Case information
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38881
Diorite Securities Limited, as Trustee of The Fern Trust v. Trevali Mining (New Brunswick) Ltd.
(Ontario) (Civil) (By Leave)
Docket
Judgments on applications for leave to appeal are rendered by the Court, but are not necessarily unanimous.
Parties
Please note that in the case of closed files, the “Status” column reflects the status of the parties at the time of the proceedings. For more information about the proceedings and about the dates when the file was open, please consult the docket of the case in question.
Main parties
v.
Counsel
Party: Diorite Securities Limited, as Trustee of The Fern Trust
Counsel
Eric Morgan
Daniel J. McDonald, Q.C.
Alicia Quesnel
Paul G. Chiswell
100 King Street West
1 First Canadian Place
Toronto, Ontario
M5X 1B8
Telephone: (416) 862-4941
FAX: (416) 862-6666
Email: acoleman@osler.com
Agent
Suite 1900
340 Albert Street
Ottawa, Ontario
K1R 7Y6
Telephone: (613) 787-1009
FAX: (613) 235-2867
Email: glangen@osler.com
Party: Trevali Mining (New Brunswick) Ltd.
Counsel
W. Michael G. Osbourne
Colin Pendrith
Kate Byers
2100 Scotia Plaza
40 King Street West
Toronto, Ontario
M5H 3C2
Telephone: (416) 860-2907 Ext: 6765
FAX: (416) 640-3108
Email: ljackson@casselsbrock.com
Agent
900 - 275 Slater Street
Ottawa, Ontario
K1P 5H9
Telephone: (613) 691-1224
FAX: (613) 691-1338
Email: mdillon@supremelawgroup.ca
Summary
Keywords
Property — Civil procedure — Appeals — Arbitration decision — Leave to appeal denied — Is an overriding royalty interest in land, issued from a working interest, an interest granted in a physical property with a physical location?
Summary
Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.
Trevali Mining is the operator of an underground base metal mine located near Bathurst, New Brunswick (Caribou Mine) under a mineral lease granted by the Province of New Brunswick. Diorite Securities (acting as trustee) owns a ten percent net profits interest in the Caribou Mine, granted to it by a former lessee in an agreement dated August 9, 1990 (the NPI Agreement). Ownership of the Caribou Mine changed hands a few times and Trevali became the owner in 2012. In 2016 Caribou Mine became commercially operational. According to the NPI Agreement, Trevali provided Diorite with a Statement of Net Profits for the third quarter of 2016 which included a ‘Loss Pool’ estimating losses that previous owners of Caribou Mine incurred or ought to have incurred and carried over since 1990. The Loss Pool reduced the net profits to zero. The disputed net profits went to arbitration. The arbitrator concluded, amongst other matters, that the expenses included in calculating net profits were not limited to the current owner. Diorite applied for leave to appeal the arbitrator’s decision. The Ontario Superior Court of Justice determined that Diorite failed to raise an issue of law as required by the Arbitration Act, 1991, SO 1991, c 17, and the application was dismissed.
Lower court rulings
Ontario Superior Court of Justice
2019 ONSC 4225, CV-19-00613797-00CL
Leave to appeal arbitral decision denied.
Memorandums of argument on application for leave to appeal
The memorandums of argument on an application for leave to appeal will be posted here 30 days after leave to appeal has been granted unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of the memorandum by filing out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.
If you have questions about a memorandum of argument or want to use a memorandum of argument, please contact the author of the memorandum of argument directly. Their name appears at the end of the memorandum of argument. The contact information for counsel is found in the “Counsel” tab of this page.
Downloadable PDFs
Not available
Related links
Factums on appeal
The factums of the appellant, the respondent and the intervener will be posted here at least 2 weeks before the hearing unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of factums by filling out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.
If you have questions about a factum or want permission to use a factum, please contact the author of the factum directly. Their contact information appears on the first page of each factum.
Downloadable PDFs
Not available
Related links
Docket
Judgments on applications for leave to appeal are rendered by the Court, but are not necessarily unanimous.
| Date | Proceeding | Filed By (if applicable) |
|---|---|---|
| 2020-03-13 | Close file on Leave | |
| 2020-03-06 | Copy of formal judgment sent to Registrar of the Court of Appeal and all parties | |
| 2020-03-06 | Judgment on leave sent to the parties | |
| 2020-03-05 |
Judgment of the Court on the application for leave to appeal, The application for leave to appeal from the judgment of the Ontario Superior Court of Justice, Number CV 19 00613797 00CL, 2019 ONSC 4225, dated August 29, 2019, is dismissed with costs. Dismissed, with costs |
|
| 2020-02-03 | All materials on application for leave submitted to the Judges, for consideration by the Court | |
| 2020-01-09 | Applicant's reply to respondent's argument, (Book Form), Completed on: 2020-01-09 | Diorite Securities Limited, as Trustee of The Fern Trust |
| 2019-12-19 | Certificate (on limitations to public access), (Letter Form) | Trevali Mining (New Brunswick) Ltd. |
| 2019-12-19 | Notice of name, (Letter Form) | Trevali Mining (New Brunswick) Ltd. |
| 2019-12-19 | Respondent's response on the application for leave to appeal, (Book Form), Completed on: 2019-12-19 | Trevali Mining (New Brunswick) Ltd. |
| 2019-11-20 | Letter acknowledging receipt of an incomplete application for leave to appeal, FILE OPENED 11/20/19 | |
| 2019-10-25 | Book of authorities, (Book Form), Completed on: 2019-10-25 | Diorite Securities Limited, as Trustee of The Fern Trust |
| 2019-10-25 | Certificate (on limitations to public access), (Letter Form) | Diorite Securities Limited, as Trustee of The Fern Trust |
| 2019-10-25 | Notice of name, (Letter Form) | Diorite Securities Limited, as Trustee of The Fern Trust |
| 2019-10-25 | Application for leave to appeal, (Book Form), Missing: SIGNED Trial Court reasons for judgment (rec' 11/22/19), Completed on: 2020-02-03 | Diorite Securities Limited, as Trustee of The Fern Trust |
Parties
Please note that in the case of closed files, the “Status” column reflects the status of the parties at the time of the proceedings. For more information about the proceedings and about the dates when the file was open, please consult the docket of the case in question.
Main parties
| Name | Role | Status |
|---|---|---|
| Diorite Securities Limited, as Trustee of The Fern Trust | Applicant | Active |
v.
| Name | Role | Status |
|---|---|---|
| Trevali Mining (New Brunswick) Ltd. | Respondent | Active |
Counsel
Party: Diorite Securities Limited, as Trustee of The Fern Trust
Counsel
Eric Morgan
Daniel J. McDonald, Q.C.
Alicia Quesnel
Paul G. Chiswell
100 King Street West
1 First Canadian Place
Toronto, Ontario
M5X 1B8
Telephone: (416) 862-4941
FAX: (416) 862-6666
Email: acoleman@osler.com
Agent
Suite 1900
340 Albert Street
Ottawa, Ontario
K1R 7Y6
Telephone: (613) 787-1009
FAX: (613) 235-2867
Email: glangen@osler.com
Party: Trevali Mining (New Brunswick) Ltd.
Counsel
W. Michael G. Osbourne
Colin Pendrith
Kate Byers
2100 Scotia Plaza
40 King Street West
Toronto, Ontario
M5H 3C2
Telephone: (416) 860-2907 Ext: 6765
FAX: (416) 640-3108
Email: ljackson@casselsbrock.com
Agent
900 - 275 Slater Street
Ottawa, Ontario
K1P 5H9
Telephone: (613) 691-1224
FAX: (613) 691-1338
Email: mdillon@supremelawgroup.ca
Summary
Keywords
Property — Civil procedure — Appeals — Arbitration decision — Leave to appeal denied — Is an overriding royalty interest in land, issued from a working interest, an interest granted in a physical property with a physical location?
Summary
Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.
Trevali Mining is the operator of an underground base metal mine located near Bathurst, New Brunswick (Caribou Mine) under a mineral lease granted by the Province of New Brunswick. Diorite Securities (acting as trustee) owns a ten percent net profits interest in the Caribou Mine, granted to it by a former lessee in an agreement dated August 9, 1990 (the NPI Agreement). Ownership of the Caribou Mine changed hands a few times and Trevali became the owner in 2012. In 2016 Caribou Mine became commercially operational. According to the NPI Agreement, Trevali provided Diorite with a Statement of Net Profits for the third quarter of 2016 which included a ‘Loss Pool’ estimating losses that previous owners of Caribou Mine incurred or ought to have incurred and carried over since 1990. The Loss Pool reduced the net profits to zero. The disputed net profits went to arbitration. The arbitrator concluded, amongst other matters, that the expenses included in calculating net profits were not limited to the current owner. Diorite applied for leave to appeal the arbitrator’s decision. The Ontario Superior Court of Justice determined that Diorite failed to raise an issue of law as required by the Arbitration Act, 1991, SO 1991, c 17, and the application was dismissed.
Lower court rulings
Ontario Superior Court of Justice
2019 ONSC 4225, CV-19-00613797-00CL
Leave to appeal arbitral decision denied.
Memorandums of argument on application for leave to appeal
The memorandums of argument on an application for leave to appeal will be posted here 30 days after leave to appeal has been granted unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of the memorandum by filing out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.
If you have questions about a memorandum of argument or want to use a memorandum of argument, please contact the author of the memorandum of argument directly. Their name appears at the end of the memorandum of argument. The contact information for counsel is found in the “Counsel” tab of this page.
Downloadable PDFs
Not available
Related links
Factums on appeal
The factums of the appellant, the respondent and the intervener will be posted here at least 2 weeks before the hearing unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of factums by filling out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.
If you have questions about a factum or want permission to use a factum, please contact the author of the factum directly. Their contact information appears on the first page of each factum.
Downloadable PDFs
Not available