COURT OF APPEAL FOR ONTARIO

CITATION: 2274659 Ontario Inc. v. Canada Chrome Corporation, 2016 ONCA 145

DATE: 20160224

DOCKET: C59945

Strathy C.J.O., LaForme and Huscroft JJ.A.

BETWEEN

2274659 Ontario Inc.

Applicant (Respondent)

and

Canada Chrome Corporation

Respondent (Appellant)

and

Minister
    of Northern Development and Mines

Intervener

Neal Smitheman, for the appellant

Paul Schabas, Robin Linley and Iris Antonios, for the
    respondent

John Kelly and Michael Burke, for the intervener

Heard: November 25, 2015

On appeal from the judgment of the Divisional Court
    (Justices David Aston, Michael R. Dambrot and Katherine E. Swinton), dated
    October 24, 2014, with reasons reported at 2014 ONSC 4446, 324 O.A.C. 116,
    setting aside the order of the Ontario Mining and Lands Commissioner, dated
    September 10, 2013.

Strathy C.J.O.:

Mining is the art of exploiting mineral deposits at a profit.
    An unprofitable mine is fit only for the sepulchre of a dead mule: T.A
    Rickard,
The Romance of Mining
(Toronto: MacMillan Co., 1944).

[1]

The same might be said of an inaccessible mine.

[2]

This appeal sees two mining companies fighting over access to valuable
    chromite deposits in northern Ontario.

A.

background

[3]

The parties have interests in separate chromite deposits in the Ring of
    Fire in northern Ontario. Access is a big problem. Each wants to build a
    transportation link. It will cost hundreds of millions of dollars, perhaps a
    billion or two. One solution would be to share the route and the cost. The
    appellant did not want to do that. It wanted to control the access.

[4]

In 2009 the appellant staked more than two hundred mining claims along a
    340-kilometre corridor of high ground northward from the CN rail line at Exton,
    Ontario, to a location near its Big Daddy deposit. It wanted to use the surface
    of these claims to build a railway to access and develop Big Daddy. It entered
    into a shareholder agreement with the respondent, a larger mining company, to
    secure the necessary investment to develop Big Daddy.

[5]

Around 2010, the respondent, which by then had majority ownership of Big
    Daddy, acquired ownership of the nearby Black Thor deposit. It decided to
    develop Black Thor, rather than Big Daddy. Without the respondents backing,
    the appellant, a junior mining company, could not develop Big Daddy on its own.

[6]

The respondent wants to build a publicly-accessible road leading to its
    proposed mine. The road would cross 108 of the appellants claims. To obtain
    the right to build on those claims, the respondent applied to the Minister of
    Natural Resources under s. 21 of the
Public Lands Act
, R.S.O. 1990, c.
    P.43, for a disposition of the surface rights over portions of the appellants
    claims. It also sought an easement over Crown lands to permit it to build the
    road.

[7]

The respondent asked the appellant to consent to an easement. When the
    appellant refused, the Minister of Natural Resources referred the application
    to the Mining and Lands Commissioner (MLC) under s. 51(2) of the
Mining Act
,
    R.S.O. 1990, c. M.14 (the
Act
).

[8]

The MLC dismissed the application, and the respondent appealed as of
    right under s. 133 of the
Mining Act
. The Divisional Court allowed the
    appeal, finding the MLCs decision, and its interpretation of the
Act
,
    were unreasonable. Rather than remit the matter to the MLC, the Divisional
    Court made an order dispensing with the appellants consent.

[9]

The appellant appeals the Divisional Court order and asks that we
    reinstate the order of the MLC. For the reasons that follow, I would dismiss
    the appeal.

B.

Issues on the appeal

[10]

The
    appeal raises questions of statutory interpretation on the one hand and the
    application of a statutory standard on the other. The statutory interpretation
    issues are (a) what are the statutory rights of a mining claim holder in the
    surface of the claim? and (b) what priority, if any, does the holder enjoy over
    others who want to use the surface for other purposes?

[11]

The
    application of the statutory standard requires a determination of whether the
    respondents proposed use would interfere with the appellants exploration and
    mining activities on its claims. This determination takes place against the
    backdrop of the legislative purpose, discussed below, of encouraging the
    multiple use of surface rights on mining lands.

C.

Statutory Provisions

[12]

The
    statutory interpretation issues centre on ss. 50 and 51 of the
Act
, as
    in force at the time of the dispute, which come under the heading Rights of Licensee.
[1]

[13]

Subsections
    50(1) and (2) set out the rights attached to a mining claim. A mining claim
    is defined in s. 1 as a parcel of land, including land under water, that has
    been staked and recorded in accordance with the
Act
and the
    regulations.

[14]

Under
    s. 50(1), staking a claim confers only the right to perform the assessment work
    prescribed by the
Act
or to obtain a lease from the Crown. It does not
    confer any other right, title or interest in the mining claim. Staking confers
    no right to take or remove any minerals found in the claim. Subsection 50(1)
    states:

The staking or the filing of an application for or the
    recording of a mining claim, or the acquisition of any right or interest in a
    mining claim by any person or all or any of such acts, does not confer upon
    that person,

(a) any right, title, interest or claim in or to
    the mining claim other than the right to proceed as is in this Act provided to
    perform the prescribed assessment work or to obtain a lease from the Crown and,
    prior to the performance, filing and approval of the first prescribed unit of
    assessment work, the person is merely a licensee of the Crown and after that
    period and until he or she obtains a lease the person is a tenant at will of
    the Crown in respect of the mining claim; or

(b) any right to
    take, remove or otherwise dispose of any minerals found in, upon or under the
    mining claim.

[15]

Subsection
    50(2) deals with the extent of the claim holders right to use the surface. It
    permits the holder to enter and use the part or parts of the surface of land
    that are necessary for the purpose of prospecting and development of the
    mines, minerals and mining rights
therein
.
    Subsection 50(2) reads:

The holder of a mining claim does not have any
    right, title or claim to the surface rights of the claim other than the right,
    subject to the requirements of this Act, to enter upon, use and occupy such
    part or parts thereof as are necessary for the purpose of prospecting and the
    efficient exploration, development and operation of the mines, minerals and
    mining rights therein.

[16]

Surface
    rights are defined in s. 1 as every right in land other than the mining
    rights.

[17]

Subsection
    51(1) deals with the priority of the holder of an unpatented mining claim to
    use the surface rights for prospecting and the efficient exploration,
    development and operation of the mines, minerals and mining rights. Unpatented,
    when referring to land or mining rights, is defined in s. 1 as land or mining
    rights for which there is no patent or lease or other form of Crown grant in
    effect. Subsection 51(1) reads:

Except as in this Act is otherwise provided, the holder of an
    unpatented mining claim has the right prior to any subsequent right to the user
    of the surface rights, except the right to sand, peat and gravel, for
    prospecting and the efficient exploration, development and operation of the
    mines, minerals and mining rights.

[18]

The
    balance of s. 51 deals with the process when there is a request for disposition
    of surface rights under the
Public Lands Act
. If the holder of an
    unpatented mining claim does not consent to such a disposition, s. 51(4) [now
    s. 51(2)] provides a mechanism for dispensing with consent after a reference to
    and hearing by the MLC.

D.

Reasons Below

(a)

Mining and Lands Commissioner

[19]

The
    MLC found that s. 51(1) and not s. 50(2) applied to the appellants claim. In
    its view, the two provisions dealt with different claims and different types of
    land.

[20]

First,
    it held that s. 50(2) described the surface rights of a mining claim, while
    s. 51(1) addressed the surface rights of an unpatented mining claim. Since
    the appellants claim was unpatented, s. 50(2) did not apply.

[21]

The
    appellant had not made this submission to the MLC and the appellant
    acknowledged before the Divisional Court that the interpretation was erroneous
     an unpatented mining claim is a subset of a mining claim and s. 50(2)
    applies to both.

[22]

The
    second distinction made by the MLC was based on the ownership of the land. It
    found that s. 50(2) applied to lands that were privately-owned, while s. 51(1)
    applied to lands owned by the Crown. The use of the word therein in s. 50(2)
    limited the rights of the claim holder on privately-owned land to certain part
    or parts of the surface.

[23]

But,
    said the MLC, the rights of the claim holder on publicly-owned land are not so
    limited. Because s. 51(1) does not contain the word therein, it gives the
    claim holder a prior right to use the surface for

all
activities covered by the
Act
.

[24]

The
    MLC therefore concluded that the focus of the hearing was the interpretation of
    s. 51, having regard to the
Act
as a whole. Section 50(2) did not
    enter into the analysis of whether consent should be dispensed with under s. 51.
    Nor could it limit the use of the surface by the holder of an unpatented mining
    claim on Crown land.

[25]

Accordingly,
    in the view of the MLC, the purpose for which the appellant wanted to use the
    surface of its claims did not have to be related to the exploration,
    development and operation of the mines, minerals and mining rights
therein
.

[26]

Since
    the
Act
did not say anything definitive about the uses that the holder
    of an unpatented mining claim could put to the surface, the MLC was not
    prepared to say that the use was limited to the development of a mine.

[27]

The
    MLC recognized the public interest in the multiple use of lands, and held that each
    party bore an onus of showing how their rights would be affected by the
    outcome. The MLC found that granting an easement to the respondent to develop a
    road over the site of the proposed railway line would negatively affect the
    development of the appellants mining claims. In its view, it was not possible
    to balance the parties rights and thus the appellant should not be forced to
    share its right to use the surface.

(b)

Divisional Court

(i)

Sections 50 and 51

[28]

The
    Divisional Court noted that the MLC was a specialized body that dealt with
    mining issues. It identified the appropriate standard of review as one of
    reasonableness.

[29]

The
    Divisional Court found that the MLCs interpretation of the
Act
was
    unreasonable and that it reached an unreasonable decision in refusing to
    dispense with the appellants consent. The MLC made an unwarranted distinction
    between the surface rights of mining claim holders based on whether the land
    was privately-owned or Crown land. That distinction was inconsistent with the
Act
and with the purpose of s. 51(1).

[30]

Section
    50(2), the Divisional Court held, is the source of surface rights of
all
claim holders. It is not limited to surface rights
    that are privately-owned. It applies to all mining claims, including mining
    claims that have not been taken to patent.  These surface rights are restricted
    to the parts of the land necessary for mining activities
on
    the claim
.

[31]

The
    Divisional Court noted that s. 51 has two functions. First, it grants a limited
    priority to the unpatented claim holder to use the surface (other than the
    right to sand, peat and gravel) over the subsequent rights of others to use the
    surface. That priority is not for all purposes. It is for the purpose of
    prospecting and exploring and developing mines, minerals and mining rights on
    the claim itself. Second, the section provides a dispute resolution mechanism when
    there are competing claims to the use of surface rights.

[32]

The
    Divisional Court explained that s. 51(1) does not confer on the holder of an
    unpatented claim additional surface rights, beyond those conferred in s. 50(2).
    Instead, it confers priority to the claim holder to use the limited surface
    rights provided by s. 50(2).

[33]

In
    its view, the different purposes of ss. 50(2) and 51(1) explain the absence of
    reference to therein in s. 51(1), an omission that the MLC found significant.
    Section 51(1) does not contain a restriction to mineral prospecting therein
    that is, in the claims themselves  because the source of the claim holders
    surface rights is s. 50(2).

[34]

The
    MLCs misinterpretation of ss. 50 and 51 gave surface rights to holders of
    unpatented mining claims that could be exercised for any purpose tied to mining
    activities anywhere  rather than on the lands that were the subject of the
    claim. This, the Divisional Court held, was not consistent with the statute.

(ii)

Sharing of Surface Rights under s. 51
    Interference

[35]

Next,
    the Divisional Court turned to the question whether the appellants surface
    rights on its claims should be shared with the respondent. It agreed with the
    MLC that each party had an evidentiary onus to establish whether multiple uses
    of the surface rights were possible. It found that the MLC erred in law,
    however, by requiring the respondent to lead evidence of a public interest in
    its proposed use. The public interest in multiple uses of Crown lands was a
    given.

[36]

The
    Divisional Court noted that s. 51(1) gives priority to the claim holder to use
    the surface rights to explore and exploit minerals on the claims. The
    appellants proposed railway was not planned to develop the mining claims, but
    instead to provide a transportation corridor to permit the development of a
    mineral deposit far removed from the location of the claims. It was
    unreasonable then, in its view, for the MLC to have considered whether the
    respondents proposed easement to build a road would interfere with the
    appellants plan to build a railway. The appellant was not entitled to claim a
    priority for that project under s. 51(1).

[37]

In
    an issue that assumed some importance in the submissions before this court, the
    Divisional Court noted that there was some suggestion in argument that the
    definition of mine, which includes ways and works, could include a railway.
    The Divisional Court concluded that the appellants proposed railway was not to
    be used to extract minerals from the claims themselves. Therefore, it was not a
    use for which the appellant could claim priority under s. 51(1).

[38]

The
    Divisional Court held that it was unreasonable for the MLC to find that the
    proposed easement would interfere with the appellants exploration for minerals
    on the claims in question. The evidence, it said, did not reasonably support a
    finding of interference with the appellants plan to extract aggregate or
    diamonds on the claims, assuming those minerals were found.

(iii)

Remedy

[39]

The
    Divisional Court set aside the MLCs decision and dispensed with the
    appellants consent. It concluded that the exceptional circumstances of this
    case militated against the usual remedy of remitting the matter for
    reconsideration by the MLC.

[40]

The
    Divisional Court accepted the respondents submission that it should dispose of
    the application because there was, on the evidence, only one reasonable
    outcome. While this required a more extensive analysis of the evidence than
    usual, and would bypass the expertise of the tribunal, a narrow focus on the
    relevant evidence led to this conclusion.

[41]

This
    was because the appellant had not established that the proposed easement would
    interfere with mining activities on the claims to such a degree that multiple
    uses of Crown lands were not possible. The appellants main objective in
    staking the claims was to gain control of a transportation corridor where it
    might eventually build a railway. Its priority to the use of the surface rights
    of its claims did not allow it to control the surface of the land for that
    purpose.

[42]

The
    Divisional Court also noted that there were only three members of the tribunal,
    two of whom had sat on the matter and had expressed frustration with the
    respondents conduct on a number of occasions. It held that fairness required
    that the matter proceed before a differently constituted tribunal. However, if
    the matter were remitted to the MLC, there might be only one commissioner able
    to hear it.

[43]

The
    Divisional Court concluded that the only appropriate disposition was to
    dispense with the appellants consent under s. 51(5) and leave it to the
    Minister to decide, in the next stage of the process, whether an easement
    should be granted to the respondent in the public interest, and on what terms.
    The appellant would have an opportunity to participate at that stage and to
    request terms to protect its legitimate interest in its mining claims.

E.

Analysis

(a)

Standard of Review

(i)      Divisional
C
ourt

[44]

The
    Divisional Court recognized that the MLC is a specialized body with expertise
    in mining issues and familiarity with the
Act
. The nature of the
    statutory interpretation question is such that it should be reviewed on a
    reasonableness standard, as this court held in
Ontario (Minister of
    Transportation) v. 1520658 Ontario Inc
., 2011 ONCA 373, 105 O.R. (3d) 321,
    at paras. 16-35.

[45]

Following
Dunsmuir v. New Brunswick
, 2008 SCC 9, [2008] 1 S.C.R. 190, at para.
    47, the Divisional Court correctly held, at para. 20, that this standard
    requires the reviewing court to consider ... whether the decision falls within
    a range of possible, acceptable outcomes which are defensible, given the facts
    and applicable law.

[46]

The
    question for the Divisional Court to ask then was not whether the MLCs
    interpretation of the
Mining Act
was correct, but whether the MLCs
    interpretation was one the statute could reasonably bear. Although this was the
    standard initially set out by the Divisional Court, its analysis unfortunately used
    the language of correctness at times, in responding to arguments about whether
    the MLC erred in law.

[47]

Overall,
    however, I take the Divisional Courts reasons as holding that the MLCs statutory
    interpretation was unreasonable. In the course of deciding whether the MLCs
    interpretation was one that the legislative text could reasonably bear, the
    Divisional Court was entitled to, and did, conduct its own statutory analysis.
    This was the approach taken by the Supreme Court of Canada in
British
    Columbia (Securities Commission) v. McLean
, 2013 SCC 67, [2013] 3 S.C.R.
    895, at paras. 37-70; and in
Canada (Canadian Human Rights Commission) v.
    Canada (A.G.)
, 2011 SCC 53, [2011] 3 S.C.R. 471, at paras. 32-64.

(ii)

This court

[48]

The
    standard of review to be applied in an appeal from the Divisional Court on its
    interpretation and application of the
Act
is correctness:
Canada (Information
    Commissioner) v. Canada (Minister of National Defence)
, 2011 SCC 25, [2011]
    2 S.C.R. 306, at para. 23;
Housen v. Nikolaisen
, 2002 SCC 33, [2002] 2
    S.C.R. 235, at paras. 8-9. That means this court must scrutinize whether the
    Divisional Court correctly found that the MLCs decision was unreasonable. The
    standard of review by this court as to the Divisional Courts own choice of
    standard of review is also correctness.

[49]

On
    remedy, the Divisional Courts decision to substitute its own decision on the
    basis that there was only one reasonable outcome involved the application of a
    legal standard to a set of facts. It was a question of mixed fact and law,
    reviewable on a standard of palpable and overriding error:
Housen
, at
    paras. 26, 36-37;
Telus Communications Inc. v. Telecommunication Workers
    Union
, 2014 ABCA 199, 575 A.R. 325, at para. 34.

(b)

Interpretation of ss. 50 and 51

[50]

I
    agree that the interpretation given to ss. 50(2) and 51(1) by the Divisional
    Court  as summarized above and set out in detail in its reasons at paras. 34
    to 56  is the only reasonable interpretation of those sections. Those sections
    make no distinction between public and private lands, and the MLCs decision
    offers no basis for drawing such a distinction. The Divisional Court was then
    correct to apply its interpretation to its review of the MLCs decision  when
    there is only one reasonable interpretation, the tribunal must adopt it in any
    event:
McLean
, at para. 38.

[51]

Subsection
    50(1) sets out the rights of the holder to use the surface of the claim for
    defined purposes related to the mining claim.

[52]

Section
    51 gives the holder a limited priority to use the surface of the claim, for the
    purposes set out in s 50(2), over the subsequent rights of others to use the
    surface.

[53]

The Divisional Court properly considered the
    legislative history and purpose of these provisions. Prior to 1957, the holder
    of a mining claim could obtain both mining rights and surface rights, simply by
    staking a claim and carrying out the prescribed assessment work. This gave rise
    to concerns that public lands could be alienated from the Crown forever. In
    1957, the
Mining Act
was amended to permit the
    Crown to reserve, in a patent or lease, all surface rights necessary for any
    purpose other than mining, that were not essential to the development of the
    mines, minerals and mining rights. At the same time the predecessor to the
    present s. 50(2) was added to the statute:
Mining Amendment Act,
    1957
, S.O. 1957, c. 71, ss. 5, 9. As noted in the Report
    of the Public Lands Investigation Committee, 1959, (published 1961) the purpose
    of the latter amendment was to encourage the multiple use of the surface rights
    on mining lands.

[54]

The
    limited priority conferred by s. 51 therefore protects the multiple use principle
    through the dispute resolution procedure contained in s. 51(4) and following
    [now s. 51(2) and following]. The priority is for the purpose of prospecting
    and exploring and developing mines, minerals and mining rights. Section 51(1)
    does not confer additional surface rights beyond those conferred by s. 50(2).

[55]

The
    MLCs exclusion of s. 50(1) from the interpretive exercise led it to conclude
    that the word therein in s. 50(1) was inapplicable to unpatented mining
    claims covered by s. 51(4). Taken to its logical result, the surface rights of
    claim holders on Crown land could be exercised for any purpose that could be
    tied to mines, minerals or mining rights
anywhere.
In contrast, the two sections must be read together to give effect to the
    legislative purpose of encouraging multiple uses of surface rights.

[56]

As
    the Divisional Court concluded, at paras. 55 and 56:

Thus, there is no restriction in s. 51(1) to mineral
    prospecting and exploration "therein", meaning the claims themselves,
    because the source of the mining claim holder's rights to use the surface is
    found in s. 50(2). Subsection 51(1) is dealing with priorities. It gives
    priority to an unpatented mining claim holder to use the surface rights
    recognized in s. 50(2) in relation to subsequent users. That priority is to
    allow exploration and development of the particular mining claim that the
    unpatented claim holder seeks to develop.

In conclusion, the MLC adopted an unreasonable interpretation
    of s. 50(2) when it held that the restrictions on surface rights found in s.
    50(2) did not apply to unpatented mining claims on Crown land. Consequently,
    its interpretation of s. 51(1), as conferring broader surface rights to
    unpatented mining claim holders on Crown lands, was also unreasonable and
    unjustified by the language of the Act.

[57]

I
    turn now to consider the definition of mining or mine.

(c)

Mining or mine

[58]

In
    s. 1 of the
Act
, a mine includes all ways, works, machinery, plant,
    buildings and premises below or above the ground relating to or used in
    connection with a mine.

[59]

In
    my view, the Divisional Court was correct to hold that it was unreasonable for
    the MLC to have considered whether the proposed easement to build a road would
    interfere with the appellants plan to build a railway because the appellant
    could not claim priority for that project under s. 51(1).

[60]

Likewise,
    the only reasonable interpretation of the
Act
is to read it as meaning
    that a proposed railway is not a mine
.
The surface rights of the
    holder are limited to the parts necessary for prospecting, exploration and
    mining therein  that is, in the claims themselves, not in claims at a
    distant location.

[61]

My
    conclusion is not affected by the appellants submission concerning s. 175 of
    the
Act
. That provision permits the owner, lessee or holder to obtain
    from the MLC after a hearing, rights of passage over other lands for the
    purpose of its operations. The appellant submits that if it is entitled to
    obtain an easement for passage over property in which it has no interest, it
    must be able to construct the railway to complete the link.

[62]

This
    submission was raised for the first time in oral argument before this court and
    not made to either the MLC or the Divisional Court. I do not find it persuasive.
    It does not affect my view of the reasonableness of the MLCs decision on
    surface rights. In fact, it points to a mechanism, other than staking mining
    claims, whereby the owner can obtain access to its mine. The owner does not
    have to stake claims in order to do so.

(d)

Interference with
the appellant
s exploration

[63]

The
    Divisional Court was correct in holding that the application would have been
    allowed if the
Act
had been applied in a reasonable manner, since
    there was no evidence that the proposed easement would interfere with the
    appellants exploration or mining of its claims.

[64]

It
    found, at para. 90, that there was no basis in the evidence for the MLC to
    conclude that there would be interference with mining
exploration
or development of minerals such as these on the claims themselves (emphasis
    added).

[65]

It
    found that the MLC failed to engage with the evidence, or lack of evidence,
    concerning the appellants actual or proposed use of its mining claims. The
    Divisional Court observed, at paras. 96 and 97:

the focus of the MLCs analysis should have been the proposed
exploration
and mining activity on the CCC claims.
    It should have considered the evidence of actual and proposed activity -
    whether for consolidated aggregate or diamonds and base metals - and assessed
    the actual or probable impact of the proposed road
on
    those activities
in the claims. It did not engage with the evidence and
    make the necessary findings of fact respecting interference and the magnitude
    of the interference.

Given the unreasonable interpretations of the legislative
    provisions and the failure to engage with the evidence - or lack of evidence -
    of interference with actual or proposed mining activity to exploit the minerals
    in the claims, the MLC decision is not reasonable. Accordingly, the appeal must
    be allowed, and the decision to dismiss Cliffs application must be set aside.
    [Emphasis added.]

And at para. 104:

The focus of the MLC inquiry should have been the evidence of
    interference with actual or potential mining activities by CCC on its claims.
    If there was some interference of significance, the MLC should have considered
    whether there could be accommodation, so as to permit multiple use of Crown
    lands.

[66]

I
    do not agree with the appellant, therefore, that the Divisional Court ignored
    the issue of interference with exploration.

[67]

The
    appellants argument really amounted to this: although there was no evidence
    that its claims (which were admittedly staked to obtain access to Big Daddy)
    contain minerals of any value, it should nevertheless be able to exercise a
    veto over the use of the surface by others because it might, someday, discover
    minerals on its claims.

[68]

The
    MLCs responsibility, under s. 51(5) of the
Act
, was to make an order
    based on the merits of the application. In the absence of any evidence that
    the proposed use would in fact interfere with exploration or mining activities
    on the claims, the Divisional Court was correct in finding that the MLCs
    decision on this point was unreasonable.

(e)

Remedy

[69]

The
    Divisional Court correctly noted that while the usual remedy in overturning the
    decision of an administrative tribunal is to remit the matter for
    reconsideration, the court could substitute its own decision for that of the
    tribunal in exceptional circumstances.

[70]

In
    deciding not to remit the matter to the MLC for reconsideration, the Divisional
    Court referred to this courts decision in
Stetler v. Ontario Flue-Cured Tobacco
    Growers Marketing Board
, 2009 ONCA 234, 311 D.L.R. (4th) 109. In that
    case, as is in this, this court agreed with the Divisional Court that the
    tribunals decision was unreasonable.

[71]

This
    court, at para.
42 of
Stetler
,
    referred to
Giguère v. Chambre des notaires du Québec,

2004 SCC 1,
[2004] 1 S.C.R. 3
, at para.
66, which states that although [a] court of law may
    not substitute its decision for that of an administrative decision-maker
    lightly or arbitrarily, exceptional circumstances may warrant the court
    rendering a final decision on the merits.

[72]

In
Stetler
, this court stated that exceptional circumstances could include
    situations where remitting the case would be pointless, where the tribunal is
    no longer fit to act, and cases where, in light of the circumstances and the
    evidence in the record, only one interpretation or solution is possible, that
    is, where any other interpretation or solution would be unreasonable.

[73]

After
    conducting its own examination of the record, the Divisional Court concluded
    that on a proper application of the statutory test to the relevant evidence,
    there was only one reasonable outcome: to dispense with the appellants consent
    under s. 51(5) of the
Act.
This would leave it to the Minister of
    Natural Resources to determine the issue, after an environmental assessment and
    consultation with other affected interests  a process in which the appellant
    would be entitled to participate.

[74]

In
    coming to this conclusion, the Divisional Court was required to review the
    evidence (or lack thereof) on the factors relevant to dispensing with consent:
    whether there was interference with the respondents mining claims; the
    feasibility of the respondents plan to build a railway; the presence or
    absence of mineral deposits on the claims; and what inferences could be made as
    to the respondents motives in staking the claims along the transportation
    corridor.

[75]

This
    aspect of the decision was one of mixed fact and law. In my view, the
    Divisional Court applied the correct legal principles and did not commit any
    palpable and overriding errors. I would defer to its decision.

F.

disposition

[76]

For
    these reasons, the appeal is dismissed, with costs inclusive of the motion for
    leave to appeal fixed at $40,000, inclusive of disbursements and all applicable
    taxes. There is no order as to costs for or against the intervener.

G.R. Strathy C.J.O.

I agree H.S. LaForme
    J.A.

I agree Grant
    Huscroft J.A.

Released:
February 24, 2016

[1]
The provisions were amended in 2009, but the amendments were not
    in force at the time of the hearing before the MLC. The application was decided
    on the basis of the law prior to the 2009 amendments.


COURT OF APPEAL FOR ONTARIO

CITATION: Baptista v. Safranko, 2016 ONCA 114

DATE: 20160209

DOCKET: C60887

Hoy A.C.J.O., Pardu and Roberts JJ.A.

BETWEEN

Maria Baptista

Plaintiff/Respondent

and

Ted Safranko
and Ana
    Baptista

Defendants/
Appellant

Maurizio P. Artale, for the appellant

Amandeep Sidhu, for the respondent

Heard and released orally: February 5, 2016

On appeal from the order of Justice Irving W. André of
    the Superior Court of Justice, dated July 17, 2015.

ENDORSEMENT

[1]

The appellant, Ted Safranko, submits that the motion judge erred in
    refusing to set aside default judgment against him, on the ground that he did
    not have an arguable defence on the merits.

[2]

The motion judge correctly articulated the test set out in
Mountain
    View Farms Ltd. v. McQueen
, 2014 ONCA 194, but the appellant submits that
    on the facts before him, the motion judge ought to have concluded that there
    was an air of reality to the defence.

[3]

In para. 55 of
Mountain View Farm Ltd.
, the court indicated:

A motion judges decision to set aside a default judgment is a
    discretionary one that will attract deference on appeal. It should not be
    interfered with absent an error in law or principle, a palpable and overriding
    of fact, or unless the decision is so clearly wrong as to amount to an
    injustice.

[4]

The respondent, then a 69 year-old widow, placed mortgages on her home
    to help her daughter and the appellant, her daughters then partner, purchase a
    home. The appellant submits that these advances were a gift and not a loan. The
    respondents evidence was supported by the evidence of the mortgage broker who
    testified that the proceeds from the $168,000 mortgage taken out by the
    respondent were advanced to the appellant and the respondents daughter by way
    of loan and that the appellant had later personally explored with him the
    possibility of raising funds to discharge the debts to the respondent.

[5]

The appellant also stated in text messages to the respondents daughter
    that her mother was owed $168,000, stated in writing on another occasion that
    the respondent was to be paid first, and referred to their obligations to the
    respondent in other written communications.

[6]

Payments on the mortgage were not made by the respondent but out of her
    daughters bank account, consistent with a loan rather than a gift. The
    respondent denied ever signing a statement that the advance was a gift.

[7]

Given the appellant's own communications admitting to the indebtedness, the motion judge did not err in concluding that there was no air of reality to the defence asserted in the motion to set aside the default judgment.

[8]

No error having been demonstrated, the appeal is dismissed. The
    respondent is entitled to her costs of the appeal fixed in the amount of
    $8,000, inclusive of HST and disbursements.

Alexandra
    Hoy A.C.J.O.

G.
    Pardu J.A.

L.B.
    Roberts J.A.