History of the Ontario Mining and Lands Commissioner
The history of the Ontario Mining and Lands Commissioner.
Introduction
In 1992, when I was first appointed as Mining and Lands Commissioner, there was no single publication in existence which provided any sort of overview to explain the current nature of this old and important function. Even tracking down the actual jurisdiction for me or anyone wishing to deal with the Office was a challenge, with responsibilities found not only in statute and regulation but even in an Order in Council, something which was not readily accessible or widely known. Over the years, learning from a considerable body of case law, those very able statutory officers of the legislation within my jurisdiction and parties and their representatives appearing in front of me, I have developed a healthy respect for the unique and breathtakingly complex entity which is the Office of the Mining and Lands Commissioner. I could not help but wonder that if I experienced such challenges to become informed, how were the lawyers acting on behalf of parties to regard this Office? My overriding concern has been for the parties and in particular the prospectors and junior mining companies in seeking to ensure that its long historic tradition and experience be permitted to remain intact.
I commissioned the writing of this history in the firm belief that the current status and role of the Mining and Lands Commissioner cannot properly be understood without a thorough understanding of the legislative vehicles used, selection of the "commissioner" and one time "judge" as the decision-maker, the history of the development of the legislation and relevant case law, all framed within the larger constitutional law context. To arrive at an informed appreciation, an analysis of what it means to be a "commissioner" is necessary as there is often the tendency to confuse it with "commissions", commonly understood as forming part of the group of agencies, boards and commissions within the context of administrative law. A commissioner is but part of the august group of magistrates, justices of the peace or inferior courts which have a long history in English jurisprudence. Similarly, it is necessary to examine the history of the role of the Commissioner and one time judge through an examination of relevant developments in constitutional law which ran parallel to its own early legislative evolution. My goal throughout has been a complete understanding of the Office of the Mining and Lands Commissioner as it exists today.
In carrying out its functions under the Mining Act, the Mining and Lands Commissioner was characterized in the late 1950s by the Supreme Court of Canada as an inferior Court of appeal or review and somewhat more recently in the late 1990s by the then Ontario Court (General Division) as the Mining Court, having exclusive jurisdiction over any matter arising under the Mining Act and concurrent jurisdiction with what is now the Superior Court of Justice (General Division) in proceedings brought involving private civil and property rights relating to or arising out of matters governed by the Mining Act. Still, some confusion exists around whether the Mining and Lands Commissioner is wholly an administrative law entity, although to be fair, the Office has never been listed as an agency, board or commission, or been made subject to most of the statutory reforms associated with such entities.
Throughout the writing of this short history, it has been my privilege to review, comment and discuss with its author, Marianne Orr, current Deputy Mining and Lands Commissioner and sometime counsel to the Office during my tenure, many of the points raised and cases referred to. Upon becoming increasingly familiar with constitutional cases dealing with the jurisdiction and constitutionality of inferior courts, greater insight became available for the drafting and interpretation of the Mining Act. What also became apparent was that many of the more recent amendments were crafted without the benefit of this historical appreciation and I believe to the detriment of the legislation and those seeking to appear under it. The process has provided me with a greater and more subtle understanding of the judicial intent found in those cases which directly examined the status of the Office. Each re-reading has provided new levels of comprehension which cannot be obtained from simply referring to the cases themselves or relying, in the case of Dupont v. Inglis, on the Supreme Court of Canada decision in isolation.
I am pleased with the end result, but not merely for its content and analysis. The short history is imbued with an enthusiasm and zest which, in my experience, I have come to count on from those dealing with this exciting and unique Office.
Linda M. Kamerman
Mining and Lands Commissioner
Toronto, Ontario
May 1, 2006
Preface
This short history came about as a way of celebrating the fact that the Office of the Mining and Lands Commissioner will have been in existence, as of May 2006, in one form or another, for one hundred years. The legislation that deals with the vast mineral resources in Ontario dates back to 1864.
It goes without saying that the opinions expressed in this paper are those of the writer only, and do not necessarily reflect the opinions of the Office of the Mining and Lands Commissioner.
The Mining Act is a formidable piece of legislation and it has formed the background to a myriad of mining recorders' decisions and stakers' tales that could fill volumes. In the same sense, treating the history of the Mining and Lands Commissioner in such a brief manner fails to do it justice. It’s fitting though that the Mining and Lands Commissioner, after having dealt with so many decisions and tales for one hundred years should be recognized in some way – if not for the staying power, at least for the importance of the work entrusted to this statutory officer. The Commissioners of the past were men and this history reflects that fact in the telling. Times change, and this history reflects that as well.
Marianne Orr
Deputy Mining and Lands Commissioner
Guelph, Ontario.
March 1, 2006
Executive summary – a short history of the Ontario Mining and Lands Commissioner
The Mining Convention of 1905 followed on the heels of an exciting silver discovery in Cobalt, Ontario in 1903. It was felt that mining activity needed to be more regulated and that a Mining Commissioner should be appointed to decide disputes between claimants. The result was the Mines Act of 1906. While there had been mining laws in Ontario dating back to 1864, the Mines Act of 1906 was a comprehensive revision and update to those laws.
Legislators looking for a suitable template for the Mining and Lands Commissioner turned to the legislation establishing the Drainage Referee (The Drainage Trials Act, 1891) for their inspiration. The major difference between the two was that mining dealt with the disposition of Crown property and associated unpatented rights which had not been dealt with by the ordinary courts while drainage dealt with ordinary property, claims and rights which would otherwise be heard in the ordinary Courts.
The word "commissioner" finds its origins in old English law. A commissioner was the representative of the king’s or queen’s authority in a particular district in the country. The appointment of a Mining Commissioner in Ontario was intended to bring law and order to the mining community. The Commissioner was ex officio a justice of the peace and could deal with a variety of matters ranging from ordinary mining issues to the issuance of writs and special orders for the arrest and detention of judgement debtors. The Commissioner also had the powers of and could act as an official referee under the Judicature Act and the Arbitrations Act. The Commissioner appointee had to be a barrister of at least ten years' standing and was deemed to be an officer of the High Court. This treatment of the Commissioner as a judge sitting in a court was further enhanced with the enactment of the Mining Court Act in 1924. In 1956, the title of Mining Commissioner was restored and, with the exception of changes under the Ministry of Natural Resources Act in 1973 (adding the word "Lands" to the title) the title has remained unchanged to this day. The Mining and Lands Commissioner no longer hears matters under only the Mining Act, but can expect to be called upon to deal with matters arising under the Aggregate Resources Act, the Conservation Authorities Act, the Oil, Gas and Salt Resources Act, and the Assessment Act and as the designated hearing officer under the Lakes and Rivers Improvement Act.
Over time, the jurisdiction of the Mining and Lands Commissioner has been the subject of careful analysis by all levels of court. Notable cases include McLean Gold Mines and Re Munro and Downey. The question asking whether the Commissioner was acting as a superior court contrary to the British North America Act, 1867 was dealt with in the case of Dupont v. Inglis which came before the Supreme Court of Canada in 1958. That Court equated the Mining Commissioner with an "inferior court of review or appeal". While the issues at every level focused primarily on the question of whether the Mining and Lands Commissioner was acting as a superior court, the courts hearing the appeals, in their approaches to the question, also posed another question as to whether the Mining Commissioner was a court or an administrative tribunal. In each instance, they found that the Commissioner was a court.
Dupont v. Inglis (1958) marked the end of a chapter in the history of the Mining Commissioner as it was followed by a series of legislative changes that found their origins in the government’s review of individual civil rights at the hands of regulatory bodies. Implementing the recommendations of the McRuer Report, (which came out in installments starting in 1968 and which directed its attention to the practices of courts, agencies, boards and commissions), resulted in various legislative changes as well as the creation of the Statutory Powers Procedure Act.
While the rules governing practice and procedure before the Mining and Lands Commissioner can be established by regulations made by the Lieutenant Governor in Council under the Ministry of Natural Resources Act, this has not been done. The Mining and Lands Commissioner has relied on those provisions set out in the Mining Act and the Statutory Powers Procedure Act dealing with procedure, although reference has been made to the Rules of Civil Procedure from time to time.
The original intention behind establishing a Mining and Lands Commissioner was to create a functionary who would deal with disputes under provincial mining legislation. The legislators recognizing that an independent judicial officer was needed (as opposed to ministers) to hear disputes. The presence of such an official would also free up ministers who were having to deal with increasingly time-consuming cases and would offer an accessible and affordable venue for members of the mining industry who obviously needed an adjudicator to quickly and effectively sort out their disputes. The Mining and Lands Commissioner is assisted by deputies and, in addition to being called upon to deal with matters arising under legislation other than the Mining Act, can also expect to hear what used to be called summary conviction cases (now provincial offences).
The evolution of the MLC's powers and responsibilities over the years has created a legislative ambiguity that affects parties' perceptions of whether the Commissioner is a court or an administrative tribunal. Perceiving the Commissioner’s original identity as an inferior court of review has been made difficult by the addition of administrative tribunal responsibilities and by the legislative requirement that procedural decisions be made in compliance with the Statutory Powers Procedure Act.
These are the words of an Ontario deputy minister of mines written in 1933. His name was Thomas Gibson and he was writing a small book on the mining laws of Ontario and the Department of Mines. The book was intended to be historical in nature; however, one senses that he was holding back on an urge to match his words to the excitement he obviously felt describing a growing mining industry in the province.
The discovery of a silver deposit at Cobalt, Ontario, in 1903, that was apparently on par with deposits in Mexico, South America and the United States, prompted a flurry of government policy and law-making to deal with the growing public demand to test and stake its riches. And the riches were great if Mr. Gibson’s words are to be believed. "…one after another, veins were opened up containing 8,000, 10,000, or even 12,000 ounces of silver to the ton, and … carloads of 30 or 35 tons of such material brought return to the owner of as much as $120,000 or $130,000 each." Mr. Gibson further observed, "[t]he mining laws were a fruitful topic for discussion and controversy." In 1905, a change in government brought demands for a change in the law.
Gibson gives special treatment to the Mining Convention of 1905 in his book, and for good reason. While other conventions had been held in the past in other locations, this convention lasted for four days and took place in Toronto, Ontario, in the Parliament Buildings themselves. Delegates from the northern cities met with their southern counterparts. While the opinions were said to be wide-ranging, the consensus was that a uniform method of acquiring mining lands from the Crown was needed. The delegates came up with some twenty-nine regulations ranging from the need for one uniform mining law for the whole province to settling on the size of claims and building a refinery for silver and cobalt ore. One regulation would stand out. A Mining Commissioner would be appointed to decide disputes, his decisions being subject to appeal to the Court of Appeal.
The Government of the day responded to the convention regulations with the creation of a new law – The Mines Act of 1906.
The appointment of a Mining Commissioner was an "important innovation" in Mr. Gibson’s words.
The importance of the Mining Commissioner to the industry is evident in the words of Samuel Price, the first Mining Commissioner, who in 1910 took great pains to catalogue the cases that were growing in number and complexity. In the Preface to his collection of mining cases for the years 1906-1910, he writes, "I am much indebted to the practitioners whose names most frequently appear in the reports of cases for assistance rendered in reaching decisions upon new and difficult points, in what was essentially a new field of law."
A history of the Mining and Lands Commissioner would be incomplete without a discussion of the history and meaning of the word "Commissioner" itself. While today the word is often lumped together with the phrase "agencies, boards and commissions", its derivation is actually found in the history of provincial courts.
A review of modern references to the word "commissioner" offers little help in the understanding of the origins of the word as it applies to the Mining and Lands Commissioner. For example, the McRuer Report described a "commissioner" as "one holding a commission from Her Majesty".
The Evidence Act treats the Mining and Lands Commissioner as a court for the purpose of the recognition of judgments across the country.
The association of the word "commissioner" with "judge, arbitrator, umpire, provincial judge, justice of the peace …" and so on is also in keeping with the treatment the word received in cases pre-dating confederation and in the early 1900's. The word "commissioner" itself pre-dates Confederation and refers to a judicial officer who seems to have been charged with ensuring the smooth administration of all matters relating to Crown resources and interests. The keeping of the peace, the collection of revenue, the overseeing of land grants and the control over timber are just some of the matters that commissioners would have been charged with such administration throughout the British Commonwealth. The Commissioner of Crown Lands is a good example from Ontario’s early history.
This link to the world of courts and judges pre-dates Confederation and the reason is obvious when reading the preamble to The Gold Mining Act of 1864; "Whereas gold has been discovered in this Province…." One can imagine the excitement. The competition to discover and then develop gold bearing properties must have been intense. The Gold Mining Act was intended to keep the prospectors and industry in line. Officers working under the direction of the Commissioner of Crown Lands acted as justices of the peace within their divisions and could appoint Constables to keep the peace. People found removing stakes could be imprisoned. Liquor and beer sales were licensed depending on their proximity to the mining of gold. Any Gold Mining Officer could convict and punish (incarceration being one method of punishment) in accordance with the Act and Regulations. The Act was indeed a reflection of its times.
Time passed, issues became more complicated, and The General Mining Act of 1869 eventually replaced The Gold Mining Act. With Confederation the political landscape had changed as well. However, the need for a self-contained administrative system that could deal with everything that went with the discovery of valuable minerals never diminished. It would continue to become more important over time until The Mines Act emerged in 1906. Thomas Gibson’s "important innovation" in the form of a Mining Commissioner was the culmination of over thirty years of legislative thought and tinkering. The court-like characteristics first seen in earlier legislation were retained and further enhanced in this specialized court.
In the 1906 statute, the Mining Commissioner was deemed to be an officer of the High Court and was required to be a barrister of at least ten years' standing. "He" (reflecting the grammar of the day), was to have the powers of a Judge of the High Court of Justice and his jurisdiction extended to such things as actions of trespass, ejectment, suits of specific performance, suits of winding up or dissolution of mining partnerships, and for orders dealing with injunctions or mandamus. The Mining Commissioner could issue writs for the arrest of judgement debtors and had all the powers of an "official referee" under The Judicature Act and The Arbitrations Act. The Mining Commissioner was still ex officio a justice of the peace. As in previous legislation, the prosecution for the punishment of any offence under the Act could take place before the Mining Commissioner.
In keeping with the treatment of the Mining Commissioner as a judge, the legislation set out a procedural system for the administration of trials. County Courts provided the place for sittings and the local clerk acted as the keeper of the exhibits and records. Fees were paid in stamps as in the courts. The Mining Commissioner, like the courts, could frame his own rules of proceedings and have them published in the Ontario Gazette. In fact, the procedures for matters heard by the Mining Commissioner were seamlessly interwoven into the County Court procedural setup so that the clerk of a county court could issue a subpoena for the attendance of a witness before the Mining Commissioner.
The integration of County Court and Mining Commissioner (at least as far as office administration was concerned) continued with the amendments made to the Act in 1907.
In 1908, The Mines Act was consolidated and amended. In repealing it, the government of the day brought in The Mining Act of Ontario.
In 1908 the wording that resembles section 105 of the present Act made its debut.
In deciding that the Commissioner did not have the authority to deal with something that belonged in a superior court, Justice Ferguson in the Appellate Division of the Supreme Court of Ontario said:
The decision also provides an historical nugget in the form of reasons provided by Chief Justice Meredith who came to a different conclusion on the point of jurisdiction. He died after hearing the case but prepared his judgement before passing. After reviewing the main issue of forfeiture for the non-payment of mining taxes he said, in part:
In 1924, the then Mining Commissioner, Thomas Ernest Godson, K.C., was appointed a judge through legislation entitled The Mining Court Act, 1924. Not surprisingly, section 123 of The Mining Act of Ontario was repealed.
One would expect that a constitutional issue might arise out of having the judge of the Mining Court appointed "as provided by The British North America Act, 1867" and having "the same powers as a Judge of a Superior Court sitting in a civil case".
In 1927, The Mining Act was revised and consolidated and references to the Judge of the Mining Court replaced any previous references to the Commissioner. The whole of The Mining Court Act, 1924 was repealed except for subsections 5 (3), (4), and (5) which continued the role of the Mining Commissioner as Judge of the Mining Court.
While the McLean case seems to have had no immediate effect on the jurisdiction of the Commissioner, there had in fact been some judicial rumblings expressed in 1909 in the case of Re Munro and Downey.
It was not until 1955 when a Mining Recorder in Sault Ste. Marie received and placed "on file only" four applications of Alfred E. Dupont to record a restaking he had made of four previously staked and recorded claims that the issue ran the full gamut of judicial scrutiny and discussion, ending up before the Supreme Court of Canada in 1958 with the case of Dupont v. Inglis.
The case started out before the Mining Recorder in 1955 and the Act of the time (The Mining Act, R.S.O. 1950, c. 236) still called for the appeals from the Recorder to be heard by the Mining Judge. The appeal from the decision of the Mining Recorder opened before the Judge on May 29th, 1956 and was adjourned on the 30th. On June 1, 1956 The Mining Amendment Act came into force bringing with it new wording and a new judicial officer - the Mining Commissioner.
When the respondents in Dupont v. Inglis busied themselves with trying to get an appointment with the new Mining Commissioner to fix a date to receive directions on how to continue their appeal, the appellants opposed their action for three reasons. First of all, the Mining Court had ceased to exist as a result of statute law; purely judicial functions would be merged in or automatically transferred to the Supreme Court of Ontario. Secondly, despite the exclusive jurisdiction over mining disputes given to the Commissioner through Section 115 of the amending Act, as far as the appellants were concerned, the only jurisdiction the Commissioner had was to correct procedural mistakes made by a Mining Recorder. This was an administrative function that might be partly judicial. The third reason was that the parties themselves could not increase the Commissioner’s jurisdiction through consent.
By this time the parties to the case included the provincial and federal Attorneys General. After taking the parties through a fairly thorough history of the mining legislation as well as the history of inferior courts in Ontario, Mr. Justice Ferguson dismissed the motion for prohibition saying that the jurisdiction exercised by the Commissioner was "akin to the jurisdiction of a Justice of the Peace and analogous to those Courts which Chief Justice Duff was dealing with in the Adoption case."
After considering the changes in the amending legislation (such as the deletion of any reference to the Judge having the same powers as a Judge of a Superior Court sitting in a civil case or the need for the Judge’s appointment to be also be in accordance with the British North America Act, 1867), Mr. Justice Ferguson concluded "[a]ll of these changes indicate to me that the Legislature by the Act of 1956 has not intended to create a Court analogous to a Superior, County or District Court, but more in the nature of a Court presided over by a Justice of the Peace."
The Court of Appeal disagreed with Mr. Justice Ferguson’s conclusion and ruled that the Commissioner would be exercising the powers and jurisdiction that conformed broadly to the type of jurisdiction possessed only by a Superior Court at the time of Confederation in the Commissioner. We can only regret the fact that court decisions offer but tiny glimpses into the mammoth task that parties undertake to try to persuade a judge to agree with their propositions and arguments. However, Mr. Justice Schroeder of the Court of Appeal was as careful as Mr. Justice Ferguson to take his readers through the history of provincial mining legislation – the difference being that he ended up placing the Commissioner on par with a court of appeal and therefore meeting the definition of a superior court.
In contrast to the lower appeal courts' detailed review of Canadian and Ontario judicial history, Chief Justice Rand cut to the quick. He honed in on the fact that the Province had established a neat system of disposing of Crown lands on certain terms and conditions and in the absolute judgement or discretion of an inferior court of review. Mr. Justice Rand looked back to the Gold Mining Act as well, but with the same practical view as Mr. Justice Ferguson had at the first level. Justices of the peace under that Act had meted out the necessary law and order so keenly needed by an opening frontier. If the decisions of these functionaries could be appealed to Division Court (quarterly sessions) prior to Confederation in Ontario, the appeals from decisions of mining recorders to the Commissioner were no different. The Commissioner was an inferior court of review and not an appeal court in the sense of the Superior Courts.
Dupont v. Inglis in some respects marks the end of a chapter in the history the Mining Commissioner. The first fifty years had been a simpler time for this judicial tribunal; "tribunal" having the same meaning it did in England, namely a court. The 1960's loomed on the horizon and the judicial world would soon turn its attention to the issue of civil rights and the role of government in the affairs of its citizens.
The Royal Commission Inquiry into Civil Rights (called in 1964) signaled the start of a new era in a world where legislative, judicial and executive powers (statutory powers) would be scrutinized for any encroachments on the rights of individuals. The Inquiry into Civil Rights had been called "to examine, study and inquire into the laws of Ontario … affecting the personal freedoms, rights and liberties of Canadian citizens and others resident in Ontario for the purpose of determining how far there may be unjustified encroachment on those freedoms, rights and liberties by the Legislature, the Government, its officers and servants, divisions of Provincial Public Service, boards, commissions, committees, other emanations of government orbodies exercising authority under or administering the laws of Ontario."
The McRuer Report and its recommendations began to take effect in the early 1970's.
The legislative drafting process does not take place in a vacuum though. The reference to select sections of The Statutory Powers Procedure Act, coupled with the delegation of additional hearing responsibilities dealing with "appeals" by applicants whose initial regulatory applications had been refused, was signaling the start of a new role for the Commissioner in addition to the role of inferior court. Now, besides being a specialized court, the Commissioner would become something of a tribunal of last resort set up to hear from a wide assortment of applicants facing potential ministerial rejection of their regulatory applications of one sort or another. For example, The Civil Rights Amendment Act made it possible for quarry permit applicants under The Aggregate Resources Act to apply to the Commissioner for a hearing if the Minister refused their initial application. The Commissioner did not make a "decision" in the matter, but was required to "report" to the Minister and make recommendations. The applicants in effect received the independent hearing the McRuer Report said was so important to citizens in their dealings with government.
In 1973 the Mining Commissioner became known as the Mining and Lands Commissioner reflecting changes to The Ministry of Natural Resources Act, 1973.
The Mining Commissioner’s evolution would continue over the next two decades with additional amendments to the Mining Act.
On the other hand, the courts themselves never appear to have any difficulty in characterizing the Commissioner as a court. One of the more interesting cases illustrating this point (both in terms of subject matter and words from the bench) is the 1998 case of Minescape Exploration v. Bolen, where a dispute arose between the parties as to where the matter should be heard – the then Ontario Court (General Division) or the Mining Court. The General Division Court decided that the "unpatented mining claims are a backdrop to specialized legal and equitable principles that fall within the jurisdiction and expertise of the General Division."
The facts of the case are simple enough; an agreement is made between various parties dealing with the staking of claims, the transfer of the claims, and the eventual development of a mine, and all that goes with such happenings. When the parties found themselves arguing about the status of the agreement they also found that they disagreed on where the case should be heard. An application was made to have the matter transferred to the Ontario Court (General Division) pursuant to section 107 of the Mining Act. Judge Kurisko’s analysis of the issues brings to mind the words of Justice Ferguson and Chief Justice Rand in Dupont v. Inglis. In dealing with the applicants' argument that "modern" case law "mandate the transfer … of contract, equitable relief and damages …" [to the Ontario Court (General Division)], he said: "[t]he statements quoted from the two Supreme Court cases set out principles that are favourable to the position of the applicants. However, many unanswered questions remain concerning the meaning of ss. 105 and 107: How do these sections relate to each other? What approach should be adopted in applying the provisions to specific facts? Does the Mining Court have exclusive jurisdiction in matters related to mining? Does the Mining Act displace the inherent jurisdiction of the General Division? Is there concurrent jurisdiction over certain matters? If so, how should the jurisdiction be exercised? What rules apply on an application to transfer a proceeding from the Mining Court?"
In applying what he described as a "principled approach" to the interpretation of the Mining Act, Judge Kurisko harkened back to Dupont v. Inglis and observed with as clear an eye as that of Rand J. that "the Supreme Court of Canada held the Mining Act is primarily legislation providing for the administration of mining resources owned by the province under the general direction of appointees for the Ontario government. The Supreme Court held that the provisions are not an attempt to exercise the jurisdiction of a court within the meaning of s. 96 of the British North America Act, 1867." As for the power to transfer a proceeding as set out in section 107 he described it as a "safety valve that protects encroachment by the Mining Court on private civil and property rights."
Carrying on with his analysis, Judge Kurisko said, "[i]f a party fails to apply under s. 107 to transfer a proceeding, Rand J. indicates it can be inferred such party (or parties) accepts the jurisdiction of decisions of the Mining Court. Does such failure to object or apply for a transfer of proceedings constitute an estoppel against later asserting the Mining Court decision is a nullity by reason of lack of jurisdiction? The question has not been decided but an answer in the affirmative has been indicated."
Where does this leave the Mining and Lands Commissioner? To say that today the position presents interesting paradoxes would be putting things mildly.
Today’s Commissioner is the first female appointee.
Changes to jurisdiction aside, the Mining and Lands Commissioner carries on maintaining a rich decision-making tradition that reaches back one hundred years. Perhaps, quoting the 1988 government Green Paper that explained the 1989 changes to the Mining Act can serve to sum things up quite nicely. The resulting legislation closely resembles today’s version.
Footnotes
- footnote[1] Back to paragraph Thomas W. Gibson, "The Mining Laws of Ontario and The Department of Mines", Herbert H. Ball, King’s Printer, Toronto, 1933, page 24
- footnote[2] Back to paragraph The Liberals gave way to the Conservatives under Whitney.
- footnote[3] Back to paragraph The Mines Act, 6 Edw. VII, Chapter 11
- footnote[4] Back to paragraph Supra note 1 at page 27.
- footnote[5] Back to paragraph Supra note 1 at page 28.
- footnote[6] Back to paragraph The Gold Mining Act, 1864, Cap. 9, 27-28 Vict.
- footnote[7] Back to paragraph The decisions coming out of Dupont v. Inglis, infra at notes 39, 45, and 46, take the reader through a history of the Commissioner’s office and are a worthwhile read for anyone wanting to put some meat on the legislative bones.
- footnote[8] Back to paragraph Samuel Price, "Mining Commissioner’s Cases Ontario 1906-1910", Toronto, The Carswell Company, Limited, 1910, page v.
- footnote[9] Back to paragraph While administrative law concerns itself with the social programmes and regulatory schemes set up by government and the potential for government to wield its powers unfairly against its citizens, the magistrates, justices of the peace, commissioners and other inferior courts, were charged with the administration of a virtually self-contained legal system designed at least in the case of mining legislation to control the discovery and exploitation of newly realized provincial resources. Magistrates or justices of the peace under the old mining acts were not only expected to make sure that claim boundaries were accurate; they might also be called on to keep the peace between drunken miners. The Mining and Lands Commissioner to this day can be called on to hear a case dealing with the prosecution of an offence under the current Mining Act.
- footnote[10] Back to paragraph S.A. de Smith, "Judicial Review of Administrative Action", Stevens, 3rd Edition, page 13
- footnote[11] Back to paragraph Bonde v. Bonde [1983] O.J. No. 586. It’s not unusual for the courts to call up old English authorities when they are discussing the origins of the Canadian legal system. The Bonde case, and Re Kleinsteuber and Kleinsteuber (1980), 29 O.R. (2d) 360 (mentioned in obiter in Bonde), are but two of a myriad of cases which draw on these old laws to illustrate a point (or in the case of Re Kleinstreuber to try to make a novel argument). It’s not unusual to therefore to find a case quoting a statute (as in Re Kleinstreuber) dating back to 1340 (34 Edw. III, c. 1), in order to provide an historical connection for present day justices and magistrates.
- footnote[12] Back to paragraph Another example of courts calling up history is the case of Small Debts Act (B.C.) (Re) 5 B.C.R. 246 where McCreight, J., in dealing with a conferring of limited civil jurisdiction on "Stipendiary Magistrates and Police Magistrates" by the Province of British Columbia, described the establishment of "Commissioners' Courts" in New Brunswick. These courts were apparently established to hold trials of civil causes where the action in debt was limited to $40.00 and the action in tort to $16.00. His reference was to the case of Ganong v. Bayley, 17 N.B. 324. Justice McCreight was describing the various lower courts that were in existence prior to Confederation, from Commissioners' Courts in what is now the Province of Quebec, to "Division Courts" in Ontario. "The several Acts establishing theses small Courts in the several Provinces, prior to Confederation, also provided for the appointment of officers thereof by the several Local Executives…." There are numerous factual references made to these "inferior courts" in case law dealing with the tug of constitutional "war" between federal and provincial authorities. In the Small Debts case, it was noted for example, that "[a]t the time of Confederation, the only Courts existing in this Province [British Columbia] were the Supreme, County and Gold Commissioners' Courts." "The Dictionary of Canadian Law", 1991, Carswell, relying on Hogg’s "Constitutional Law of Canada" (2d ed., Toronto: Carswell, 1985) defines a "District Court" as an inferior court limited in territorial jurisdiction and limited to certain subject matter.
- footnote[13] Back to paragraph One simply has to peruse old mining-related legislation pre-dating the 1906 Act to see the many references to justices of the peace and the roles they played in keeping the peace in the various mining districts. They meted out justice under legislation entitled "An Act Respecting Summary Proceedings before a Justice of the Peace". The McRuer Report, infra note 14 at page 515, makes reference to two cases which give some background to the office. They are The Queen v. Malloy (1900), 4. C.C.C. 116 and Re R. v. Isbell (1928) 50 C.C.C. 81. Of the two, the Isbell case is the better for its careful review of the law dealing with the origins of the word and the jurisdiction of a "Justice". McRuer identifies a key passage in the case as being on page 94 where the Court says "The important thing is that the legislation in Canada, or what is now Canada, did not create Justices of the Peace but only regulated and controlled the appointment of persons to an office already in legal existence [by the laws of England]...." Under the 1906 Act the Mining Commissioner could hear prosecutions for the punishment of any offence under The Mines Act under the provisions of The Ontario Summary Convictions Act. The current Act (sec.170) still requires that offences be prosecuted before either the Ontario Court of Justice or before the Commissioner and the Provincial Offences Act applies to every prosecution.
- footnote[14] Back to paragraph "McRuer Report" Volume 1 No. 2, page 721
- footnote[15] Back to paragraph Dukelow, "The Dictionary of Canadian Law", Carswell, 1991, page 228.
- footnote[16] Back to paragraph Evidence Act, R.S.O. 1990, Chapter E.23, subsection 36(2)
- footnote[17] Back to paragraph Supra note 8 at page ix Introduction; Drainage Act R.S.O. 1990, Chapter D. 17; R.R.O. 1990, Regulation 275. All proceedings before the Drainage Referee must bear the title "In the Court of the Drainage Referee" and proceedings are instituted in the office of the local registrar of the Superior Court of Justice.
- footnote[18] Back to paragraph The Mining Act, R.S.O. 1950, c. 236, as amended by 1956, c. 47, s. 7.
- footnote[19] Back to paragraph The Reference re The Adoption Act [1938] S.C.R. 398, the Reference re Family Law Relations Act [1982] 1 S.C.R. 62 and the case of Dupont v. Inglis [1958] S.C.R. 535 all provide informative background material on the point of provinces creating inferior courts. Estey, J. sums up the whole matter quite succinctly in the Reference re Family Law Relations Act case when he says "[t]he history of constitutional development in our courts has been a gradually increasing recognition of the constitutional capacity of the provinces to institute programs within their constitutional spheres which entail the establishment of administrative tribunals or which utilize the facilities of the provincially organized and appointed courts. This development should not be considered surprising bearing in mind the vast transformation of the Canadian community in every respect since 1867….. To meet the growing responsibilities of the federal and provincial governments the flexibility of the Constitution has been manifest in many areas. Section 96 is perhaps one of the most important illustrations. Its purpose and role in the Constitution is in no way jeopardized by the increasing recognition of the implementation of valid provincial programs through provincial administrative and judicial agencies."
- footnote[20] Back to paragraph Supra note 19 at page 415.
- footnote[21] Back to paragraph An Act to amend The Mines Act, 1906, 7 Edw. VII, c. 13
- footnote[22] Back to paragraph The Mining Act of Ontario, 6 Edw. VII, c. 11
- footnote[23] Back to paragraph Supra note 17 at page xxx.
- footnote[24] Back to paragraph (1908) The Mining Act of Ontario, 6 Edw. VII, c. 11, ss. 123(1)
- footnote[25] Back to paragraph McLean Gold Mines Ltd. and The Attorney General for Ontario et al., 54 O.L.R. 573
- footnote[26] Back to paragraph Subsection 123(1) had been amended in 1921 to add wording that allowed the Commissioner to deal with matters or things before or after the issue of patents. See 11 Geo. V. ch. 16, sec. 17. While the legal wrangling that persisted through 1958 and the case of Dupont v. Inglis is interesting for what it tells us about the difference between superior and inferior courts, it has too often been used to categorize the Commissioner’s office as an administrative tribunal much like any other agency. There has never been a case where the sole issue has been whether the Commissioner is a court or administrative tribunal. However, the issue has been discussed in Dupont v. Inglis as part of the reasoning supporting the conclusion that the Commissioner was not exercising jurisdiction that did not belong to him. Mr. Justice Ferguson, deciding the appeal in Dupont v. Inglis at the Supreme Court of Ontario level referred to the case of Toronto Corporation v. York Corporation and noted that the case could stand for the proposition that the Province could not give any decision-maker the powers of a Court if it did not meet the requirements of ss. 96, 99 and 100 of the British North America Act. He discounts this approach saying that the cases that followed, especially the Adoption Act case, support the view that the Privy Council did not intend to say that all Provincial Courts came within the scope of those sections. Mr. Justice Ferguson then made the point that "the Commissioner is not sitting as an administrative tribunal" and found support for his statement in the old case of Re Ashby. "The recorder and the commissioners are bound to apply the Mining Act, they have not an unfettered discretion, their discretion must be a judicial discretion, it is controlled by the rules laid down by the Mining Act and the Regulations passed thereunder, as well as the law of the land." Once he had decided that the Commissioner was acting as a judge, he then went on to ask what kind of a judge. See Inglis et al. v. Dupont et al. [1957] O.R. 193 at pp. 200, 201 and 202. Mr. Justice Schroeder agreed with Mr. Justice Ferguson on this point. See Inglis et al. v. Dupont et al., O.L.R. (1957) 377 at 394, 395.
- footnote[27] Back to paragraph McLean Gold Mines Limited v. The Attorney General for Ontario et al., "Mining Court and Mining Commissioners' Cases", vol 3, p. 31
- footnote[28] Back to paragraph Supra note 27 at pages 32, 33. Section 21 here is a reference to Section 21 of The Mining Tax Act, R.S.O. (1914), Cap. 26. As testament to the fact that judges are more than what they seem, Sir William Ralph Meredith, a Conservative, is frequently referred to as the father of the Ontario Workers’ Compensation system, having headed up an inquiry (Meredith Report 1913) into the issue of compensation for workers.
- footnote[29] Back to paragraph The Mining Court Act, 1924, sec. 10
- footnote[30] Back to paragraph Supra note 29, sec. 3, subsec. 5(2)
- footnote[31] Back to paragraph See Dupont v. Inglis, below. The Court of Appeal in Dupont v. Inglis did have access to an historical tidbit though in the form of a Minute of the Committee of the Privy Council meeting dealing with the Order in Council (P.C. 1569) whereby Mr. Godson, having been appointed to the office of judge of the Mining Court, would have his appointment confirmed and appointed by the Governor General in Council as well. Some doubts must have arisen as to the validity of the provincial appointment and the federal appointment was seen as a means to an end - "…such appointment is made only for the avoidance of doubt…." See Inglis et al. v. Dupont et al., O.L.R. (1957) pages 387, 388
- footnote[32] Back to paragraph The Mining Act, 1927, 17 Geo. V. c. 15, sec. 5
- footnote[33] Back to paragraph Supra note 1 at page 4. Thomas Gibson’s description in his 1933 book is interesting for its historical qualities. "A mining court for the settlement of controversies arising under the Mining Act respecting mining lands, whether patented or not, is a distinguishing feature of the Ontario law. Disputants plead their cases before the Mining Judge either in person or by their legal advisors, and the Judge is left entirely free to decide upon the evidence, according to the law and the requirements of justice. His decisions have the same force and effect as those of ordinary courts of the land and are enforceable in the same way. This history repeats itself. In King John’s time the "tinners" of Cornwall and Devon and the lead-miners of Derbyshire were freed from the jurisdiction of the ordinary law courts and from subservience to their feudal superiors, and were made amenable only to the local warden appointed by the King, who promulgated regulations for the protection of miners and settlement of their disputes."
- footnote[34] Back to paragraph Supra note 32, secs. 140, 145
- footnote[35] Back to paragraph Supra note 32, sec. 120
- footnote[36] Back to paragraph (1909), 19 O.L.R. 249.
- footnote[37] Back to paragraph History sleuths will be interested to know that B.M. Britton, Q.C. was the Drainage Referee in 1892 and that at least one drainage case from that era has him saying that the case he was to hear had come to him "by the order of the Honourable Mr. Justice Falconbridge, at the assizes at Stratford." The case at hand contained an action for damages from the construction or operation of a drain and under section 11 of The Drainage Trials Act the issue of the writ could be referred to the Referee by the High Court. In this instance the Referee was also a High Court Justice, and this apparently was not uncommon. Perhaps the Munro case twigged this Justice’s legal curiosity. We can only guess.
- footnote[38] Back to paragraph Re Munro and Downey M.C.C. 1906-1910, 205, 206. Samuel Price, the Commissioner at the time, appears to have taken it upon himself to compile the mining cases he had heard into a comprehensive set of volumes entitled "Mining Commissioner’s Cases" ("M.C.C."). The historian can only benefit from efforts like these. Mr. Price took things one step further though for this case and added his own commentary. His reference to the Drainage Trials Act of 1891 historically links the Mining Commissioner to the Drainage Referee. (The Drainage Trials Act marked the Drainage Referee’s legislative "debut".) Price’s words are indeed prescient. "Upon the question of the constitutionality of the powers conferred upon the Commissioner see "Clement’s Canadian Constitution" (2nd Ed.) 296. The jurisdiction and powers of the Commissioner provided for in the Mines Act, 1906-7, were modeled after those of the Drainage Referee established by The Drainage Trials Act in 1891, [54 Vic. Ch. 51] and carried with amendments into R.S.O. (1897) c. 226, s. 88 et seq. Cf. with the latter s. 8 et seq. of The Mines Act, 1906 and 1907. The most important difference between The Drainage Trials Act and The Mines Act provisions is that the latter had to do with the disposition of Crown property, unpatented rights, etc., matters which were not heretofore dealt with by the ordinary Courts, while the former had to do with ordinary property and rights and claims affecting it, which would in the usual course be cognizable in the ordinary Courts." Price goes on to make a case supporting the Commissioner’s jurisdiction. "The provisions of The Mines Act were almost entirely recast in 1908; see present ss. 123 et seq., being now, it would seem, less open than formerly to suspicion of trespassing upon the prerogative of the Superior Courts or of the Dominion authorities. There is in regard to the question the consideration that the disposal of Provincial Crown lands is a matter the Province has a right to control, and when its Legislature says as in effect it does in the present Act (ss. 68 and 123(1)0 that it will only dispose of them to persons complying with the provisions of the Act, any attempt to obtain a grant by any other course could not be successful. Though the Act aims at speedy determination of litigation it gives a very full right of appeal to the ordinary Courts, in all important cases, which prior to 1906, did not exist; See ss. 151, 152."
- footnote[39] Back to paragraph Dupont v. Inglis [1958] S.C.R. 535
- footnote[40] Back to paragraph The use of Dupont in the context of administrative law is an unfortunate one since it has fostered the view that the Mining and Lands Commissioner is but another administrative tribunal. At the time of Confederation administrative tribunals were so rare if they existed at all and the government’s way of administering the law for various resources such as mining, was to set up a system of inferior courts (magistrates, justices of the peace, commissioners and the like.) This confusion between an inferior court and an administrative tribunal has led to various amendments to the Mining Act which on the one hand make no sense if one accepts the Commissioner as an inferior court and on the other hand only lead to confusion for the claimant if one considers the Commissioner to be an administrative tribunal. (One only has to try to make sense of the inclusion of references to the Statutory Powers Procedure Act to the Mining Act or the fact that the Commissioner still acts as a summary conviction court for offences against the Act.)
- footnote[41] Back to paragraph Supra note 39 at page 543
- footnote[42] Back to paragraph Toronto Corporation v. York Corporation [1938] A.C. 415. Mr. Justice Ferguson was keen to put to rest the potential argument for concluding that the Province could not confer the functions of a court on a body not meeting the requirements of ss. 96, 99 and 100 of the British North America Act. See Inglis et al. v. Dupont et al. [1957] O.R. 193 at p. 291
- footnote[43] Back to paragraph The Mining Amendment Act actually received the Lieutenant-Governor’s assent on March 28, 1956. It would be reasonable to think that the mining industry or the legal community were aware of the changes due to affect their lives in June of that year.
- footnote[44] Back to paragraph "The Northern Miner", March 2, 1987, page 5. Commissioner McFarland was on hand to provide answers to the questions asked by the Royal Commission dealing with the Inquiry into Civil Rights launched in 1964 (the McRuer Report).
- footnote[45] Back to paragraph Inglis et al. v. Dupont et al., "Mining Court and Mining Commissioner’s Cases", Vol 3, 1918-1960, page 194.
- footnote[46] Back to paragraph Inglis et al. v. Dupont et al., [1957] O.R. 193 at page 210. This reference to the Adoption case (one of many made by Mr. Justice Ferguson), is like a key opening a door to a time when the laws regarding the power of the provinces under the new legal landscape established by the British North America Act was in many respects, uncharted territory. Reference re: Adoption Act (Ontario) [1938] S.C.R. 398 is a well-referenced case chock full of historical background. It is especially useful for its review of cases dealing with the appointing of judicial officers (including commissioners) to mete out summary justice in a variety of matters ranging from small debts, mining, torts, to the investigation of fires. Equally important is the careful attention paid by Chief Justice Duff to the legal environment of the reviewed cases even to the point of qualifying past decisions because of what the judge did not hear or was not privy to. Chief Justice Duff left no point unanswered, even commenting on the names given to judicial officers. "If you have a jurisdiction which can be exercised by a tribunal not within section 96, that is to say, by a tribunal presided over by a judge or officer appointed by the province, it is entirely for the province to say how the tribunal shall be constituted and by what name judicial officers presiding over it shall be called."
- footnote[47] Back to paragraph [1957] O.R. 377
- footnote[48] Back to paragraph Supra note 39, pages 540-543. Chief Justice Rand’s words are worth noting here if only for the fact that they seem at first blush to bestow low esteem on the work once carried out by the early justices of the peace. As he puts it, "[t]he determination of fact, so far as they might be taken as possessing a judicial quality, were made by justices of the peace, inferior tribunals. The practical competence called for and, by experience, acquired is of the character implied by Lord Simonds in Labour Relations Board of Saskatchewan v. John East Iron Works, Limited et al., where he says: "It is a good test as another of "analogy" to ask whether the subject matter of the assumed justiciable issue makes it desirable that the judges should have the same qualifications as those which distinguish the judges of superior or other courts." One wonders what the Commissioner of the day and those that came later might have made of these words. There is no doubt that the cases coming before the Commissioner today are comparatively more difficult and complex than those faced by the early justices of the peace.
- footnote[49] Back to paragraph Order in Council dated May 21, 1964
- footnote[50] Back to paragraph Report Number 1, Volume 1, page 11
- footnote[51] Back to paragraph Report No. 3, Volume 5, page 1898
- footnote[52] Back to paragraph The first Report was submitted by McRuer on February 7, 1968; the second Report on September 15, 1969 and the third Report on February 22, 1971. The references to the Mining Commissioner are found in the third Report at pages 1898 to 1912 inclusive.
- footnote[53] Back to paragraph The Civil Rights Statute Law Amendment Act, 1971, s. 58
- footnote[54] Back to paragraph We can only guess why that was the case. In 1906, the Commissioner followed the rules of the High Court of Justice (The Mines Act, 1906, R.S.O. 1897, c. 36, s. 35). When questioned by the Inquiry Mr. McFarland is quoted as saying "actually as far as the practices and procedures are concerned we follow pretty well the practices and procedures as laid down by the Supreme Court except that perhaps we are a little more lenient as far as the evidence is concerned." (Report No. 3, Volume 5, page 1900). The Report notes on page 1890 (Report No. 3, Volume 5) that "[u]nlike the legislation governing many of the tribunals we have dealt with in this Report, the Act contains many provisions setting out in some detail the procedure to be followed relative to the exercise of the jurisdiction conferred on the Commissioner."
- footnote[55] Back to paragraph Report No. 3, Volume 5, page 1910
- footnote[56] Back to paragraph The Civil Rights Statute Law Amendment Act, 1971, s. 58. The Mining Commissioner became the elephant described by the five blind men in the American poet John Godfrey Saxe’s poem "The Blind Men and the Elephant" (based on an Indian fable). Depending on where one looked in The Mining Act, one came up with a different picture of the Mining Commissioner. Unfortunately, this is still the case today. The Commissioner was made selectively subject to The Statutory Powers Procedure Act; procedural rules (harking back to the time when the Mining Court was in existence) could be (and can) still made in the form of regulations by the Lieutenant Governor in Council; by virtue of section 13 of The Mining Act (repealed in 1989), the Commissioner was still ex officio a Justice of the Peace (a position to which the new Statutory Powers Procedure Act did not apply; the Commissioner was (and still is) called upon to give leave to institute prosecutions for certain offences under the Act; and indeed, the Commissioner (along with a provincial judge) was still the person before whom a prosecution for an offence for the recovery of a penalty imposed by or under the authority of the Act was to take place – and The Summary Convictions Act was to apply to every such prosecution. (The Mining Act R.S.O. 1970, c. 274, sections 628-634)
- footnote[57] Back to paragraph The Ministry of Natural Resources Act, 1973, c. 105, ss. 3,4
- footnote[58] Back to paragraph 1989 saw the last major amendments to the Mining Act dealing with the Commissioner’s role (see S.O. 1989, chapter 62).
- footnote[59] Back to paragraph Minescape Exploration Inc. v. Bolen, 39 O.R. (3d) 205
- footnote[60] Back to paragraph Supra note 59 at page 212
- footnote[61] Back to paragraph Supra note 59 at page 213
- footnote[62] Back to paragraph Supra note 59 at page 213
- footnote[63] Back to paragraph Linda Kamerman’s appointment made in July, 1992, was effective in August of that year.
- footnote[64] Back to paragraph Supra note 1 at page 121
- footnote[65] Back to paragraph Commissioner Kamerman, on being asked to describe the nature of her role in the current legislative environment, gave this reply: "With the present-day constellation of legislation which governs the jurisdiction of the Commissioner, adjudicative challenges occur on an ongoing basis. The procedural and jurisdictional issues which are faced are governed by what has becomes an ad hoc group of rules which no longer work in concert in a cohesive whole. Such issues must be examined through provisions of Part VI of the Mining Act, the Statutory Powers and Procedure Act and once those are found inadequate or unsatisfactory to the particulars of the often complicated scenarios which arise, through application of the Rules of Civil Procedure by analogy. The significance of the historic provisions of Part VI [of the Mining Act] cannot easily be discounted, nor can the imperfect marriage with the Statutory Powers and Procedure Act be underestimated. One telling example is the reference provision found in section 108, whereby the Superior Court of Justice may refer a matter or question to the Commissioner. The corresponding powers for this provision, once found in the former Judicature Act now appear in Rules 54 and 55 of the Rules of Civil Procedure; it is the Rules which govern any such procedures."
- footnote[66] Back to paragraph "Ontario’s Mines and Minerals Policy and Legislation: A Green Paper" December 12, 1988