PROCEDURAL GUIDELINES FOR

PROCEEDINGS UNDER THE MINING ACT

Office of the Mining and Lands Commissioner

Box 330 , 24 th Floor, 700 Bay Street

Toronto , Ontario M5G 1Z6

Re-Issued February, 1997

TABLE OF CONTENTS

INTRODUCTION

DEFINITIONS . . . . . . . . . 1

PART I - GENERAL . . . . . . . 2

PART II - FILING, SERVING AND PROVIDING DOCUMENTS . 3

PART III - TELEPHONE CONFERENCING . . . . 4

PART IV - PRE-HEARING CONFERENCES . . . . 5

PART V - SETTLEMENT DISCUSSIONS . . . . 7

PART VI - PREPARATION OF DOCUMENTS FOR THE HEARING 8

PART VII - INTERROGATORIES AND DISCOVERIES . . 8

PART VIII - DISCLOSURE OF EVIDENCE . . . . 9

PART IX - POWERS OF SUBPOENA (SUMMONS) . . . 9

PART X - MOTIONS . . . . . . . 10

PART XI - HEARING PROCEDURES . . . . . 10

PART XII - ORDER OF PRESENTATION AND

EXAMINATION OF WITNESSES . . . . 12

PART XIII - USE OF WITNESS STATEMENTS . . . . 12

PART XIV - PRESENTATION OF EXPERT WITNESSES . . 14

PART XV - MEETING OF EXPERT WITNESSES . . . 14

PART XVI - TAKING A VIEW . . . . . . 15

PART XVII - POSTPONEMENTS AND ADJOURNMENTS . . 15

PART XVIII - FAILURE TO APPEAR AFTER NOTICE . . . 15

PART XIX - COSTS . . . . . . . 16

PART XX - FAILURE TO COMPLY . . . . . 16

PART XXI - REVIEW OF A DECISION . . . . . 16

Re-Issued February, 1997

INTRODUCTION

These guidelines are intended to facilitate and enhance the participation of all parties to a hearing before the Mining and Lands Commissioner under the Mining Act, through the sharing of information, where possible, and through the establishment and maintenance of lines of communication between all those involved in the hearing process. All participants should benefit by this attempt to increase the efficiency and timeliness of the proceedings through the avoidance of unnecessary delay.

While these guidelines are not enforceable by law, the user should be aware of the fact that under Section 116 of the Mining Act the Mining and Lands Commissioner is empowered to make orders regarding the procedural aspect of any matter before him or her. Such orders have the force of law.

Under the Mining Act, the Mining and Lands Commissioner may be called upon to determine claims, questions or disputes in respect of a matter or thing concerning any right, privilege or interest conferred by or under that Act. In practical terms, this means that the Mining and Lands Commissioner hears, among other things, disputes between claim holders, appeals from the decisions of mining recorders, references from mining recorders, directions and references from the Minister of Northern Development and Mines, appeals from the requirements, orders, and declarations of the Director of Mine Rehabilitation and applications for vesting orders.

DEFINITIONS

While general reference should be made to the applicable legislation, including the Mining Act, the Ministry of Natural Resources Act, and the Interpretation Act, the following definitions will also apply to these guidelines:

• “Commissioner” , means the Mining and Lands Commissioner appointed by the Lieutenant Governor in Council under the Ministry of Natural Resources Act, and for purposes of these Guidelines, include a Deputy Mining and Lands Commissioner or a tribunal of three within the meaning of Subsection 6(4)of the Act.

• “Document” , in addition to documentation on paper, such as letters, maps, charts, graphs, plans, surveys and models, includes videotapes, films, photographs, sound recordings and other information recorded or stored by means of any device.

• “Interrogatory”, means a question posed in writing by one party to another seeking facts or information relevant to the hearing or seeking clarification or explanation of issues or of information and material provided by the party to whom the interrogatory is addressed and may include questions between expert witnesses or technical matters.

• “Proceeding” , means any matter coming before the Commissioner under the Mining Act.

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PART 1 – GENERAL

1. Under Part VI of the Mining Act, the Commissioner is empowered to make decisions and determine procedural matters. In fact, the Mining and Lands Commissioner is known as a “lower Court of appeal or review” and makes decisions on his or her own responsibility and authority and in no sense on that of the Ministers of Natural Resources or Northern Development and Mines.

The Commissioner also functions as an administrative tribunal under Part VII of the Mining Act when hearing appeals from the Director of Mine Rehabilitation actions under the Mining Act. Unlike decisions under other parts of the Mining Act, these decisions of the Commissioner may also be appealed to the Minister of Northern Development and Mines on any matter other than a question of law, which is appealed to Divisional Court .

A fair hearing is assured both by the application of the Mining Act and the Statutory Powers Procedure Act (SPPA), which sets a minimum “fairness” standard for tribunals. At the very least, participants have a right to know the issues, to be heard, to receive notice of certain events related to the hearing, and to question witnesses.

Where a conflict arises between these guidelines and the Mining Act, or the SPPA, or any other Act of the Legislature and its regulations, then those Acts and their regulations govern.

The Commissioner may waive or vary any of these Guidelines at any time.

It is sufficient if there is substantial compliance with a form or notice required by or under these Guidelines.

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Where any matter arises during the course of any hearing that is not covered by these guidelines, the Commissioner may do whatever is necessary and permitted by law to enable him or her to effectively and completely adjudicate on the matter before him or her. This includes dispensing with all, or part of these guidelines, issuing overriding orders, and using the powers given under the Mining Act.

PART II - FILING, SERVING AND PROVIDING DOCUMENTS

2. (1) These guidelines do not effect serving or filing requirements of the Mining Act or its regulations, including those requirements stated in Section 112 of the Act.

• Once a proceeding has been initiated in any manner contemplated by the Mining Act, the Commissioner may issue an order requiring the parties to provide to the tribunal and to each other, copies of all documentation, evidence and things to be relied on in the hearing, including copies of relevant mining claim abstracts, applications to record, claim maps, or closure plans, as the case may be. The Commissioner may also require the parties to provide factums, consisting of a concise statement, without argument, of the facts and law relied on by them.

• The order will advise the parties of the times for filing and serving.

• Service may be made by personal delivery, or by registered mail, in which case service is deemed made on the fifth day after the date of mailing.

• Summonses and notices of the Commissioner are not affected by these guidelines.

• Service may also be made by facsimile (fax), in which case service is deemed made upon receipt of written confirmation that the document was received or that the party being served had knowledge of the transmission.

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• When filing, serving or providing documents by facsimile (fax), parties are to include a cover page containing the following information:

• the sender’s name, address, telephone number and facsimile number if available;
• the name of the person to be served;
• the date and time of transmission;
• the total number of pages transmitted including the cover page;
• the telephone number from which the document is transmitted;
• the name and telephone number of a person to contact in the event that a problem arises with the transmission.

• Where a party is represented by a lawyer, service, filing or providing documents or notices under these guidelines may be made on the lawyer.

• The Commissioner may order or allow such substituted service as he or she considers proper, including publication in any specified newspaper(s).

• Proof of service of any document shall be by affidavit setting out how and when service was effect. The affidavit is to be filed with the Commissioner. A party’s or his or her lawyer’s written admission or acceptance of service is sufficient proof of service and need not be verified by affidavit (sample affidavit is found at the end of these Guidelines).

• The Commissioner may order the extension of a serving date or may deem when service is effect as required.

PART III – TELEPHONE CONFERENCING

3. (1) The Commissioner may require, or the parties may request, that pre-hearing conferences, motions, or hearings be conducted by telephone conference call. Such a procedure will be considered where the Commissioner is satisfied, and the parties agree, that no one will be prejudiced in the ability to present their case.

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• A hearing conducted by telephone conference call is a public hearing and as such, parties are not limited in the number of persons attending or “listening in”. In addition to proper telephone etiquette, all the proprieties of a regular hearing will be followed. Where in the opinion of the Commissioner a hearing which started out as a telephone conference call would be more appropriately carried out with all the parties in personal attendance, then the Commissioner will stop the hearing and set a date for either a new hearing, or a resumption of the same hearing, in the regular fashion. Every effort will be made to continue where the telephone conference call left off, as long as no party is prejudiced by this change.

PART IV – PRE-HEARING CONFERENCE

Pre-hearing conferences can be an effective method of setting the groundwork for a hearing. As well as providing the parties with an opportunity to meet each other in a non-adversarial setting if they have not already done so, they also represent an efficient method of dealing with the preliminary issues that precede all hearings.

• (1) In any proceeding, the Commissioner may, on his or her own initiative, or on the motion of any party, may direct the parties, to hold one or more pre-hearing conferences, for the purpose of:

• identifying the parties;
• clarifying an application or reply;
• deciding the procedure to be adopted in the proceeding, including the possibility of the parties consenting to having the Commissioner render a decision based solely on written submissions;
• defining, formulating or simplifying issues;

(e)Disclosing evidence, including

• identifying documents the parties intend to rely on;

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• exchanging or arranging for the exchange of documents among parties;

• listing all documentation in one party’s possession to be disclosed to the other party;

(f) identifying witnesses, the nature of their evidence, and their order or presentation;

(g) considering the possibility of filing witness statements and establishing a procedure for their service and filing if need;

(h) discussing the compilation and circulation of an exhibit list and agreed statement of facts;

• setting the date and place for commencement of the hearing;

• estimating the length of the hearing;

• deciding any other matters that may aid in the simplification or just disposition of the proceeding;

• considering the possibility of settlement of any or all of the issues in the proceeding;

(m) for any other purpose that the Mining and Lands Commissioner deems appropriate.

• The Commissioner may conduct a pre-hearing conference with the consent of all the parties to the hearing.

• Where the parties reach agreement on any of the matters discussed at a pre-hearing conference, then such agreement may be formalized by way of an order of the Commissioner.

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• Where a pre-hearing conference results in prolonged or inconclusive meetings, the Commissioner may order the parties to move directly to a hearing, taking into account the parties’ ability to prepare themselves.

(5) The Commissioner may assign a member of his or her staff to conduct a pre-hearing conference.

(6) The Commissioner may require that a pre-hearing conference be recorded by a court reporter.

PART V – SETTLEMENT DISCUSSIONS

• (1) The Commissioner may suggest, or a party may request that settlement discussions take place at any stage of the Proceeding.

(2) The Commissioner will not be present at settlement discussions, but may, with the consent of the parties, assign a member of his or her staff to be present at such discussions.

• Settlement discussions will not be recorded.
• Parties reaching a settlement may present a draft order to the Commissioner for endorsement.

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PART VI – PREPARATION OF DOCUMENTS FOR THE HEARING

6. (1) Parties are encouraged to prepare submissions such as photographs by providing certain information prior to the hearing including the name of the photographer, the date and time of the photograph, the location (and name if applicable) of the site and/or object depicted, and the direction or view from which the photograph was taken.

(2) The Registrar will coordinate the compiling of an exhibit list and/or agreed statement of facts.

PART VII – INTERROGATORIES AND DISCOVERIES

7.(1) The Commissioner may order on his or her own initiative, or on the application of a party, that interrogatories be exchanged.

• Parties may also request the examination of another party before an official examiner (discoveries) appointed under the Courts of Justice Act.
• Where is becomes necessary to establish time limits for exchanging such questions or for conducting discoveries, then these, and any other related issue, will be determined by the Commissioner.

(4) Parties are expected to answer questions (whether written or oral) as fully as possible and to give a reasonable explanation for their not having done so.

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PART VIII – DISCLOSURE OF EVIDENCE , ETC.

8. (1) Documents produced or released in accordance with these guidelines are intended to assist in case preparation and are for the sole use of the recipients unless and until they have been received in evidence at the hearing, and in the case of interrogatories, witness statements, or discoveries, the relevant witness has testified.

• While parties will be expected to provide each other and the Commissioner with copies of all documents they intend to rely on at the hearing, the existence of any document relating to any matter in issue at the hearing can be the subject of a request for disclosure.
• It follows that any person who refers to a document in any of the notices, affidavits, witness statements, answers to interrogatories, or reports produced for the hearing can expect to be asked to produce that document for inspection by any party.
• The person producing the document has ten (10) days to answer such a request.
• The party making the request is permitted to make copies at their own expense.

PART IX – POWERS OF SUBPOENA (SUMMONS)

9. (1) The Commissioner may on his or her own initiative, or upon the request of any party, issue a summons to any person to give evidence.

• Parties requesting the issuance of a summons must notify the Registrar.

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(3) Any person summoned in this way will be paid a fee and attendance money in accordance with the Ontario Court (General Division) scale.

(4) It is expected that the parties will adhere to the requirements of the Statutory Powers Procedure Act as it relates to summonses.

PART X – MOTIONS

10. (1) Any party wishing to make a motion shall notify the Registrar in order to obtain a date and shall serve all affected parties with notice of same at least ten (10) business days before the motion date.

(2) Parties involved in the motion shall provide a copy of all affidavits and other material necessary for the hearing of the motion to each other and to the Commissioner prior to the hearing date.

PART XI – HEARING PROCEDURES

11. (1) Where the parties consent to waive an oral hearing, the Commissioner may render a decision based solely on the presentation of written submissions.

• The Commissioner may receive and act upon any facts agreed upon by the parties without proof of evidence.

• The leading of witnesses in all matters of fact not in dispute is permitted.

• Witnesses who appear personally before the Commissioner shall be examined orally under oath or after affirming that their evidence will be true. For the purpose of telephone conference call, witnesses will be asked to affirm that their evidence will be true.

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• Wherever possible, affidavits, declarations, agreed statements of fact, etc. will be accepted as replacing oral testimony.

• Having the other parties agree to accept these documents on this basis in no way obviates the need on the part of the submitting party to prove their relevance, etc.

* NOTE: Highly technical evidence may not lend itself to this approach.

• Unless the Commissioner orders otherwise, hearings shall be conducted in English.

• Parties having special language or physical needs should raise them before the hearing is commenced or as soon thereafter as possible. Every effort will be made to accommodate those needs.

• Motions and hearings will be recorded.

• All copies of transcripts and all electronic records ordered by parties to the proceedings or other persons shall be paid for by those parties or other persons.

* NOTE: Under section 125 of the Mining Act, copies are furnished upon the same terms as in the Ontario Court (General Division)

• Any party tendering a document as evidence must provide two copies for the Commissioner and one for each party.

• Where possible, copies of reports, witness statements, and other documentary material should be double-sided. Pages should be numbered consecutively, sections should be tabbed and pages within sections should be numbered consecutively.

* NOTE: Any party experiencing financial difficulties regarding photocopying expenses should contact the Registrar.

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• Lengthy reports should include a concise summary, as well as a glossary of technical terms.

• The reports and evidence of expert witness should be expressed, to the extent possible, in clear and non-specialized language.

PART XII – ORDER OF PRESENTATION AND EXAMINATION OF WITNESSES

12. (1) With the exception of a hearing under Part VII of the Mining Act, evidence shall be presented first by the party commencing the action, followed by the responding party or parties, unless the Commissioner and the parties agree otherwise.

(2) Evidence at a hearing under Part VII of the Mining Act, shall be presented as the Commissioner may direct and, in the absence of any such direction, in the following order:

• the appellant proponent;

• the Director;

• any parties specified by the Commissioner under the Mining Act;

• the proponent, in reply.

PART XIII – USE OF WITNESS STATEMENTS

13. (1) The Commissioner may order that witness statements be exchanged among the parties.

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(2) Witness statements shall contain the following:

(a) full name and business address of the witness (and qualifications or curriculum vitae, if appropriate);

• a statement of whether the witness has an interest in the application and, if so, the nature of the interest;
• a statement of whether the evidence will be factual evidence or opinion evidence or both;
• a statement of whether the witness has some special skill which he or she possesses by reason of experience or study which qualifies him or her to give evidence;
• a full but concise statement of the evidence;
• reference to and identification of proposed exhibits which are part of the witness’ evidence, including: supporting documents, plans, reports, technical memoranda, etc. (a separate sheet shall be attached to the statement listing the exhibits);
• an acknowledgement that the witness intends to appear before the Commissioner if requested by the party submitting his or her witness statement and be subject to examination and cross-examination; and
• the date of the statement.

• Where a formal report has been prepared by the witness for purposes of the hearing, then that report may be used as a witness statement, provided that the above information appears in the body of the report, or is appended to it.

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PART XIV – PRESENTATION OF EXPERT WITNESSES

14. (1) Witnesses having technical or special knowledge shall provide three copies of a written curriculum vitae describing their qualifications and experience.

(2) Where the curriculum vitae demonstrates a degree of the special or technical knowledge possessed by the witness, then qualifying the witness will not normally be required at the hearing.

(3) These Guidelines do not preclude a party from challenging the qualifications of a witness.

• Expert witnesses possessing expertise in more than one area may be asked to specify which area is being relied upon for their evidence.

PART XV – MEETING OF EXPERT WITNESSES

(1) The parties will be expected to consider arranging a meeting between their expert witnesses in order to determine and discuss common facts and issues.

(2) Where parties who have not considered this procedure, or have considered it, decided against it, then they will be required to give reasons.

(3) Notwithstanding the above, the Commissioner may at any time either before or during the hearing, require the parties to arrange a meeting of experts if it becomes apparent that such a meeting can help to identify common facts and issues.

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(4) Meetings between experts are to be held without prejudice. Statements made during these meetings (other than the agreement mentioned below), shall not be used or referred to during the hearing except with the agreement of all parties.

(5) Where meetings between experts result in agreement on facts and/or issues, then the parties will be encouraged to set such agreement down in written form.

PART XVI – TAKING A VIEW

16. Where the Commissioner anticipates that a view and/or examination of the subject property would be of value, then the parties will be so notified in order that they may make submissions regarding procedural aspects.

PART XVII – POSTPONEMENTS AND ADJOURNMENTS

17. (1) Where the Commissioner has set a date for a hearing, pre-hearing conference, or motion, with the agreement of all parties or their counsel, then they will be expected to attend on that date.

(2) Adjournments may be granted by the Commissioner upon conditions(s) if necessary.

PART XVIII – FAILURE TO APPEAR AFTER NOTICE

• Where notice of a motion, pre-hearing conference, or hearing has been given in accordance with these guidelines and statutory requirements and a party does not attend the hearing of the motion, pre-hearing conference or hearing, then the Commissioner may proceed in that party’s absence and that party is not entitled to any further notice of that portion of the proceedings unless the Commissioner otherwise directs.

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PART XIX – COSTS

19. (1) Under the Mining Act, the Commissioner may award costs, either on his or her own initiative, or on the request of a party.

(2) For the purposes of these guidelines, costs associated with the administrative procedures of the Commissioner’s office (cost of reporter attendance, telephone conference calls), will be borne by the Commissioner’s office. Parties are responsible for paying for the cost of ordering transcripts for their own use.

PART XX – FAILURE TO COMPLY

20. Costs may be considered where it becomes apparent that a party is being uncooperative in terms of complying with the spirit and intent of the applicable legislation, or these guidelines.

PART XXI – REVIEW OF A DECISION

A request to review a decision is granted only in the most extraordinary circumstances. A request to review is not an opportunity to re-argue a case nor to rebut findings made in the decision. The Commissioner is not required to rehear a matter if (s)he is satisfied the outcome of the decision is not likely to change.

The provisions governing the review of a decision will not apply to those matters which are not limited in time to appeal to Divisional Court or Judicial Review, as provided in sections 134 and 135.

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• The Commissioner may at any time, and without prior notice to the parties, correct a typographical error, an error of calculation, a misstatement, a technical error, ambiguity or failure to pronounce on a matter that should have been provided for in the decision.

• The Commissioner may review a final decision or order on his/her own initiative or at the request of a party. Non-parties cannot request a review of a decision.

Contents of a Review Request

• A request for a review shall be writing and signed by the requester and shall:

• state the reasons for requesting the review;
• state the desired outcome;
• attach any documents which support the request;
• state the full name, address, telephone number and fax number (if any) of the requester;
• if the requester has a representative, state the full name, address, telephone number and fax number (if any) of the requester’s representative;
• attach a copy of the original decision;
• attach an affidavit from the requester setting out the facts relied on in support of the request;
• request an order suspending the order or decision pending determination of the review and explain why a suspension is needed;
• be served on all parties to the original hearing;
• attach an affidavit of service.

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Threshold Factor for Review

• In deciding whether it is advisable to review all or part of a decision, the Commissioner may consider any relevant circumstances, including;

• whether there is significant new evidence which was not available at the time of the original proceeding;
• whether the party relying on the new evidence acted promptly after learning of the new evidence;
• whether the new evidence, if believed, would have affected the final result;
• the extent to which any other person has relied upon or acted on the decision;
• whether the public interest in finality of decision is outweighed by the prejudice to the requester;
• whether the Commissioner made a material error of law or fact such that a different decision would have been reached.

Time Limits

• A request to review shall be filed within 90 days of the date of the decision.

• A request made after this date may be considered where the Commissioner is satisfied that there is good reason for the delay.

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Multiple Requests for a Review

• The Commissioner will consider only one request for review of a decision by a party.

Commissioner’s Discretion

• The Commissioner will consider the request for review and decide whether it is advisable to review the decision.

• The Commissioner may refuse a request for review without seeking submissions from any other party.

Review Procedures

• Where the Commissioner decides to consider a request for review of a decision, then all parties will be notified, provided with copies of applicable materials, and allowed an opportunity to make submissions. A 30 day time limit will be imposed on the actions of all parties in the process.

• The Commissioner may make such procedural orders as are considered necessary and appropriate.

• The Commissioner may consider the record from the original hearing, in addition to the materials filed by the requester and other parties.

• Where the request for review is granted, it may be granted in whole or in part, and the decision may contain any procedural directions the Commissioner considers appropriate for the review on the merits. The procedural directions are binding on the Commissioner on the review on the merits unless otherwise ordered.

• Unless otherwise ordered, a review on the merits shall be conducted electronically.

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THE MINING AND LANDS COMMISSIONER

LE COMMISSAIRE AUX MINES ET AUX TERRES

Application/Appeal No. ___________, 200__

_____________________________________ACT

IN THE MATTER OF:

BETWEEN:

and

AFFIDAVIT OF SERVICE

I, ___________________________________ of the ________________________________ of

(Name) (City, Town, etc.)

_________________________in the ________________________________ of ___________________________

(County, Regional Municipality , etc.)

MAKE OATH AND SAY:

• I served the ____________________________________with ______________________

(Applicant/Appellant/Respondent/Disputant) (List Documents)

____________________________________________________________________________________________________________

by sending a copy by prepaid first class mail/registered mail/courier (choose one)

on_____________________, 200___ to _______________________________________

(Date) (Name)

____________________________________________________________________________________________________________

( Address)

SWORN before me at the of )

, in the of )

this day of ) __________________________________________

, 200 . (Signature of Deponent)

A COMMISSIONER for Taking Affidiavits, etc.