Case: Mill v. Orogenic Gold Corp., 2024 BCCA 258 (CanLII)

Keywords: reactivating an appeal; mineral rights dispute; appeal procedure

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Synopsis:

This case is about reactivating an appeal in the context of a dispute over mineral claims. The Respondent Orogenic Gold Corp. alleges that the Appellant Richard Mill is in breach of an “Option Agreement” for the transfer of certain mineral claims. (See para. 3). The Respondent brings a summary trial application seeking specific performance of the Agreement. The Judge (Baker J.) orders specific performance and extends the deadline for the Respondent to complete a “going public transaction” in accordance with the Agreement. (See para. 4).

The Appellant then files a notice of appeal and appeal record, but takes no further steps in the appeal. (See para. 5). The matter is placed on the inactive list. The Appellant later files an application to remove the appeal from the inactive list – specifically, he applies to reactivate his appeal and for an extension of time to file his factum and appeal book. (See para. 1).

The Court of Appeal (Skolrood J.A., in Chambers) grants the application, but awards costs to the Respondent. (See paras. 32-33).

Importance:

The Court of Appeal provided a useful outline of the procedure for ‘reactivating’ an appeal. While there is “no specific test”, the Court relied on a list of factors outlined in Centrone v. Jones, 2024 BCCA 177 at para. 14:

    • the extent of the delay;
    • the explanation for the delay;
    • any prejudice arising from the delay; and
    • the likelihood of success of the appeal. (See para. 9).

The “principal concern” on an application to ‘reactivate’ is whether doing so would be in the interests of justice. (See para. 10). Further, and of relevance for those crafting submissions on this topic, the Court referred to its ability to reactivate with “particular terms and conditions” – in other words, there is flexibility for a Court to chart a course for the parties, should the application be granted. (See para. 11; Rule 50(3)-(4)).

In the circumstances of this case, there was approximately one year of delay since the commencement of the appeal. The Court of Appeal was “not persuaded” by the Appellant’s explanation for the delay (e.g., that he was “properly focused” on other court matters), finding that “those other proceedings do not affect Mr. Mill’s ability to file his factum on time in this appeal” and that “this appeared to be a unilateral tactical decision…which he did not communicate to [the Respondent].” (See para. 17; Drover v. BCE Inc., 2015 BCCA 132 at paras. 57, 68 and 79). Despite the Court of Appeal’s conclusion on the extent and explanation for the delay, the Court agreed with the Appellant’s submission that there was “minimal prejudice” to the Respondent. (See para. 23). As to the Appellant’s likelihood of success on appeal, the Court of Appeal observed that the “appeal is relatively weak”. However, because the “merits threshold is low”, the Court was not prepared to say it was “bound to fail”. (See para. 28).

Therefore, the Court of Appeal determined this case was “very close to the line in terms of whether it should be reactivated”, but ultimately found it was in the interests of justice to have this case heard on its merits. (See para. 29). The Court ordered that the appeal be removed from the inactive list and that the Appellant be given an extension to file and serve his factum and appeal book. (See para. 32). Notably, however, the Court awarded costs to the Respondent – payable in any event of the cause in the appeal. (See para. 33).

Counsel for the Appellant: Chilwin Cheng and Janessa Mason (Ascendion Law, Vancouver)

Counsel for the Respondent: Mark Fancourt-Smith and Jane Mayfield (Lawson Lundell LLP, Vancouver)

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