context and objectives of vesting in general under the Mining Act. This is particularly so when such unnecessary steps would be required when the facts already exist for a vesting under section 196.

    Next steps

  50. The next steps can be ascertained from the following excerpts from Citadel commencing at page 49:

  51. The cautions of the Land Registrar were placed on the Parcel register pursuant to subsection 158(1) of the Land Titles Act, R.S.O. 1990. c. L.5, to prevent dealing with lands if it appears an error has been made. There is authority under subsection (2) for the correction of such error, if there is evidence that appears sufficient to the satisfaction of the Land Registrar.

  52. Vesting Orders of the tribunal have been given effect by the Land Registrars throughout the province without exception. It is unknown how the Land Registrar will regard this Order of the tribunal, whose principal purpose it is to correct the error arising out of the 1969 Vesting Order, including the Notice of Forfeiture issued by the Minister in his attempt deal with the concerns of the Land Registrar and which has caused further uncertainty in regard to title. 

  53. The tribunal does possess jurisdiction to deal with questions which arise under the Mining Act, which includes those questions arising under section 196. Section 105 provides:

  54. The question of whether this jurisdiction extends to answer questions involving the quieting of title questions on patented mining claims is not clear, but case law suggests that it does. In Minescape Exploration Inc. v. Bolen (1998), 39 O.R. (3d) 205 (Ont. Ct. Gen. Div.), Kurisko, J., who referred to the tribunal as the Mining Court, dealt with the question of the extent of the tribunal’s jurisdiction involving questions which fall outside the exclusive jurisdiction provision. He stated at page 213:

  55. In Brooks v. Pavlick [1964] S.C.R.108, 42 D.L.R. (2d) 572, the Supreme Court of Canada considered the jurisdiction of the Local Master of Titles in determining an application for first registration under the Land Titles Act, R.S.O. 1960, c. 204. In that case, the Local Master of Titles was called on to consider in making a determination regarding the application for first registration which involved a serious and substantial question of law affecting title. The Master and Supreme Court of Ontario both found the Master had jurisdiction to make such a determination.

  56. This decision was further appealed to the Court of Appeal, which found that the Master did not have jurisdiction. Upon further appeal to the Supreme Court of Canada, it was found that the Master did indeed have jurisdiction. The reasons behind this was that the registration scheme for titles did not come into existence in Ontario until 1885, so that it was not analogous to a power of a Superior, District or County Court at the time of Confederation. 

  57. In speaking for the Supreme Court, Spence J.referred to the decision of Schroeder J.A. of the Court of Appeal at length and at page 110 stated:

  58. In discussing section 21 of the Land Titles Act, Spence J.went on to state at page 113:

  59. And at page 114:

  60. The tribunal concludes that this matter should be brought to the Land Registrar or, if necessary, the Director of Titles, for consideration. There is clear jurisdiction in those statutory officers to consider matters which are connected with title issues. In this manner, it would be within their authority, based upon Brooks v. Pavlick to make a determination concerning giving effect to the tribunal’s order, even if that determination will require that they act judicially.

  61. In addition to the foregoing precedent, the courts have considered [the] unusual jurisdiction [of the Mining and Lands Commissioner] on several occasions. In McLean Gold Mines Ltd. v. A.G. Ont., [1924] 1 D.L.R. 10 (Ont. S.C.A.D.), 3 M.C.C. 25, in his dissenting judgement, at page 33, Meredith J.stated:

  62. This was admittedly not the decision of the majority, but over time, it has come to be the consistent view of the courts. Between the years 1924 and 1956, the Mining Court was created by the province and the Order-In-Council appointment was confirmed by fiat of the Governor General. When the legislation was once again changed back to that of the Office of the Mining Commissioner in 1956, a constitutional challenge of the Commissioner’s jurisdiction was determined in Dupont v. Inglis, [1958] S.C.R.535, 14 D.L.R. (2d) 417, 3 M.C.C. 237 (S.C.C.), rev’g [1957] O.R. 377, 3 M.C.C. 210 (C.A.). The issue in that case was whether the Commissioner had power to hear the appeal of a dispute determined by a mining recorder. The Supreme Court determined that he did. However, issues outside this were discussed in passing, at 245 and 246, 3 M.C.C.:

  63. This reasoning was picked up again in Minescape Exploration Inc. v. Bolen (1998), 39 O.R. (3d) 205 (Ont. Ct. Gen. Div.), where Kurisko, J., who referred to the tribunal as the Mining Court, stated at page 213:

    • The Mining Court has exclusive jurisdiction over any matter or thing arising under the Mining Act or involving interpretation of the provisions thereof or involving any right or claim under that Act.

    • The Mining Court and the General Division have concurrent jurisdiction in a proceeding brought in the Mining Court involving private civil and property rights relating to or arising out of matters governed by the Mining Act.

    Conclusions

  64. This Amended Vesting Order with Reasons, has been issued in order to provide the Land Registrar with the rationale to reverse the severance that was created in Mining Lands Patent 7971 and to enable the Land Registrar to deal with both the mining rights and the surface rights in a single document.

  65. The tribunal’s Vesting Order of August 26, 1999 and Amended Vesting Order of December 22, 2015, will be rescinded and replaced with this Order and the Land Registrar will be directed to use its best efforts to consolidate mining and surface rights so as to return Mining Lands Patent 7971 to its original state with its original obligations and rights flowing from the Mining Act.