Gerle Gold Ltd. v. Golden Rule Resources Ltd., docket A-178-99

Date: 20000925

Docket: A-178-99

CORAM:      DÉCARY J.A.

         McDONALD J.A.

         MALONE J.A.

BETWEEN:

     GOLDEN RULE RESOURCES LTD. and

     INUKSHUK CAPITAL LTD.

     Appellants

     - and -

     GERLE GOLD LTD. and

     SOUTHERNERA RESOURCES LIMITED

     Respondents

Heard at Vancouver, British Columbia, on Tuesday, September 12, 2000

Judgment delivered at Ottawa, Ontario, on Monday, September 25, 2000

REASONS FOR JUDGMENT BY:      MALONE J.A.

CONCURRED IN BY:      DÉCARY J.A.

     McDONALD J.A.

    

Date: 20000925

Docket: A-178-99

CORAM:      DÉCARY J.A.

         McDONALD J.A.

         MALONE J.A.

BETWEEN:

     GOLDEN RULE RESOURCES LTD. and

     INUKSHUK CAPITAL LTD.

     Appellants

     - and -

     GERLE GOLD LTD. and

     SOUTHERNERA RESOURCES LIMITED

     Respondents

     REASONS FOR JUDGMENT

MALONE, J.A.

I INTRODUCTION

This is an appeal from an order of a Justice of the Trial Division sitting in Chambers issued on February 24, 1999. That order allowed the respondents' application for judicial review of a decision made by an Assistant Deputy Minister ("the ADM"), Department of Indian Affairs and Northern Development ("DIAND"). The ADM's decision allowed the application of the appellants for ministerial review pursuant to section 84 of the Canada Mining Regulations (the "Regulations")¹ and overturned a decision dated May 10, 1996 by the Supervising Mining Recorder ("SMR"). The SMR decision had cancelled the recording of the MK1-15 and R1M 1-24 mineral claims in the name of Boyd Warner.²

According to the appellants, the decision of the learned Chambers Judge is said to contain four errors, namely:

a)      failing to apply the correct standard of review of the ADM's decision;

b)      deciding that the ADM erred at law in interpreting the words "any interest" in s. 49 of the Regulations to mean a "legal or equitable right to the mineral claims enforceable in a court of law";

c)      deciding that the ADM breached the duty of fairness in refusing to exercise his discretion to permit counsel for the respondents to cross-examine Boyd Warner on his statutory declaration; and

d)      deciding that the reasons for the ADM's decision were not sufficient at law due to his failure to explicitly deal with particular aspects of evidence and the submissions of the parties.

II ANALYSIS

A) Standard of Review

In the Southam decision³ the Supreme Court of Canada found that the appropriate standards of review in Canada fall along a spectrum somewhere between correctness, at the more exacting end of the spectrum, and patent unreasonableness, at the more deferential end. The proper standard is to be determined inter alia by the presence or absence of privative clauses, the existence of statutory appeal rights, if any, the degree of specialization or expertise of the decision maker, the purpose of the statute and the nature of the question under review.

With respect to the issue of the relative specialized knowledge or expertise of a decision maker, Iacobucci J. stated that expertise is "the most important of the factors that a court must consider in settling on a standard of review".⁴

In my analysis, a key factor in setting the standard of review in this case is that the decision was not made by a tribunal with expertise, but rather was made by the ADM of DIAND. While DIAND and its Minister have ongoing responsibility for the administration and regulation of mineral tenure in the North West Territories ("NWT"), the Minister also deals with a broad spectrum of issues, including land claims, band administration, education, oil and gas and forestry matters to name but a few.

In the case before me, the question of whether the words "any interest" in section 49 mean merely a legally enforceable interest, or demand a broader interpretation, is a question of law which has precedential importance and the potential to apply widely in many cases. Again, quoting Iacobucci J. in Southam:

"... the question was one of law, in part because the words in question were present in a statutory provision and questions of statutory interpretation are generally questions of law, but also because the point in controversy was one that might potentially arise in many cases in the future: the argument was about kinds of information and not merely about the particular information that was at issue in that case".5

In summary, given that there is no privative clause, that the ADM is not a tribunal with particular expertise, that the interpretation of the phrase "any interest" does not require any particular technical or scientific knowledge and that the question is one of law with broad application, I am well satisfied that the Chambers Judge applied the appropriate standard of review; that of correctness.

B) The interpretation of the words "any interest" in section 49 of the Regulations

The appellants challenge the Chambers Judge's ruling that the words "any interest" in s. 49(1)(a) of the Regulations are less than a legal or equitable interest enforceable in a court of law. Section 49(1) reads:

49.(1) Subject to section 50, where a recorded claim lapses or is cancelled, the holder of the claim at the time it lapsed or is cancelled shall not

(a) relocate or have any interest in the claim or any part thereof, or ...

(b) have the claim or any part thereof recorded in his name or in the name of any corporation controlled by him for a period of one year from the date that the claim lapsed or was cancelled.

                

49.(1) Sous réserve de l'article 50, lorsqu'un claim enregistré devient périmé ou est annulé, le détenteur du claim ne peut

(a) relocaliser le claim ou une partie de ce claim ni y détenir un intérêt de quelque nature que ce soit, ni...

(b) faire enregistrer ce claim ou une partie de ce claim à son nom ou au nom d'une société contrôlée par lui, pendant une année à partir de la date à laquelle le claim devient périmé ou est annulé.

In his reasons, the ADM reached the following conclusion:

"This concept of an(y) interest is very broad. The interest could be as significant as ownership in the claim or as minor as expressing an interest in the claim. The former is certainly within the realm contemplated by paragraph 49(1)(a), the latter obviously not. The problem is where to draw the line.

Interest is not a defined term in the Canada Mining Regulations, the Northwest Territories Companies Act or the Alberta Business Corporation Act. The Oxford Concise Dictionary defines interest as legal concern, title, right, (in property) pecuniary stake (in commercial undertakings) and also as a thing in which one is concerned. Black's Law Dictionary defines interest as "The most general term that can be employed to denote a right, claim, title, or legal share in something. In its application to lands or things real, it is frequently used in connection with terms `estate,' `right' and `title.' More particularly it means a right to have the advantage accruing from anything; any right in the nature of property, but less than title."

In this fact situation, the proper interpretation of the word "interest" is one which denotes a right of ownership. This means that Tyler must have had some legal or equitable right to the mineral claims, a right that could be enforced in a court of law."

The Chambers Judge disagreed and concluded as follows in paragraph 122 and 123 of his reasons:

"[122] It is true, as the ADM noted in his reasons, that if the meaning of "any interest" is not restricted to legal or equitable interests in property, then it will be difficult to know where to draw the line along the range of meanings that these words may reasonably bear. This is a task that should be left principally to the administrative officials who regulate mining through the Canada Mining Regulations: the role of the court is to ensure that the words are not misinterpreted, nor applied unreasonably: Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20; 144 D.L.R. (4th) 1.

[123] In the context of this scheme, it seems to me that legal certainty should not be purchased at the expense of effective regulation, and this would surely be the result of limiting the words in the manner proposed by the ADM. On an application for judicial review it would not be fruitful for me to attempt to provide a comprehensive definition of the meaning of the words "any interest". However, I can say that they should be applied case-by-case, possibly with the benefit of guidelines published by the Minister, so as to ensure as far as possible that the underlying purposes of the statutory scheme are not undermined by imaginative commercial or corporate arrangements designed to minimize or avoid the expense of investing in exploration that the legislative requires as the price for retaining a claim to the exclusion of other prospectors."

As I read the Chambers Judge reasons, he chose not to define the words "any interest". He was satisfied that they meant less than a legal or equitable interest in property, but he would not draw the line, leaving that task to the administrative officials who regulate mining claims through the Regulations.

With respect, it is the duty of the courts to interpret the words in issue so as to bring legal certainty to the interested parties. Once the legal terms in a statute or regulation are interpreted, they are to be applied on a case by case basis by the appropriate tribunal or decision-maker. If ministerial guidelines are needed to complement the Regulations as seems to be suggested by the Chambers Judge, they are to be developed and published by the Minister, if authorized to do so, prior to the events that give rise to the dispute.

In any event, I have reached the conclusion that the words "have any interest in the claim" found in paragraph 49(1) (a), whether taken in isolation, in context or in prospect, can only have the restrictive meaning given to them by the ADM.

In isolation

If the words at issue were simply "any interest", the interpretation retained by the Chambers Judge would probably be the correct one. But the words to be interpreted are "have any interest in the claim" and the word "claim" is defined in subsection 2(c) of the Regulations as "a plot of land located or acquired in the manner prescribed by these Regulations." The "interest" that is contemplated by paragraph 49(1)(a) is therefore an "interest in land", an expression in legal parlance which has the accepted meaning found, amongst others, in Black's Law Dictionary and already quoted in the ADM's reasons. The word "any" does not modify the nature of the "interest" to which it relates and merely denotes the intention of the maker of the regulation to capture all possible forms of proprietary interest in land.

This interpretation is supported by the French version of section 49 which uses the words "y détenir un intérêt de quelque nature que ce soit." The word "détenir" is narrower than "avoir". It is used to describe the action of being in possession⁶ and it has been translated in legal dictionaries as "to hold or to possess".⁷ The words "de quelque nature que ce soit", when attached to the word "intérêt", cannot but mean holding or possession by any means and is meant to cover all forms of interest in land recognized at common law. I note that the words "any interest therein" in the context of "any interest in a recorded claim" have been translated by "tout intérêt s'y rapportant" in Regulation 62(1), quite similar in practice to "de quelque nature que ce soit".

The restrictive meaning of the word "interest" in paragraph 49(1)(a) is also consistent with the narrow approach taken in paragraph 49(1)(b). When dealing with the recording of a claim that has lapsed or has been cancelled, paragraph 49(1)(b) only disqualifies the former holder when he has the claim recorded in his name or when he has the claim recorded "in the name of any corporation controlled by him". It would make little sense to allow a person under paragraph (b) to have a claim recorded by a corporation of which that person is an important (but not controlling) shareholder, and yet to disqualify that same person under paragraph (a) because she could be said to have "any interest in the claim".

The link between "any interest in the claim" and proprietary interest is further supported by the introductory words of subsection 49(1), i.e. "Subject to section 50...". Section 50 refers to "personal property" that can be removed from the claim.

The proper view, it seems to me, is that subsection 49(1) evidences, by the very wording used, a clear intention to disqualify only those holders who have kept some form of proprietary interest in the claim.

In context

The restrictive interpretation adopted by the ADM is consistent with the use of the words "any interest" elsewhere in the Regulations. As found by the Chambers Judge at paragraph 120 of his reasons, the context of subsections 8(4) and 62(1) and (5) -- he could have added 56(1) -- "clearly indicates that the words mean "proprietary interests". Had he interpreted the words "any interest" in their true context, i.e. "any interest in a plot of land", he could not but have come to the conclusion that the presumption that words are intended to have the same meaning throughout the Regulations had very much force in the instant case. It does indeed make sense in Regulations dealing with the disposition of minerals and the acquisition and recording of plots of land known as claims to give the word "interest" the same meaning throughout.

In prospect

There is no doubt, as pointed out by the Chambers Judge, that the purpose of subsection 49(1) is to support the statutory policy inherent in the "representation works" requirements which are the price of retaining a mineral claim. The question is, however, to find out what it is that the Regulations seek to prevent, not what it is that in the view of a judge they should be seeking to prevent.

That purpose can be achieved in different ways. The Regulations have clearly adopted what I would call a softer approach. They have focussed on some form of proprietary interest. They could have been directed at a wider form of interest, but they are not. It is not the role of the courts to second-guess the means used by Cabinet to achieve a given purpose, and this is even more so where the alternative or wider means proposed by the courts would not meet the test of legal certainty.

I therefore conclude that the words "have any interest in the claim", in paragraph 49(1)(a) of the Regulations, mean "have any legal or equitable right to the claim". I note in passing that the respondents themselves, in their written submissions submitted to the ADM on October 10, 1996, had interpreted the word "interest" as referring to the "beneficial interest" of Tyler and Golden Rule.⁸

C) Whether the ADM breached the duty of fairness in refusing to recognize or exercise his discretion to permit cross-examination.

I am not in agreement with the Chambers Judge in his ruling that the ADM in this case failed to act in accordance with the principles of natural justice when he denied cross-examination on the Boyd Warner statutory declaration ("Warner declaration"). I do not, however, dispute the Chambers Judge's observation that there may be circumstances in "paper hearings" such as this where fairness dictates the right to cross-examination.⁹ In my opinion, however, the ADM did not err in the exercise of his discretion when he denied the Warner cross-examination.

The respondents applied for ministerial review on May 25, 1996. The Warner declaration was filed in June of 1996 well before September 18, 1997 which ended the period for submissions and comments on submissions made by others. The respondents provided detailed written submissions on two occasions respecting all matters in issue including the admissibility of the Warner declaration and its probative value without any suggestions of a need for cross-examination to effectively make their case. By their submission, it is apparent to me that the respondents established that there were effective means of presenting their argument without cross-examination.

The ADM Decision stated:

"In their rebuttal submissions received September 17, 1997 counsel for Gerle and Southern Era have demanded an opportunity to cross-examine Warner on his June 1996 statutory declaration. In addition, counsel for Monopros Ltd. wished to cross-examine the Supervising Mining Recorder and representatives of Golden Rule and Inukshuk. Counsel has had some 15 months to request the cross-examination of Warner. I am not prepared to order or request that Warner, McRobert or representatives of Golden Rule and Inukshuk undergo cross-examination at this very late stage of the review. In any event, I do not have the power to subpoena witnesses."

The request by the respondents for cross-examination was made outside the statutory scheme mandated by s. 84 of the Regulations and was out of time. The Warner declaration was before the Minister and the parties from the outset. The request for cross-examination was made at the rebuttal stage of the review. Section 84 of the Regulations restricts the right of rebuttal to "any information considered during his review that is not already of public record and that may be lawfully provided".¹⁰

The Chambers Judge was influenced by the fact that the ADM noted in his reasons that he did not have the power to subpoena witnesses. In the Chambers Judge's view, "this indicated that the ADM thought that he could never accede to a request for cross-examination". He went on at paragraph 77, "If this was his view, then in my opinion the ADM unlawfully failed to consider the exercise of his discretion".

With respect, one should be careful in judicial review not to read microscopically the reasons for decision of a tribunal. In the case at bar, the ADM had already exercised his discretion and had already decided against cross-examination when he noted that he has no power to subpoena witnesses. That was a fair comment to make, for there is no doubt, as appears from the reasons of the Chambers Judge himself, that cross-examination, absent the power to subpoena witnesses, does not sit well in paper hearings even though, as I said earlier, it may nevertheless be appropriate in some circumstances.

Where, as here, the ADM recognized and exercised his discretion taking into account relevant factors and having previously provided all parties with an ample opportunity to respond to all the material presented, it was a legal error for the Chamber Judge to forego any deference and instead to substitute his weighing of the factors for that of the ADM.

D) Whether the ADM erred in failing to provide sufficient reasons for his decision and in particular, failed to deal with significant aspects of evidence in the circumstances.

In my view the Chambers Judge correctly held that the reasons given for the ADM decision were inadequate to meet the statutory obligation under section 84 of the Regulations to "advise the applicant in writing of his final decision with reasons".

With respect, I do not agree with the Chambers Judge that the ADM's brief analysis was in the nature of boilerplate. I agree, however, with his conclusion at paragraph 99 of his reasons that the quantity and cogency of the evidence submitted by the respondents made it sufficiently compelling as to require much more analysis than was provided in the ADM's reasons. This is particularly so with respect to his key findings of fact on whose behalf the mining claims were staked and recorded. These findings were based on the Warner declaration without reference to the other documentary evidence which had been submitted.

The decision of the Chambers Judge follows the Supreme Court ruling in Northwestern Utilities Ltd. et al v. Edmonton,¹¹ which dealt with a similar statutory requirement to give reasons under the Alberta Administrative Procedures Act.¹² At page 707 Estey J. stated:

...the reasons must be proper, adequate and intelligible, and must enable the person concerned to assess whether he has grounds of appeal... the order of the Board reveals only conclusions without any hint of the reasoning process which led thereto.

III CONCLUSION

In the end, even though I disagree with some of the Chambers Judge reasons for judgment, I also reach the conclusion that the decision of the ADM should be set aside and that matter should be remitted to the Minister of her delegate other than Mr. James Moore for redetermination de novo in accordance with these reasons for judgment. A redetermination de novo implies, of course, that the chosen delegate exercise de novo any discretion he or she might have, notably with respect to any request for cross-examination. As it was inappropriate for the Chambers Judge to restore, even on a conditional basis, the decision of the Supervising Mining Recorder dated May 10, 1997, I would delete that relief from his Order.

In view of the divided success both parties should bear their own costs in both Divisions of this Court.

I would therefore allow the appeal without costs for the sole purpose of substituting the following order for that of the Chambers Judge:

     ORDER

i)      The decision of the Assistant Deputy Minister dated November 20, 1997 is set aside;

ii)      The matter is remitted to the Minister of the Department of Indian Affairs and Northern Development or her delegate other than Mr. James Moore for redetermination de novo in accordance with the reasons for judgment of this Court; and

iii)      There is no order as to costs in either Division of the Court.

J.A.

¹C.R.C, c. 1516.

²The reasons for decision of the Learned Chambers Judge are reported at (1999) 163 F.T.R. 185.

³Canada (Director of Investigation and Research) vs. Southam Inc. [1997] 1 S.C.R. 748 at paragraph 30; Re Pushpanathan v. Canada (Minister of Citizenship and Immigration) [1998] 1 S.C.R. 982 at para. 23..

⁴Supra at para. 50.

⁵Southam, at paragraph 36.

⁶ Le Grand Robert de la Langue Française, p. 464.

⁷See Bilingual Lexicon of Legislative Terms, Office of Legislative Counsel, Ontario, 1998.

⁸Appeal Book, vol. 6 at p. 821.

⁹Armstrong v. Royal Canadian Mounted Police (Commission) et al [1994] 2 F.C. 356 at p. 369.

¹⁰At that time section 84 read as follows:
     Any person who is dissatisfied with any order, decision or direction or with any other action taken or omitted to be taken under these Regulations by the Supervising Mining Recorder, a Mining Recorder, the Chief or an engineer of mines may, within 30 days after the order, decision or direction or the taking of or omitting to take the action, apply to the Minister in writing for a review of the matter and the Minister shall review the matter, provide the applicant with any information considered during his review that is not already of public record and that may be lawfully provided and, after allowing 30 days for the applicant to rebut any information so provided, the Minister shall advise the applicant in writing of his final decision with reasons.(Emphasis added)

¹¹[1979] 1 S.C.R. 684">[1979] 1 S.C.R. 684.

¹²R.S.A. 1970, c. 2.