





CITATION: Ontario (Transportation) v. 1520658 Ontario
      Inc., 2011 ONCA 373



DATE: 20110513



DOCKET: C52170



COURT OF APPEAL FOR ONTARIO



Feldman, Juriansz and LaForme JJ.A.



BETWEEN



Minister of Transportation



Applicant (Appellant)



and



1520658 Ontario Inc.



Respondent (Respondent)



Ronald Carr and Kevin Hille, for
          the appellant



Richard Butler and Neal Smitheman,
          for the respondent



Heard: November 9, 2010



On appeal from the order of the
          Divisional Court (Wilson, Lederman and Aston JJ.) dated October 16, 2009, with
          reasons by Lederman J. reported at (2009), 90 M.V.R. (5th) 253.



Juriansz J.A.:



OVERVIEW

[1]

This appeal concerns the validity of a mining claim staked on Crown land
    upon which the Ministry of Transportation of Ontario (MTO) was preparing to
    build a highway.

[2]

Under the
Mining Act
, R.S.O. 1990, c. M.14 (Act), land in the
    actual use or occupation by the Crown or a ministry of the government of
    Ontario is excluded from the definition of Crown land that can be staked for
    mining.  A tribunal of the Mining and Land Commissioner (the Commission)
    found that the MTO was not making actual use of the land when it was staked
    and so the respondents mining claim was valid.  The Divisional Court dismissed
    the MTOs appeal and the MTO was granted leave to appeal to this court.  On
    appeal, the MTO argues that the activities connected to determining the
    feasibility of constructing a highway on a particular route constituted an
    actual use of the land.

[3]

I would dismiss the appeal for the same reasons as did the Divisional
    Court.  The Commissions decision is to be reviewed on a reasonableness
    standard and its decision was reasonable.

FACTS

[4]

The MTO intended to expand Highway 69 from Muskoka Road 5 in the south
    to Sudbury in the north.  Planning studies for the reconstruction of the
    highway along a new route began in 1995.  An environmental assessment completed
    in 1999 recommended alternative corridors for the route of the new expanded
    highway.  Difficulties emerged with the route first considered and in 2002 the
    MTO began to consider a second proposed route.  Beginning in January 2003, the
    MTO cut a narrow swath through the bush along the centre line, placed survey
    stakes at intervals of 25 to 50 metres along the line and drilled boreholes to
    assess the foundation.  On June 23, 2003, the MTO made an order under s.
    35(1)(a) of the Act withdrawing the lands from prospecting, staking out, sale
    or lease.

[5]

Meanwhile in April 2003, before the withdrawal order was made, the
    respondents representatives staked claims in lands that partially overlapped
    with those surveyed by the MTO.  The respondent registered those claims with
    the Office of the Provincial Mining Recorder (PMR) in Sudbury.  On December
    3, 2004, the MTO released a tender for the construction of the new highway. 
    The respondent says it first became aware of the MTOs fieldwork on the lands
    through this tender.

[6]

The MTO applied to the Superior Court of Justice for a declaration that
    the respondents mining claims were invalid because the lands were in actual
    use and occupation of the Crown at the time of staking, pursuant to ss. 1(1)
    and 27(a) of the Act.

[7]

Low J. of the Superior Court ordered a transfer of the proceedings in
    the Superior Court to the Commission under s. 109 of the Act, on consent of
    both parties.  The respondent then cross-applied for dismissal of the MTOs
    application and for declaratory relief, including a declaration that the mining
    claims were validly staked.

The Decision of the Commission

[8]

The Commission found that the MTO had failed to establish that the lands
    were in actual use and occupation of the Crown and that the mining claims
    were valid.  It held that an actual use was one that exists, that is
    recognizable as a use, that is describable, and that is known to be a use.  The
    MTO was not actually using the land.  The mere intention to eventually use the
    land was not sufficient.  The MTOs assessment of the lands suitability for
    the highway was a preliminary use and not enough to withdraw the lands from
    being staked.  The Commission observed that had the MTO wanted to withdraw the
    lands from staking, it could have formally done so under s. 35 of the Act.

The Decision of the Divisional Court

[9]

The Divisional Court dismissed the MTOs appeal.

[10]

After considering the statutory regime, the nature of the question at
    issue and the Commissions expertise, the court held that the standard that
    applied to the review of the Commissions decision was reasonableness.  The
    Divisional Court decided that the Commission was owed deference both in the
    interpretation of the phrase actual use or occupation and in its application
    to the circumstances of this case.

[11]

The MTO submitted that the work it was doing on the land, i.e.
    surveying, cutting swaths, planting survey stakes and digging up to 2,000 bore
    holes, constituted an actual, albeit temporal, use of the land.

[12]

The Divisional Court observed that [w]here one draws the line between
    preliminary and substantive use is a question of fact which may not in all
    cases be easy to discern and went on to find that the Commissions decision
    fell within a range of reasonable outcomes.  The Commission was reasonable in
    taking a contextual view of the phrase actual use or occupation, having
    regard to other sections of the Act and the policies associated with it.

[13]

The MTO now appeals to this court.

ISSUES

1. What is the standard of
    review?

2. Does the Commissions decision meet the
    applicable standard?

ANALYSIS

The Standard of Review

[14]

The MTO submits that the standard of review that applies to the
    Commissions decision is correctness and not reasonableness.

[15]

The MTO argues that the interpretation of the phrase actual use or
    occupation is a pure question of law that does not involve any special
    technical expertise, does not require any polycentric weighing of factors, and
    will set a precedent for all future cases involving the temporary use of Crown
    land.  The MTO also points out that the Act provides a general right of appeal
    to the Divisional Court from any decision of the Commission.  The MTO submits
    the Divisional Court was wrong to reason that the Commissions concurrent
    jurisdiction with the Superior Court over certain kinds of claims invites
    deference to the decision of the Commission.  Rather, the MTO submits,
    concurrent jurisdiction runs counter to the suggestion that the legislature
    intended that the administrative agency have the exclusive jurisdiction to
    decide the questions.

[16]

I agree with the Divisional Court that the standard of review is
    reasonableness.

[17]

The Office of the Mining and Lands Commissioner is an unusual
    administrative body.  The Commission is constituted by the
Ministry of
    Natural Resources Act
, R.S.O. 1990, c. M.31 and not by the Act.  The
    Commission exercises jurisdiction under the Act, but also under the
Conservation
    Authorities Act,
R.S.O. 1990, c. C.27; the
Conservation Land Act,
R.S.O.
    1990, c. C.28; the
Aggregate Resources Act
, R.S.O. 1990, c. A.8; the
Oil
    Gas and Salt Resources Act
, R.S.O. 1990, c. P.12 and regulations under the
Assessment
    Act
, R.S.O. 1990, c. A.31.  Therefore, the Act may not be the home
    statute of the Commission in the sense that it is constituted by and has its
    functions governed exclusively by that statute.

[18]

That said, Part VI of the Act, entitled Land and Mining Commissioner,
    bestows broad jurisdiction on the Commission to exercise a number of functions
    and responsibilities.  Perusal of the Act makes clear that the Divisional Court
    was correct in observing that the Commission has expertise with respect to
    prospecting, mining claims and priorities under the Act, and has a contextual
    understanding of the interests and practices of competing constituencies under
    the Act, including a familiarity with the practices of those who stake
    claims.  One might add that the Commission, given its responsibilities under
    other statutes, has the broad expertise to consider the Acts land use policy
    in a wider context.

Statutory right of
    appeal

[19]

The right to appeal the Commissions decision to the Divisional Court is
    set out in s. 133 of the Act:

Where not otherwise provided, an appeal lies to the
    Divisional Court from any decision of the Commissioner.

[20]

Clearly, the existence of a broad unrestricted right of appeal is a
    factor that generally points towards less deference being owed to the
    administrative decision maker. However, the right of appeal must be considered
    in the context of the statute as a whole.

[21]

The Act, while not giving the decision of the Commission the protection
    of a privative clause in this case, does contain strong indications that
    questions relating to mining claims are to be determined through the
    comprehensive administrative scheme created by the statute.

[22]

In s. 4, the Act provides that all public lands for mining purposes and
    for the purposes of the mineral industry shall be administered by the Minister
    of Northern Development, Mines and Forestry.  The Minister delegates authority
    to officials, such as provincial mining recorders, who approve applications for
    mining claims and manage the Provincial Recording Office.  Recorders hear and
    determine disputes with respect to unpatented mining claims.  Section 110(5)
    provides that their decisions are final and binding unless appealed to the
    Commission.

[23]

The Act bestows exclusive general jurisdiction on the Commission to
    determine every claim, question and dispute concerning any right, privilege or
    interest conferred by or under the Act, subject to limited exceptions.  It
    provides:

105.  (1)  No action lies and
    no other proceeding shall be taken in any court as to any matter or thing
    concerning any right, privilege or interest conferred by or under the authority
    of this Act, but every claim, question and dispute in respect of the matter or
    thing shall be determined by the Commissioner except as otherwise provided in
    section 171 or elsewhere in this Act and except for matters relating to
    consultation with Aboriginal communities, Aboriginal or treaty rights or to the
    assertion of Aboriginal or treaty rights.

[24]

The Commission determines whether a licensee or holder of a mining claim
    has been guilty of a wilful contravention of the Act or its regulations and may
    recommend to the Minister the revocation of a licence or the cancellation of a
    mining claim (s. 26).  The Commission may determine disputes about the extent
    to which land is exempt from staking (s. 32(2)) and may cancel the recording of
    a licensee or a holder who has knowingly made a false statement in the
    application to record the claim (s. 44(1.2)).

[25]

The above provisions help to establish the statutory context in which
    the right of appeal from the Commission to the Divisional Court is found.  When
    considered in this context, the right of appeal provides little support for the
    argument that the standard of review to be applied to the Commissions decision
    is correctness.  On the contrary, the statutory context lends considerable
    support for the Divisional Courts observation that the Act is intended to
    provide for the administration of mining resources owned by the province under
    the general direction of appointees of the Ontario government and to give the
    Commission the exclusive jurisdiction over any matter involving interpretation
    of the provisions thereof.

Concurrent Jurisdiction

[26]

The appellants submission that, where the legislature has given the
    court and an administrative body concurrent jurisdiction, less deference is
    warranted is intriguing, at least in the abstract.  The appellant, however, did
    not fully develop the argument.  The appellant provided no assistance in
    situating what it describes as the courts concurrent jurisdiction in the
    context of the statute or the circumstances of this case.

[27]

Section 105, set out above, does not seem to contemplate concurrent
    jurisdiction in the strict sense.  Rather, it seems to contemplate that the
    Commission enjoys exclusive jurisdiction to determine every claim, question and
    dispute arising under the Act. Especially pertinent to this case is s. 32(2)
    that provides specifically that if a dispute arises between the intending
    prospector and the owner, lessee, purchaser or locatee regarding whether land
    is exempt from prospecting or staking out, it is the recorder or the
    Commissioner who shall determine whether lands are exempt from staking.

[28]

Section 105 is subject to s. 106 that provides that the Commission has
    no power to declare forfeited or void or to cancel or annul any Crown patent
    issued for lands, mining land, mining claims or mining rights; proceedings for
    such relief may be brought or taken in the Superior Court of Justice.

[29]

The Act then provides for the transfer of proceedings between the
    Commission and the Superior Court in ss. 107 to 109.  Section 107 allows a
    party to a proceeding brought before the Commission to apply to the Superior
    Court for an order transferring the proceeding to that court.  Section 108
    allows the court in which an action is brought to refer the action or any
    question therein to the Commissioner as a referee.  Section 109 provides for
    the transfer by the court to the Commission of a proceeding that should have
    been taken before the Commissioner but is brought in a court.

[30]

As I read these provisions, it is the Commission that is granted general
    jurisdiction to decide matters under the Act, except for enumerated matters
    that the Commission has no power to decide.  Proceedings to decide such
    matters are to be brought in the Superior Court.  The court may also refer the
    action or any question therein to the Commissioner as a referee.  The court
    may also transfer a proceeding to the Commission that should have been taken
    before the Commissioner in the first place.

[31]

No matter how one describes this unusual arrangement, I agree with the
    Divisional Court that the arrangement invites deference to the Commission. 
    The reason the statute permits the court to refer a particular question or even
    the entire action to the Commission is to be able to take advantage of the
    Commissions broad expertise.

[32]

Before leaving this issue, it is worth noting that the appellants
    application was commenced in the Superior Court, but was transferred to the
    Commission under s. 109 on consent.  The appellant must be taken then to
    recognize that this proceeding should have been taken before the Commissioner
    in the first place.

Question of general law

[33]

The appellant is correct that the proper interpretation of the phrase
    actual use or occupation is a question of law.  It is not, however, a
    question of general law that is both of central importance to the legal system
    as a whole and outside the adjudicators specialized area of expertise:
Dunsmuir
    v. New Brunswick
, [2008] 1 S.C.R. 190, at para. 60.

[34]

I agree with the Divisional Court that the nature of the question in
    this case involves the interpretation of the
Mining Act
and its
    application to the MTOs activities on the land.  The Divisional Court was
    correct to observe that fact and law were inextricably mixed in the question. 
    The Supreme Court has stated at para. 51 of
Dunsmuir
that such questions
    generally attract the standard of reasonableness.

CONCLUSION

[35]

I agree with the Divisional Courts conclusion that the standard of
    review that applies to the Commissions decision in this case is
    reasonableness.

The
    Commissions decision

[36]

The Commission set out the test they applied to determine whether the
    activities carried out on the land fell under actual use:

The word actual is used as an adjective, while
    the word use is a noun. Actual connotes an existence in reality; something
    really exists. It is real and not imaginary or potential, or possible or
    intentional; it exists in the present. The phrase actual income is an example
    familiar to taxpayers. The phrase actual use therefore must refer to a use
    that exists, that is recognizable as a use, that is describable, and that is
    known to be a use. It follows that an actual use of the Crown must have all of
    these features but should also have a recognizable Crown component.

[37]

The appellant endorses this test and emphasizes that it does not require
    a use to be permanent.  The appellants argument is that, in applying the
    test, the Commission rejected the MTOs use of the land to plan the route of a
    highway because that use was not permanent.  At law, the MTO says, it is only
    necessary that the lands be in actual use at the time it is intended to be
    staked.

[38]

The appellant argues strenuously that its use was actual.  It argues
    it was actually using the land to plan the highway.  It points out it was not
    merely considering the route for the highway in a government office or just
    consulting with the public about the route, but had physically entered upon the
    land, surveyed it, cut a one metre swath through the bush, placed stakes along
    the centre line of the route of proposed highway and drilled bore holes to
    determine the terrains structure.  The appellant submits that, although these
    activities made only temporary use of the land, they met the definition adopted
    by the Commission: the activities were not imaginary or potential, but existed
    in the present and were describable as a use.  The MTO submits that, in
    applying the definition it had earlier set out, the Commission imposed the
    additional requirement that the use be permanent.

[39]

I do not read the Commissions reasons as finding that the MTOs
    activities did not constitute an actual use because they were not permanent. 
    On my reading, the Commission rejected the use the MTO put forward because
    its activities were preliminary; they were a precursor to the actual use of
    the land as a highway.

[40]

What makes things tricky is that every use that is a precursor to
    another may be described as preliminary and is bound to be temporary.  The use
    of land to actually construct the highway is preliminary, a precursor to the
    permanent use of the land as a highway.  Yet there the parties are agreed that
    constructing a highway would constitute an actual use of the lands.

[41]

There is no fault in the appellants logic.  The difficulty with it is
    that, carried to the extreme, it could be said that whenever Crown employees or
    agents are present on land they are making use of it.  If Crown employees were
    doing nothing more than simply travelling across the land, it could be said
    they were actually using the land to reach their destination.  The Divisional
    Court made the pivotal observation that the interpretation and application of
    the words actual use involve line drawing, and where one draws the line
    between preliminary and substantive use is a question of fact which may not in
    all cases be easy to discern.  According to the scheme of the Act, the tricky
    question of where one draws that line should be resolved by the Commission,
    subject to the right of appeal.

[42]

In this case, the Commission drew the line with due regard for the Acts
    policy and purpose.  The Act itself in s. 2 states that its purpose is to
    encourage prospecting, staking and exploration for the development of mineral
    resources.
Section 27(a) specifically allows staking on Crown
    lands whether they are surveyed or unsurveyed. The Commission pointed out
    that the Head of Planning and Design for the MTO described the two sets of
    survey stakes and clear cuts as engineering surveys and remarked that his
    approach is indicative of the Ministrys view of the work it was undertaking
    at the time and that is that the work connoted a preliminary stage. It could
    not be described as an actual use. The Commissions finding that the appellants
    activities did not constitute actual use is not unreasonable but lies within
    the range of acceptable outcomes.

[43]

I have had the opportunity to read the reasons of my colleague Feldman
    J.A.  I agree with her that the Commissions reasons show an insufficient
    appreciation of the weight to be accorded to a statutes definitions.  A
    statutes definitions should drive the interpretation of its provisions.  I
    also agree that the fact the Crown has not taken the executive initiative to
    make an order withdrawing lands from staking under s. 35 of the Act does
    not preclude it from relying on its actual use of lands, where that is the
    case.

[44]

However, I do not regard the Commissions comments on these issues to be
    as unequivocal as my colleague does or as germane to its decision.  As I read
    its reasons, the Commissions decision turned on its conclusion that the MTO
    was not in actual use of the lands.  Its comments on these other issues must
    be read in that light.  For example, the Commissions remark that it was not
    prepared to agree that the definition of Crown land should drive the operation
    of the Act had application only insofar as it relates to the setting aside of
    lands for anticipated public works.  As I read it, the remark is predicated on
    the Commission already having concluded the Crowns use was anticipated and
    not actual.

[45]

The word actual is pivotal in this case.  As I have stated, it is my
    view that the line between an anticipated use and an actual use should be
    drawn by the Commission, acting reasonably. I see no grounds for interfering
    with where the line was drawn in this case.

The Respondents Certificate

[46]

MTO also submitted that the Commission erred by failing to cancel the
    respondents staking certificate for making a false statement in the
    application to record its claim.  The respondents agent had seen the MTOs cut
    and its stakes when he first went on the land but had not disclosed them in the
    claim application.  The Commission found that the clear-cutting and survey
    stakes that were seen would point to the fact that someone may have been on the
    land for some purpose, but these were not enough to constitute an improvement
    to the lands in the sense contemplated under the Act.  What the respondent had
    seen was in the nature of evidence that engineering surveys had been carried
    out.

[47]

This was a matter squarely within the Commissions jurisdiction.  There
    is no reason to disturb its finding.

DISPOSITION

[48]

I would dismiss the appeal.  I would fix the respondents costs on a
    partial indemnity basis in the amount of $11,000.00 for the application for
    leave to appeal, and $37,000.00 for the appeal, both amounts inclusive of
    disbursements and applicable taxes.

R.G. Juriansz J.A.

I agree H.S. LaForme
    J.A.


Feldman J.A. (Dissenting):

[49]

I have had the opportunity to read the reasons of my colleague Juriansz
    J.A. and I agree with his conclusion that the standard of review of the
    decision of the Mining and Land Commissioner (Commissioner) is the
    reasonableness standard.  However, in my respectful view, the Commissioners
    decision in this case is an unreasonable one within the meaning and applying
    the criteria set out by the Supreme Court of Canada in
Dunsmuir v. New
    Brunswick
,
[2008] 1 S.C.R. 190
.  Two aspects of
    the Commissioners interpretation of the
Mining Act
, R.S.O. 1990, c.
    M.14 (the Act) are at the heart of the decisions unreasonableness.  First,
    after interpreting the term actual use found in the Acts definition of
    Crown land, the Commissioner failed to apply its own definition to the facts
    of this case.  Second, the Commissioner has effectively read out of the Act the
    definition of Crown land that the legislature saw fit to include.  This
    interpretation was not one that was available as coming within a range of
    possible, acceptable interpretations of the Act.  The combined effect of these
    errors is to undercut and undermine the ability of the Crown to effectively
    protect lands it has properly and legitimately determined it may require for
    important public purposes, which ability is specifically provided within the
    Act and represents the intent of the legislature.

The
Dunsmuir
Analysis

[50]

At para. 47 of their reasons, the majority of the Supreme Court of
    Canada explains the reasonableness standard and how courts are to apply that
    standard when reviewing decisions of administrative tribunals:

Reasonableness is a
    deferential standard animated by the principle that underlies the development
    of the two previous standards of reasonableness: certain questions that come
    before administrative tribunals do not lend themselves to one specific,
    particular result.  Instead, they may give rise to a number of possible,
    reasonable conclusions.  Tribunals have a margin of appreciation within the
    range of acceptable and rational solutions. A court conducting a review for
    reasonableness inquires into the qualities that make a decision reasonable,
    referring both to the process of articulating the reasons and to outcomes.  In
    judicial review, reasonableness is concerned mostly with the existence of
    justification, transparency and intelligibility within the decision-making
    process.  But it is also concerned with whether the decision falls within a
    range of possible, acceptable outcomes which are defensible in respect of the
    facts and law.

[51]

To summarize the process, in order to assess whether a decision is
    reasonable, a court examines both the tribunals process of articulating the
    reasons for coming to its decision as well as the decision itself.  The
    reasoning process must make the decision intelligible and transparent and must
    justify the outcome.  Finally, the decision itself must fall within a range of
    possible, acceptable outcomes which are defensible on the facts and the law.

[52]

The Supreme Court demonstrated this process in
Dunsmuir
itself,
    finding that the interpretation that the adjudicator gave to the home statute
    was an unreasonable one, that his decision was therefore fatally flawed and, as
    such, it did not fall within the range of acceptable outcomes that are
    defensible in respect of the facts and the law:
Dunsmuir
at para. 74.



Relevant Provisions of the
    Act

[53]

In order to discuss the decision of the Commissioner in context, it is
    essential to set out the relevant provisions of the
Mining Act
:


1. (1) In this Act,


...


Crown land does not include,


(a) land, the surface rights, mining rights or the
        mining and surface rights of which are under lease or licence of occupation
        from the Crown,

(b) land in the actual use or occupation of the
        Crown, the Crown in right of Canada, or of a department of the Government of
        Canada or a ministry of the Government of Ontario,

(c) land the use of which is withdrawn or set apart
        or appropriated for a public purpose, or

(d) land held by a ministry of the Government of
        Ontario;


...

Minister means the Minister
      of Northern Development, Mines and Forestry, except in Part IV where
      Minister means the Minister of Natural Resources;


...


Purpose

2. The purpose of this Act is to encourage prospecting,
      staking and exploration for the development of mineral resources, in a manner
      consistent with the recognition and affirmation of existing Aboriginal and
      treaty rights in section 35 of the
Constitution Act, 1982
, including the
      duty to consult, and to minimize the impact of these activities on public
      health and safety and the environment.


...

PART II
MINING CLAIMS
LANDS OPEN


Where licensee may prospect for
      minerals

27. Except where otherwise
      provided, the holder of a prospectors licence may prospect for minerals and
      stake a mining claim on any,


(a) Crown lands, surveyed or unsurveyed;

(b) lands, the mines, minerals or mining rights
        whereof have been reserved by the Crown in the location, sale, patent or lease
        of such lands where they have been located, sold, patented or leased after the
        6th day of May, 1913,


not at the time,


(c) on record as a mining claim that has not lapsed
        or been abandoned, cancelled or forfeited; or

(d) withdrawn by any Act, order in council, or other
        competent authority from prospecting, location or sale, or declared by any such
        authority to be not open to prospecting, staking or sale as mining claims.


Claim may be staked

28. (1) A licensee may stake a
      mining claim on any land open for prospecting and, subject to the other
      provisions of this Act, may work such claim and transfer his or her interest
      therein to another person, but, where the surface rights in the land have been
      granted, sold, leased or located by the Crown, compensation must be made as
      provided by section 79.


...

LANDS NOT OPEN


Land not open for prospecting without consent

29. No mining claim shall be
      staked out or recorded upon any land transferred to or vested in the Ontario
      Northland Transportation Commission without the consent of the Commission nor,
      except with the consent of the Minister,


(a) upon any land reserved or set apart as a town
        site by the Crown;

(b) upon any land laid out into residential lots on
        a registered plan of subdivision; or

(c) upon any land forming the station grounds,
        switching grounds, yard or right of way of a railway.


Lands upon which claim may not
      be staked out

30. (1) No mining claim shall
      be staked out or recorded on any land,


(a) that, without reservation
        of the minerals, has been sold, located, leased or included in a licence of
        occupation; or

(b) for which an application
        brought in good faith is pending in the Ministry of Natural Resources under the
Public Lands Act
or any other Act, and in which the applicant may
        acquire the minerals that are included in the application; or

(c) where the surface rights
        have been subdivided, surveyed, sold or otherwise disposed of by the Ministry
        of Natural Resources for summer resort purposes, except where the Minister
        certifies in writing that in his or her opinion discovery of valuable mineral
        in place has been made; or

(d) where the Minister or the
        Minister of Transportation certifies that land is required for the development
        of water power or for a highway or for some other purpose in the public
        interest and the Minister is satisfied that a discovery of mineral in place has
        not been made thereon; or

(e) in an Indian reserve, except as provided by
The
        Indian Lands Act, 1924
; or

(f) while proceedings in respect thereto are pending
        before the Commissioner or a recorder or until those proceedings are finally
        determined; or

(g) until the proceeding has been finally
        determined, in the case of a proceeding that the Commissioner certifies is
        pending in a court in respect of the land.



...


Provincial parks

31. On and after the day
      subsection 16 (1) of the
Provincial Parks and Conservation Reserves Act,
        2006
is proclaimed in force, prospecting or the staking of mining claims or
      the development of mineral interests or the working of mines in provincial
      parks and conservation reserves is prohibited.

Lands used or occupied as
      gardens, etc.

32. (1)Although the mines or minerals therein have been
      reserved to the Crown, no person shall prospect for minerals or stake out a
      mining claim upon the part of a lot that is used as a garden, orchard,
      vineyard, nursery, plantation or pleasure ground, or upon which crops that may
      be damaged by such prospecting are growing, or on the part of a lot upon which
      is situated a spring, artificial reservoir, dam or waterworks, or a dwelling
      house, outhouse, manufactory, public building, church or cemetery, except with
      the consent of the owner, lessee, purchaser or locatee of the surface rights,
      or by order of the recorder or the Commissioner, and upon such terms as to the
      Commissioner seem just.


...


Withdrawal and reopening of
      lands

35. (1) The Minister may, by
      order signed by him or her,


(a) withdraw from prospecting, staking out, sale or lease,
        or any combination of them, any lands, mining rights or surface rights that are
        the property of the Crown; and

(b) reopen for prospecting,
        staking out, sale or lease, or any combination of them, any lands, mining
        rights or surface rights that have been withdrawn under this Act.



[54]

The basic structure of the Act regarding the ability to prospect and
    stake, as provided in these sections, is that a licensed prospector may
    prospect and stake mining claims only on lands open to such activity.  Two
    sources of such lands are provided for in the Act: Crown lands
[1]
(s. 27(a)) and lands the Crown has disposed of by sale or lease while reserving
    the mineral rights (s. 27(b))
[2]
, as long as there is not
    already an existing mining claim and the lands have not been withdrawn from
    prospecting by legislation, order in council or other proper authority, or so
    declared by such an authority.

[55]

In s. 29, certain lands are declared to be not open for prospecting
    except with the consent of the Commissioner in some cases or the Minister in
    others, while ss. 30-32 set out a list of lands where mining claims cannot be
    staked or recorded at all.  Finally, s. 35 allows the Minister (defined as the
    Minister of Northern Development, Mines and Forestry), by way of a signed
    order, to withdraw any lands that are the property of the Crown from
    prospecting and then to reopen them.

[56]

In the Act, the definition of Crown land is framed in the negative,
    and excludes four categories of land belonging to the Crown.  One of those is
    land in the actual use or occupation of the Crown.  If the lands in question
    are in the actual use or occupation of the Crown, they cannot be open lands
    available for prospecting under s. 27(a), and they do not need to be withdrawn
    or otherwise removed or excluded under ss. 29-35 of the Act.

[57]

With that legislative background, I turn to the factual background and
    the decision of the Commissioner.

Factual Background

[58]

The Ministry of Transportation is responsible
    for the construction and maintenance of provincial highways pursuant to the
Public
    Transportation and Highway Improvement Act
,

R.S.O. 1990, c.
    P.50.
Highway 69, a two-lane highway with a 90 km per hour
    speed limit, is a strategic link between Highway 401 and Highway 17 in Sudbury
    and is one of only two corridors connecting northern and southern Ontario.  In
    the 1990s, it was determined that reconstruction of Highway 69 was necessary
    due to major operational constraints arising from traffic congestion, delays
    and numerous collisions.

[59]

As a result, in 1995 the Ministry commenced the
    planning process for reconstruction of the highway.  The process involved
    planning studies for a new route for a four-lane highway and a process of
    consultation with the public in accordance with the
Environmental Assessment
    Act
,
R.S.O. 1990, c. E.18
.  That process involved
    several public information sessions, which were held, following notice to the
    public, in Sudbury and at the Wanup Pit Community Centre between 1995 and 1999
    and later in 2002. All of these sessions were advertised in local newspapers. 
    The plan for the route went through some changes but, once the planning was
    finalized, the Ministry undertook the work on the ground to identify the
    proposed route through Ministry-identified staking, drilling of bore holes and
    cutting swaths through the vegetation.  The Ministry representative described
    the work as openly visible and notorious to any persons in the area.

[60]

In April 2003, Mr. Bull of the respondent
    exploration company staked and recorded mining claims on the lands that had
    been identified by the Ministry on the ground and in the public meetings as the
    proposed new route for Highway 69.  After the respondents claims had been
    staked and recorded, on June 23, 2003, the lands identified as the route for
    the new four-lane Highway 69 were withdrawn from staking by an order under s.
    35 of the Act.

The
Commissioners
Decision

[61]

The Ministrys position was that the lands that it had identified on the
    ground for the new four-lane Highway 69 were in the actual use of the Crown
    during the planning process that is required in order to finally determine an
    appropriate and acceptable route for a highway.  Thus, pursuant to the
    definition of Crown land in s. 1 of the Act, in April 2003, the lands were
    not open lands for prospecting under s. 27(a) of the Act.

[62]

The Commissioner took a dual approach to the interpretation of the
    exclusion from Crown lands of land in the actual use or occupation of the
    Crown.

[63]

First, the Commissioner analyzed the adjective actual in the phrase
    actual use, and concluded that the concept comprised six characteristics. 
    The use must be: a) something that exists in the present, b) not imaginary or
    potential, c) recognizable as a use, d) describable, e) known to be a use and
    f) the use must have a recognizable Crown component.

[64]

Having elaborated on the meaning to be applied to the word actual, the
    Commissioner went on to find that, because the Ministry had not settled on the
    final route for Highway 69 and was not yet ready to withdraw lands from
    staking, the work it was doing was preliminary only.  Therefore, it was not an
    actual use within the meaning the Commissioner had ascribed to the term
    actual.  The Commissioner also reasoned that because the stakes placed by the
    Ministry could fall over or be removed, the swaths cut through the foliage
    could grow back, and the drilled boreholes could fill with water or vegetation,
    this could cause confusion to prospectors in terms of notice of actual use of
    the lands by the Crown.

[65]

The Commissioner refused to consider as part of the notice to the public
    of the actual use of the lands by the Crown, the lengthy process of public
    meetings and notices together with all of the background work conducted by the
    Ministry in order to comply with the legislated mandatory process for widening
    or rerouting a highway.  The Ministrys witness described this process in
    detail in his affidavit and testimony before the Commissioner. The process was
    lengthy, detailed, costly, and public.

[66]

Second, the Commissioner concluded that the lands open/lands not open
    arrangement found in ss. 27, 29, 30 and 35, sets out a comprehensive scheme
    for the removal of lands from staking, and found that the definition of Crown
    lands is essentially redundant (my word) or, at best, only there to cover any
    Crown lands that would otherwise fall through the cracks of the legislation. 
    In particular, the Commissioners analysis of the meaning and effect of the
    definition concluded as follows:

Given the comprehensive
    scheme set out in the Act, it may very well be that the definition for Crown
    land insofar as the phrase actual use of the Crown is concerned is primarily
    intended to catch and remove any Crown lands that might fall through the cracks
    of the legislation. A close look at the definition reveals that it is
    essentially reiterating what one would find in the Act.
It is extremely
    doubtful that it was intended to set up some new class of untouchable Crown
    land that was much different from what is set out in the various sections of
    the Act that deal with such land, especially section 30.
Indeed, the
    definition section appears to work in association with those sections of the
    Act that fall under the heading of Lands Not Open and section 30. [Emphasis
    added.]

[67]

The Commissioner posed the question whether the Act expected the
    applicant to formally withdraw lands from staking every time it shoots survey
    stakes for a highway. The answer was yes; it was reasonable to expect the
    applicant to follow the scheme of withdrawing lands from staking that is set
    out in the Act.  This would give notice to the staking world of the Crowns
    intentions where it could not rely on the existence of an actual use.

[68]

The Commissioner was not prepared to agree that the definition for
    Crown land should drive the operation of the Act insofar as it relates to the
    setting aside of lands for anticipated public works.  The Commissioner stated
    that the Acts preference was to require activities that might affect staking
    to be as public as possible, and reasoned that if the lands were in the actual
    use or occupation of the Crown, then the Act would have provided an
    administrative mechanism to let its own officials, like the Provincial Mining
    Recorder, know.

Analysis

1.         Is the reasoning
    transparent so that it justifies the outcome reached?

[69]

Applying the first
Dunsmuir
criterion for reasonableness, is the
    Commissioners process of reasoning logical and transparent and does it justify
    the outcome?  In my view, the reasons are insufficient to satisfy either of
    these tests.

Actual use analysis

[70]

The first area where the Commissioners analysis is not logical and does
    not justify its conclusion is in the application of the definition of actual
    use to the facts of the case.  The Commissioner defined actual as existing
    in the present, not imaginary or potential, recognizable as a use, describable,
    known to be a use, and with a recognizable Crown component.

[71]

Had the Commissioner tested the evidence against these criteria, it
    would have found that the Crowns activity in physically marking out a proposed
    new highway with stakes that were marked Hwy 69, cutting swaths through the
    brush and drilling bore holes to designate the proposed route of the new
    highway, in conjunction with the public meetings where investigation and
    environmental reports were presented, was an actual, recognizable, present and
    known use with a clear Crown component.

[72]

Instead, the Commissioner found that because the Ministry had not
    settled the alignment of the proposed highway, construction was therefore at a
    preliminary stage and the Ministry was not yet ready to withdraw the lands from
    staking.  For that reason, the work could not be described as an actual use. 
    In other words, the test the Commissioner applied was whether the use was the
final
use, which was not one of the six criteria it described when it elaborated on
    the meaning of actual use just one paragraph above.

[73]

In my view, although the Commissioners reasons discuss the definition
    of actual in the phrase actual use, their real focus is on the word use. 
    By finding that the use was not actual because it was not the final highway
    use, the Commissioner did not consider that the actual use that the Ministry
    was relying on was its use of the land over a period of several years to locate
    and plan the correct route for the extension of Highway 69.  The Ministry was
    actually using the land for that purpose.

[74]

My colleague Juriansz J.A. suggests that the Ministrys position, taken
    to its extreme, would mean that whenever Crown employees ... are present on
    land they are making use of it, and [i]f Crown employees were doing nothing
    more than simply travelling across the land, it could be said they were
    actually using the land to reach their destination.  To the contrary, such
    activity would not meet the Commissioners definition criteria for actual as
    it would be merely transitory and insignificant.

[75]

The Commissioner also referred to two cases decided by previous
    Commissioners,
Re Maher
(1964), M.C.C. 147 (Ont. M.C.), and
Re Juby
(1970), 5 M.C.C. 11 (Ont. M.C.).  The Commissioner first dismissed
Re Juby
as irrelevant because the decision in that case was that the lands could not be
    staked because they, and their attendant mining rights, were already licensed. 
    The issue in
Re Maher
was whether Mr. Maher could stake mineral claims
    on lands owned by Canada and used as an airport.  The Commissioner observed
    that in that case, the then-Commissioner asked how the lands were being used.
    Based on that observation the Commissioner stated:

Given the approach of at least one previous
    Commissioner in
Maher
and the tendency in both the
Maher
and
Juby
decisions to undertake a careful analysis of the state of the lands under
    scrutiny, it would be reasonable to expect the Applicant to follow the scheme
    set out in the Act for withdrawing lands from staking thereby giving notice to
    the staking world of its intentions in those instances where it cannot rely on
    the existence of an actual use.

[76]

The reference to these previous cases does not support the conclusion in
    the Commissioners reasons.  Neither decision in the result turned on the
    actual use issue, nor did either case discuss the withdrawal process for
    removing lands from staking.  The fact that when considering the actual use
    issue, the previous Commissioners seriously examined the actual use, is more
    consistent with giving effect to actual use than with reading it out of the
    Act.

[77]

The Divisional Court repeated the Commissioners error in applying the
    test for actual use. It concluded at paras. 39-40 that:

The Lands Not Open provisions of the
Act
provide clear illustrations of the types of substantive land uses that would be
    in accord with the definition. In other words, actual use connotes a land use
    that is substantive in nature. ... Where one draws the line between preliminary
    and substantive use is a question of fact which may not in all cases be easy to
    discern.

[78]

Again, the distinction between preliminary and substantive uses is
    neither rooted in the Act nor found in the test for actual use articulated by
    the Commissioner.

Crown land analysis

[79]

The Commissioners reasons are not transparent and do not justify the
    conclusion reached in another way, by their suggestion that no effect should be
    given to the exclusions from Crown land contained in the definition of that
    term in the Act.

[80]

The Commissioner stated that the scheme of the Act for determining which
    lands may be available for staking and which excluded from staking, is
    contained in ss. 28, 30, 31, 32 and 35.  The Commissioner reasoned that there
    was therefore no room for the definition of Crown land to place any further
    limits on the available lands, except for any Crown lands that might fall
    through the cracks of the legislation.

[81]

However, the Commissioner gives no example of any such cracks or of
    how the definition would operate in such a case.  Nor is it clear how this
    conclusion can live with one of the Commissioners justifications for rejecting
    the efficacy of the actual use concept as unworkable, which was on the basis
    that there is no mechanism for written notice of the Crowns actual use to be
    given to the Provincial Mining Recorder.  However, that same problem would
    exist in a situation where there was actual use and no other section of the Act
    to remove such lands from staking.

[82]

The driving principle behind the Commissioners decision to treat the
    exclusion of land in the actual use of the Crown as redundant in the staking
    scheme appears to be the fact that there is no provision for the Crown to give
    formal notice of its actual use to the Provincial Mining Recorder and,
    therefore, official notice to stakers.  However, the Act simply does not
    require such formal notice in order for the actual use of land to remove it
    from the definition of Crown land.  That is likely because, when land is actually
    being used, the public, including stakers, has actual notice of that use.

[83]

In this case, there was no real issue that the respondents stakers, who
    lived in the area, knew that the Crown was using the lands for planning the
    extension of Highway 69. The actual use relied on by the Crown consisted not
    only of the physical staking with stakes marked Hwy 69, the cutting of swaths
    through vegetation and the drilling of bore holes on the ground, but the public
    process that accompanied it, including public notices printed in local
    newspapers, reports and information sessions.

[84]

As the Commissioner stated, it was difficult to believe that all of the
    work done by and for the Ministry of Transportation, including the public
    meetings and all the investigative research and environmental reports costing
    many thousands of dollars, would not have been noticed by the respondents
    stakers who were in the aggregate business.  Those parties would, again as the
    Commissioner noted, be on the lookout for news of major road construction.

[85]

Finally, the Commissioner referred to s. 30(1)(d), which appears in the
    Act under the heading Lands upon which claim may not be staked out.  That
    section prohibits staking on land where the Minister or the Minister of
    Transportation certifies that land is required for the development of water
    power or for a highway or for some other purpose in the public interest and the
    Minister is satisfied that a discovery of mineral in place has not been made
    thereon.

[86]

In this case, by April 2003, when the mining claims were staked by the
    respondent, the Minister of Transportation was not ready to certify that the
    lands were required for Highway 69 until the entire highway route planning
    process had been completed.  Nevertheless, it was still very much in the public
    interest for the lands where proposed routes were being considered for public
    highway development, to be protected from prospectors until the final highway
    route was properly chosen.  The Ministry of Transportation clearly relied on
    the exclusion in the Crown land definition of land in the actual use of the
    Crown to protect its planned route from prospectors.  The Commissioners
    reasons failed to address how reading out the effect of the actual use
    exclusion from the definition of Crown land would affect this public interest
    and failed to take that important factor into account in holding that to
    protect such proposed routes, the Minister is required to use another process
    in the Act, the formal withdrawal of the lands from staking.

2.         Is the decision
    within the range of possible, acceptable outcomes?

[87]

The second
Dunsmuir
criterion for reasonableness is whether the
    decision of the Commissioner is within the range of possible, acceptable
    outcomes.  The Commissioners interpretation of the definition of Crown land
    was to give the definition virtually no effect on the staking process by
    rendering it essentially meaningless.  This was not within the range of
    available interpretations of a provision of the Act that was open to the
    Commissioner in interpreting and applying the Act.

[88]

One of the basic principles of statutory interpretation is that every
    word in a legislative text must be given its own meaning: Ruth Sullivan,
Statutory
    Interpretation
, 2d ed. (Toronto: Irwin Law, 2007), at p. 184.  In
Placer
    Dome Canada Ltd v. Ontario Minister of Finance
, [2006] 1 S.C.R. 715, at
    para. 45, the court stated:

Under the presumption against tautology, [e]very
    word in a statute is presumed to make sense and to have a specific role to play
    in advancing the legislative purpose:  see R. Sullivan,
Driedger on
    the Construction of Statutes
(3rd ed. 1994), at p. 159. To the extent that
    it is possible to do so, courts should avoid adopting interpretations that
    render any portion of a statute meaningless or redundant:
Hill v. William
    Hill (Park Lane) Ld.
, [1949] A.C. 530 (H.L.), at p. 546,
per
Viscount Simon.

[89]

The Supreme Court of Canada has stated on numerous occasions, the
    legislator does not speak in vain: see
Quebec (Attorney
    General) v. Carrières Ste. Thérèse Ltée
,
[
1985] 1 S.C.R. 831, at p. 838,
Bell
    ExpressVu Limited Partnership v. Rex
,
[
2002] 2 S.C.R. 559, at para. 37; and
Canada
    (Attorney General) v. JTI-Macdonald Corp.
,
[2007] 2
    S.C.R. 610,
at para. 87
.

[90]

The scheme of the staking provisions of the Act is that staking is
    initially allowed only on Crown land, as defined in the Act, or land where the
    Crown has reserved the mineral rights, subject to the legislated exceptions and
    exclusions that are then set out.  If land is not Crown land as defined, or
    land where the Crown has reserved mineral rights, then it is not initially
    available for staking and no exceptions are needed to exclude such lands from
    staking.  Where land is in the actual use of the Crown, it is defined as not
    included in Crown land.  In that case, there is no need for the relevant Crown
    official to take formal steps to withdraw such land from prospecting.

[91]

Given this clear scheme of the Act, the decision of the Commissioner
    that the legislature did not intend the Crown land definition to limit the
    scope of lands open to staking (except where something has fallen through the
    cracks of the legislation) beyond the exclusions in ss. 30-32, is not within
    the range of available interpretations open to the Commissioner.

Conclusion

[92]

In this case, based on the facts as found by the Commissioner and the
    legal definition of actual use as described in the Commissioners decision, the
    lands in question were in the actual use of the Minister of Transport as the
    identified route for the planning of the proposed new Highway 69 extension.  As
    a result, they were not Crown lands as defined and there was no need for the
    Minister to take any steps to withdraw those lands from prospecting.  The
    Commissioners decision that the proposed highway lands were not in the actual
    use of the Crown and that, in any event, the definition of Crown lands was not
    relevant to the analysis, was an unreasonable decision not available to the
    Commissioner.  It is therefore not a decision to which the court need accord
    deference.

[93]

I would therefore allow the appeal, set aside the decision of the
    Divisional Court and grant the application of the appellant.  In light of my
    conclusion, it is unnecessary to address the second issue on the appeal, the
    validity of the respondents staking certification.

K. Feldman J.A.

RELEASED:  May 13, 2011

RGJ





[1]
The s. 1 definition is of
    Crown land, while the phrase Crown lands is referred to in s. 27. They
    appear to be treated interchangeably.



[2]

These
    latter lands are excluded from the definition of Crown land by ss. (a) of the
    definition.


