Date: 19980514
Docket: T-1833-97
BETWEEN:
LUCAS KNOL,
Applicant,
- and -
HER MAJESTY THE QUEEN
and GERALD McCULLY,
Respondents.
REASONS FOR ORDER
(Delivered orally from the Bench on April 23, 1998, as edited)
MCKEOWN J.
[1] The applicant seeks judicial review of a decision dated July 30, 1997, of the Mining Recorder refusing the applicant's application for a vesting order under section 44 of the Yukon Placer Mining Act, R.S.C. 1985, c. Y-3, amended 1991, C.2.
[2] The issues are whether the Mining Recorder considered all relevant information or considered extraneous or irrelevant evidence and whether the Mining Recorder exercised his discretion improperly and made unreasonable findings.
[3] The applicant made submissions on a denial of natural justice and denial of a fair hearing. These are groundless. The applicant believed the 1995 hearing transcripts would be available to the 1997 hearing. The applicant was forwarded all relevant documents, not including the 1995 hearing transcript, one month before the hearing and the applicant was requested at that time to provide any other information he would wish to have reviewed at the hearing.
[4] The applicant did not provide the 1995 transcript (which could not have been accepted without the approval of the Federal Court since a new hearing had been ordered, or perhaps, by the Mining Recorder with the consent of all parties) and made no references to the transcript at the hearing.
[5] It was the applicant who sought judicial review of a 1995 hearing and it was allowed. The applicant is not allowed to pick and choose the portion of the hearing he wishes redetermined unless he makes such a request of a reviewing court. No such request was made in 1996. He asked for the entire matter to be reheard in his judicial review application.
[6] Furthermore, the transcript is clear that the Mining Recorder never accepted the applicant's position that only contributions made between 1989 and 1993 would be considered. The Mining Recorder is entitled to choose a reasonable period in which to examine the work done and fees paid. In the case at bar, the Mining Recorder did this. There was no breach of natural justice or denial of a fair hearing.
[7] The applicant submits that only the actual cost of work was to be considered and, in my view, the Mining Recorder only looked at actual costs (see Schedule of Representation Work, first paragraph, for policy on actual costs).
[8] The most contentious issue was whether the finding of the Mining Recorder that the 1984 contributions and payment of fees by Mr. Brown were for his interest only. It was open to the Mining Recorder to find that Mr. Brown made the 1984 contributions and payment of fees in spite of the sworn testimony to the contrary by Mr. Knol. The Mining Recorder raised this issue continually during the hearing and was not prepared to accept Mr. Knol's consistent testimony that the payments were made out of joint funds.
[9] There was a reference to section 45, now section 44 of the Act, in Mr. Brown's 1984 affidavit. Furthermore, there was no partnership in existence between Mr. Brown and Mr. Knol.
[10] The finding by the Mining Recorder that Mr. Brown and his successor, Mr. McCully, did perform their respective share of work and did pay their renewal fees is not an erroneous finding of fact and was not made capriciously or without regard to the evidence. The correct standard of review to be applied to the Mining Recorder's decision is that of reasonableness simplicitator. In other words, was it unreasonable (see Canada (Director of Investigation and Research) v. Southam Inc. (1997), 114 D.L.R. (4th) 1 (S.C.C.)).
[11] There is no evidence that the Mining Recorder failed to exercise his discretion in a manner consistent with the promotion of the policies and objects of the Act. He properly exercised his discretion.
[12] The Mining Recorder's decision was not unreasonable because he decided the co-owners had properly contributed to the work and payment of fees. The real issue was whether the applicant proved to the Mining Recorder's satisfaction that the co-owner, Mr. Brown, and the subsequent co-owner, Mr. McCully, had not met the necessary requirements of the Act regarding the proportionate share of work to be done, and renewal fees to be paid on the claims.
[13] The Mining Recorder did not err in denying Mr. Knol's application for a vesting order.
[14] The application for judicial review is dismissed.
William P. McKeown
JUDGE
OTTAWA, Ontario
May 14, 1998.
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