Judgment of the Court
J.:-This is an appeal from a judgment of Ritchie J. (1) delivered in the Exchequer Court, whereby the petition of right filed by the appellants was dismissed. The facts are reviewed at length in the reasons for judgment delivered at the trial and it is unnecessary to restate them.
The appellants' respective claims are based on the agreements of sale entered into by the soldier settlers with the Soldier Settlement Board in the years 1919, 1920 and 1922 and, alternatively, upon agreements claimed to have been made by the suppliants in the year 1949 with the "Directors of Soldier Settlement" for the sale to them of the mineral rights. These agreements, it is alleged in the petition, were made pursuant to an order in council, the date and terms of which, it is said, were unknown to them.
The agreements for the purchase of the various parcels of land entered into by the appellants Reese, Renton, John Lewis, Harper, Larsen, Roderick Lewis, Peter MacDonald, Nicholas, Bailey, Kerr and Stoutenberg, and by Andrew Liddle and Daniel Beaton, both of whom died prior to the commencement of the action, were all made after the date upon which the Soldier Settlement Act, 1917 (Can.), c. 21, had been repealed by the Soldier Settlement Act, 1919, (Can.), 71, which came into force on July 7 of that year. Notwithstanding this, the agreements, other than those made with Stoutenberg and John Lewis, contained, as para. 13, the following:
- Order in Council P.C. 299 was made on February 11, 1919, while the 1917 Act was in force, and, so far as it might be considered relevant to any issue in the action, authorized the Board to acquire suitable lands for settlement, either from the Government or from individuals corporations, and to sell such lands to soldier settlers terms defined with some particularity.
The Act of 1917 made no reference to the sale of lands or the mineral rights in lands. The 1919 Act, however, dealt with the matter of mineral rights in precise terms, s. 57 reading:
Mr. Justice Ritchie has found that the inclusion of para. 13 was simply a clerical mistake occasioned by the fact that use was made of a form of agreement which had, by reason of the repeal of the 1917 Act, become obsolete. I find nothing in the order in council or in the 1917 Act which conflicts with s. 57 of the Act of 1919 and I agree with the learned trial judge that it applies to the agreements in question which were made with the individual settlers after the Act came into force. In the cases of Stoutenberg and John Lewis, whose agreements were executed respectively on May 29, 1920, and April 24, 1922, para. 13 was not included but, by a paragraph numbered 14, it was stated that the agreement was given and received under the provisions of the Soldier Settlement Act, 1919. While this finding is fatal to the claims of all of the appellants in so far as they are based upon the original agreements made with the Board, in my opinion a further complete answer to the claims other than those of William Kerr and of the estate of Daniel Beaton is that, some years prior to the institution of the action, transfers of the various parcels of land made under the provisions of the Land Titles Act, now R.S.A. 1955, 170, were given by the Soldier Settlement Board to the settlers and were accepted and registered and in each of them the mineral rights were expressly reserved.
The rights of the settlers under the agreements, under these circumstances, in my opinion, merged in the transfers. In Leggott v. Barrett (1), James
. L.J. said, in part:
This statement of the law was approved by the Judicial
Committee in Knight Sugar Company Limited v. Alberta
Railway and Irrigation Company (2).
In the case of Kerr, who received but did not register his transfer, and of. the Beaton estate, where no transfer had been given up to the time of the commencement of the action, no question of merger arises. However, in my opinion s. 57 applies to the agreements in both of these cases.
As to the alternative claim-the reference in the petition to the "Directors" was apparently intended to refer to an official described as the Director of Soldier Settlement in the form of application hereinafter mentioned.
A document described as a "News Release" made by the Department of Veterans Affairs early in January 1949, was put in evidence, in which the Minister of Veterans
Affairs and the Minister of Mines and Resources were quoted as having announced that veterans settled on the land under "the Soldier Settlement Act of World War I'"
who had completed or did complete their contracts were to be granted mineral rights on their property in all cases where the Soldier Settlement Board acquired those rights with title to the land. The two Ministers were also quoted as saying that the veterans would have until -Mdrh -311
1950, to make application for the mineral rights; that where title had not yet been given to a property, the mineral rights, with the surface rights, would be transferred upon settlement of the settler's indebtedness, and that where title to surface rights had already been transferred "approval may be given to convey the title to mineral rights".
Following this announcement, correspondence ensued between the majority of the present appellants, or their solicitors, and the District Solicitor of the Soldier Settlement Board at Edmonton. It is apparent that the solicitor, Mr. L. S. Cutler, thought that an order in council had been passed authorizing the sale of the mineral rights to the settlers, as he sent to several of them forms of an application, apparently prepared by someone on behalf of the Board, addressed to the "District Superintendent, Soldier Settlement & Veterans' Land Act," which read in part: The correspondence which ensued is set out at length in the judgment of Ritchie J. While the claims were not so pleaded, the appellants contend that these letters written by the District Solicitor constituted offers by the Crown. Even if that were so, and there is no evidence that Mr. Cutler was authorized to make any offer on the Crown's behalf, it is only in the cases of the appellant Peter MacDonald and that of the estate of the late D. W. Beaton that it can even be suggested that any agrement was made out.
In the case of MacDonald, a letter was written to him by Cutler on January 20, 1949, saying that a recent order in council had provided that soldier settlers who repaid their loans could obtain title to such mineral rights as were vested in the Director of Soldier Settlement and that it appeared from the Board's records that "you are entitled to mineral rights as shown on the enclosed form of application". A form of application, quoted above in part, was enclosed, and the letter asked him to complete it and return it with a fee of $25 when, it was said, a transfer conveying the mineral rights would be requested. MacDonald signed and sent the application with a cheque for $25, but the application was not accepted and, at a later date, Mac- Donald was advised that the mineral rights were not at any time owned by the Board. The accuracy of this statement is immaterial in these circumstances.
There was no evidence that an order in council had authorized the transfer of the mineral rights, and Cutler's statement that it would appear from the records that MacDonald was entitled to the rights was merely an expression of his opinion which, so far as the record shows, was inaccurate. His letter was not an offer, but rather an invitation to make an offer.
As to Beaton, he was informed by a letter from the District Solicitor, on February 7, 1949, that, on payment of the outstanding debt on his land, the director of Soldier Settlement would be prepared to transfer such mineral rights as were acquired by him and, alternatively, if he was unable to pay the indebtedness, the Department of Mines and Resources had been authorized, subject to the approval of the Director of Soldier Settlement, to dispose of the mineral rights by sale, provided the proceeds from such disposal were applied on Beaton's indebtedness to the Board. Beaton wrote that he was not able to pay up his indebtedness and did not want the mineral rights sold. Later he was advised that the mineral rights had not come into the possession of the Soldier Settlement Board and that it was not possible for the Board to deal with them, and there the matter rested. Clearly this correspondence discloses no agreement.
In one other case, that of the appellant John Lewis, a letter was written by Cutler saying that an order in council, of the nature above mentioned, had been passed and that it would appear that Lewis was entitled to mineral rights, and a form of application was sent to him. This again was an error on the part of the solicitor in so far as the letter referred to the order in council and was simply an expression of his opinion as to the settler's rights.
Thus it appears to me to be clear that, even if Cutler had been authorized to enter into a binding contract on behalf of the Crown, he did not purport to do so.
It is to be remembered that by reason of s. 57 of the Act of 1919 sales of mineral rights could not be made by the Soldier Settlement Board. The Act of 1917, upon which the appellants sought to place some reliance, was an Act to authorize loans to soldier settlers and to. enable them to obtain homestead entries and did not purport to authorize the sale of land. As Mr. Jiisiice Ritchie has pointed out, in the absence of any other statutory provision, the sale of public lands may be authorized by order in council under the Public Lands Grants Act, now R.S.C. 1952, c. 224. I agree with the learned trial judge that the onus lay upon the appellants to show that such an order in council had been made and that this was not proven. On the contrary, the evidence of the witness Cunningham showed that no such order in council had been made. I would dismiss this appeal and with costs if they are demanded.
Appeal dismissed with costs if demanded.