Morrison v. East Kootenay Ruby Co. Ltd.

A.

MORRISON

AND

ANOT

ER

APELLANTS; (DEFENDANTS)

.....................

'*Oct. *Dec. 22. AND

EAST KOOTENAY RUBY CO. LTD.

(PLAINTIFF) .

.......................

ON APPEAL FROM THE APPEAL BRITISH COLUMBIA

RINFRET J.-This action was tried upon a special case stated by the parties.

The main point involved is whether the respondent, who holds by assignment a placer lease in the mining division of Atlin Lake, has forfeited its rights under the lease, so that the ground became open to re-location by the appellants.

CJ. and Rinfret, Lamont, Smith and Crocket JJ. (1) [19331 1 W.W.R. 460.

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The trial judge in the Supreme Court held that there was no forfeiture (1).

In the Court of Appeal, his decision stood affirmed on an equal division of the judges.

The lease was made on the 30th day of September, 1922, .

by the Gold Commissioner for the Atlin Lake Mining J Division as lessor. It provided that the lessee should pay 'a yearly rent in advance to the Mining Recorder; that he would

It was granted upon the express condition that the lessee would work and mine for the precious metals upon the premises demised and would expend two hundred and fifty dollars at least in each and every year during the continuance of the term, and further would

The respondent did not pay any rent, did not expend the sum of two hundred and fifty dollars, or any sum, in the development-work, and consequently did not satisfy the Mining Recorder that the development-work had been done, as required by the lease, did not obtain from the Mining Recorder any certificate of work and did not have any recorded.

As a result, on the 1st of October, 1930, the Gold Commissioner issued a certificate that the lessee was in default; and thereupon the Mining Recorder cancelled the record of the lease and noted the cancellation on the copy of the said lease on file. After the cancellation, the lessee made several attempts to pay the rent; but the Mining Recorder, the Gold Commissioner and the Minister of Mines in turn refused to accept it, on the ground that it had not been paid in time. The Minister of Mines has not formally declared the lease forfeited or approved any forfeiture thereof; but he has, at all times adopted the attitude that, by reason of the lessee's default, the lease automatically became forfeited and void, and the Minister had no power to act in the matter. The question for the opinion of the court is whether the lease has been forfeited under the circumstances.

Moamsonf The decision turns upon the interpretation of subsection E , 5 of section 110 of the Placer-mining Act (R.S.B.C., 1924, KoorsAr Co. c. 169), which reads as follows:

(5) If the development-work required by this section is not done in Rinfret J. any year, or if the lessee fails to obtain or record the certificate required in any year, or if the annual rental payable under the lease or any part thereof remains unpaid after the day on which it becomes payable, the lease shall be deemed forfeited and the demised premises shall be deemed vacant and abandoned without any re-entry, declaration or forfeiture, or other act on the part of the lessor, Gold Commissioner, or otherwise, any rule of law or equity to the contrary notwithstanding. Upon receipt of a certificate from the Gold Commissioner that the lessee is in default in respect of the doing or recording of development-work in respect of the lease, or that the annual rental in respect of the lease is in default, the Mining Recorder, in whose office a copy of the lease is filed shall cancel the record of the lease and note the cancellation on the copy of the lease on file.

It is clear that the parties intended the lease to be entered into under the authority of that section. The material provisions of the section are reproduced verbatim in the lease of which they are made an express condition. It is to be noted that, by force of the statute, in the event of certain specified defaults, " the lease shall be deemed forfeited," " the demised premises shall be deemed vacant and abandoned," " without any re-entry," without " any declaration of forfeiture," without any " other act on the part of the lessor

* *

* or otherwise," " any rule of law or equity to the contrary notwithstanding."

In our view, the enactment so worded provides for an absolute forfeiture operating automatically. Immediately upon the happening of any of the specified breaches, the lease is ipso facto void, without any necessity for a declaration or for any further act to be done by anybody. The words used by the legislature show, we think, the clear intention to exclude the rule laid down in Davenport v. The Queen (1).

The lessee is not left without means of relief or of reinstatement, but the manner in which relief may be granted or reinstatement may be obtained is specifically dealt with in other sections of the statute. It is not apparent that power is given to grant it otherwise. Suffice it to say that, (1) (1877) 3 App. Cas. 115, at 129.

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in the premises, the lessee has not brought himself within the conditions essentially required to obtain reinstatement EV and we are not dealing with an application for relief. In this case, we may go further and we may say that there were, on behalf of the lessor, unequivocal acts evinj. cing his intention to avoid the lease (Roberts v. Davey) The Gold Commissioner (who was actually the lessor) issued his certificate that the lessee was in default. The Mining Recorder thereupon cancelled the record and noted the cancellation on the copy of the lease on file. The Mining Recorder promptly returned to the lessee the money remitted for rental, as not having been paid on time. From then on, the lessee was explicitly notified of the stand taken by the lessor. Later, the money for rental was tendered to the Minister of Mines, who received it subject to the acceptance of the Gold Commissioner. The Gold Commissioner ruled that the same was not paid in time and that the lease had, by reason of the lessee's delay, lapsed and become void. The tendered money was thereupon returned to the lessee. It is conceded that the Minister Should it be held that the respondent's default did not absolutely determine the lease, and only made it voidable at the election of the landlord, yet we would think that by the acts just enumerated the landlord has unequivocally indicated his intention and he has exercised his option. It remains to consider the effect of subsection 1 of section 114 of the Placer-mining Act reading as follows: It was argued that this is a case to which this subsection applies and, if so, that the Minister of Mines has not given his approval.

We are unable to accede to the argument.

Subsection 1 of section 114 provides generally for all It enacts that, in all such cases, there must be a declaration of forfeiture, " subject to the approval of the Minister of Mines."

Only after such declaration, shall the mining . ground " be open for location by any free miner."

Subsection 5 of section 110 is restricted to forfeitures arising out of the particular breaches of covenant therein specified. It deals explicitly with the question of declaration and it says that, in the cases specifically mentioned, no declaration of forfeiture shall be required. It operates therefore as an exception.

And it must be so or else-if subsection 1 of section 114 was held to be an absolute rule applying in every case-subsection 5 of section 110 would never come into operation. We do not find any conflict between the two sections. Section 110 imparts a statutory declaration of forfeiture in certain well defined cases of breach. Section 114 covers all other cases of non-performance or non-observance.

In the latter cases, there must be " a declaration by the Gold Commissioner, subject to the approval of the Minister of Mines."

And the enactment says that wherever a declaration of forfeiture is required, that declaration must be " in accordance with this section."

But, in the particular cases provided for by subsection 5 of section 110, the necessity for -a declaration is excluded.

It says there is to be a forfeiture without declaration.

It may be further pointed out that, in the terms of the statute, the provisions of section 110 apply only to " leases issued on or after the first day of July, 1920, pursuant to" the Placer-mining Act. (R.S.B.C., 1924, c. 169.)