court casehttps://www.lawsociety.sk.ca/dbtw-wpd/exec/dbtwpub.dll?AC=GET_RECORD&XC=/dbtw-wpd/exec/dbtwpub.dll&BU=https://www.lawsociety.sk.ca/newlook/Library/fulltextnew.htm&TN=fulltext&SN=AUTO30628&SE=1307&RN=3&MR=20&RF=fullNew3P&DF=fullLongNew2P&RL=0&DL=0&NP=3&ID=&MF=WPENGMSG.INI&MQ=&TI=0
SHORE GOLD INC. V. WALKER
QB07085
Date of Judgment: March 1, 2007
Number of Pages: 25
QUEEN'S BENCH FOR SASKATCHEWAN
Citation: 2007 SKQB 90
Date: 2007 03 01
Docket: Q.B.G. No. 1312/2003
Judicial Centre: Regina
BETWEEN:
SHORE GOLD INC.
PLAINTIFF
- and -
RICHARD WALKER, UNITED CARINA RESOURCES CORP.,
CONSOLIDATED PINE CHANNEL GOLD CORP., ARNOLD
GUTKA, GLEN EMMONS, MARVIN ROY MULLANEY, MIKE
KUPCHANKO, DARREN HOFFORT, EMERSON KOCH, ALLEN
MOEN, DAN KOCH, URBAN CASAVANT, AND SHARON
HALLDORSON AND THE MINISTER OF INDUSTRY AND
RESOURCES
DEFENDANTS
Counsel:
Michael Tochor, Q.C. and for the plaintiff
Jodi R. Wildeman
Gerald P. Wanhella for the defendants except for The Minister of
Industry and Resources
JUDGMENT BARCLAY J.
March 1, 2007
[1] This action concerns a claim for mineral interests and in particular
diamonds in the Fort a la Corne area in Northeastern Saskatchewan. The
plaintiff, Shore Gold Inc. ("Shore") is in the business of the exploration and
development of mining projects as is the defendant, Richard Walker ("Walker")
and his corporations the defendants, United Carina Resources Corp. ("United
Carina") and Consolidated Pine Channel Gold Corp. ("Consolidated Pine").
Walker is the sole shareholder of the defendant corporations. The remaining
individual defendants allegedly assisted Walker in relation to the events of June
2, 2003.
[2] The defendant, Minister of Industry and Resources (the "Minister") is
responsible, by virtue of subsection 33(1) of The Mineral Disposition Regulations,
1986, Sask. Reg. 30/86 for recording mineral claims and issuing claim
certificates.
[3] Shore is in the business of the exploration and development of mining
projects.
[4] In Saskatchewan, mineral interests are disposed of by the Crown
pursuant to The Crown Minerals Act, S.S. 1984-85-86, c. C-50.2 and The Mineral
Disposition Regulations, 1986. When mineral interests become available for
disposition, the Minister gives advance notice of the date on which applications
for claims in relation to those interests will be accepted.
[5] With respect to lapsed claims, the Minister periodically publishes a
"lapse list" which identifies properties in relation to which claims may be filed and
prescribes the first date on which claim applications will be accepted.
[6] The Minister and the Department of Industry and Resources (the
"Department") accept, process and record mineral claims in the order in which
claim applications are presented for filing. As a result, although not cast in stone,
it is an accepted practice that parties who wish to file mineral claims line up
outside the front door of the registry office at the Department's Geological Lab on
Dewdney Avenue in Regina, Saskatchewan (the "Office") and do so in advance
of the date on which the Minister has indicated that claim applications will be
accepted.
[7] It is also an accepted practice in the mining industry that, in order to
be first in line to make application for mineral claims, a party must be positioned
immediately at the front door of the Office. It is also accepted in the industry that,
to retain a place in a claim line, a party must specifically occupy that place
constantly and without interruption 24 hours per day.
[8] On or about the middle of May 2003, the Minister published a lapse list
indicating that various mineral interests in the Fort a la Corne area would be
available for disposition and that applications for claims in relation to them would
be accepted as of June 2, 2003. In view of the large tract of land involved, this is
potentially a lucrative claim.
[9] Shore was interested in obtaining claims in relation to the mineral
interests (diamonds) in the Fort a la Corne area which were identified in the lapse
list published on or about May 15, 2003.
[10] Walker and one or more of the corporate defendants were also
interested in obtaining claims in the Fort a la Corne area. They hired, or arranged
for, the individual defendants to attend at the Office on their behalf.
[11] The Minister acknowledges in its pleadings that the process of
publishing a lapsed list (also referred to as a Notice of Re-opening) and the
requirement to do so and when, are all set out in s. 98 of The Mineral Disposition
Regulations, 1986. This procedure has been in use by the Minister for many
years and has been the method preferred by the mining industry for re-opening of
lands in the surveyed area when the Minister has consulted with Industry on this
issue.
[12] The Minister further acknowledges that in the surveyed part of
Saskatchewan, claim applications for lands identified on the lapsed list are
received at a designated location, date and time, identified in the lapsed list. In
this instance the designated location, date and time were Department of Industry
and Resource Office at 201 Dewdney Avenue East in Regina (North door facing
Dewdney Avenue) between 8:30 a.m. and 9:00 a.m., Central Standard Time on
June 2, 2003.
[13] The Minister further says that over the years in which the above
described process of accepting claim applications has been in place, it has been
aware that on a number of occasions people have lined up outside of its registry
office for days in advance of the published date.
ISSUES
[14] The first key issue in this case is whether Shore or Walker were
lawfully "first in line" and thereby entitled to register a mineral claim. The second
key issue is whether Walker used unlawful force to prevent Shore from entering
the Office on June 2, 2003. The evidence is uncontradicted that during that
morning, Walker did personally file the claim with the Department. Shore
contends that the defendants wrongfully and unlawfully used physical force to
dislodge Shore's representatives from their first place position in the claim line. In
complete fairness, learned counsel for Shore conceded that if I conclude that
Walker was first in line immediately prior to June 2, 2003, the Court would not
have to consider the second issue.
[15] Arnold Gutka testified on behalf of the defendants. He is a critical
witness. He was initially retained by the defendant Urban Casavant and
subsequently by the defendant Walker to represent him and the corporate
defendants. Due to a death in his family (of his brother David) and a matrimonial
dispute, he said he was under some stress. Although he was very emotional
during his testimony, he appeared to be very dedicated to his task and was an
honest witness and I accept his testimony even where it conflicts with other
witnesses.
[16] He was advised about the registration of the mineral claims and was
specifically told that he was to be first in line. He worked with the defendant Allen
Moen who assisted him with respect to the proper procedure to be followed in
order to ensure that Walker and the corporate defendants would be first in line to
register the claim. He also was assisted in this endeavour by the defendant,
Sharon Halldorson, Dan Koch, Emerson Koch and others (the "Gutka Group").
He characterized his position as a boss. He also had discussions with
representatives of the Department including Robert Lavigne.
[17] The Gutka Group began their vigil at the Office approximately May 10,
2003 (evidence of Robert Lavigne, transcript p. 21). Initially they occupied the
chair or chairs immediately in front of the entrance to the Office. Through rain and
snow they maintained their position at the front of the line and eventually pitched
a tent to protect them from the elements. Although chairs had been placed in
front of the Office, they were instructed by government functionaries employed by
the Department that they were interfering with the egress to the Office and were
breaching fire regulations. Although they were instructed by the officials to move
away from the door and the concrete slab, they were assured they were first in
line and they could also remain in the tent and still maintain their position. During
the day they sat in chairs outside the tent and when it became cold they moved
inside.
[18] After the Gutka Group, at the request of Dr. Gilboy, moved off the
cement slab near the door onto the grass, they were asked to move back again
as they were killing the grass. They again moved the tent and chairs to a new
location on the grass which was farther from the door.
[19] Arnold said he specifically spoke to officials in the Office and they
confirmed that they could sit in the tent and would still be first in line.
[20] One person was always awake in the tent and they monitored the
property 24 hours a day. When the employees of Trojan arrived in the early
morning hours of May 28, 2003, one of them opened the tent. The Trojan
employee then occupied the position immediately in front of the door near the
concrete slab. Tension mounted as the Gutka Group had always taken the
position they were first in line as they had been for several weeks prior, on the
site 24 hours a day. Gutka also emphasized that they were assured by officials in
the Office that if they moved away from the door as requested because they were
breaching fire regulations they would not lose their status as being first in line.
[21] When the Trojan employees positioned themselves in front of the door
of the Office, tension ensued. The Gutka Group complained to the Department
officials. However, the representatives from the Department changed their
position and refused to take part in the dispute.
[22] The defendant Walker testified. He also is President, CEO and sole
shareholder of the defendant corporations United Carnia and Consolidated Pine.
He filed two claims in the Fort a la Corne area in northern Saskatchewan which
were identified in the lapsed lists. As indicated earlier, the Minister published a list
of these claims which would be considered as of June 2, 2003. On May 21, 2003,
he attended at the site on Dewdney Avenue and ascertained that the Gutka
Group were maintaining their first-in-line position. After first ascertaining there
was not a conflict with the Gutka Group, he retained them to represent his
interests in filing a claim. At that time he was not aware of Shore Gold's interest
in the claims. Walker personally prepared the claim form. By May 30, he became
aware of Shore Gold's interest in the claims and also the problem with respect to
the lineup. Although he resided near Saskatoon, he travelled to Regina on
Sunday, June 1. It appeared that the Gutka Group feared for their safety. When
he arrived on Sunday two employees of Trojan were sitting on a chair near the
door in front of the Office. He was informed that due to the problem with the line,
the Gutka Group reported the matter to the Regina City Police. He therefore was
in contact with the day sergeant on Monday morning, June 2, 2003, prior to 8:00
a.m. which was the day the claims were to be filed. When he arrived at the site
on Monday morning he saw Ken MacNeill, the President and CEO of Shore and
their geologist, Kirsten Marcia and they appeared somewhat surprised to see
him. He had a discussion with Mr. MacNeill and they were concerned about the
tension that was displayed that morning between the two companies. In an
attempt to distill the situation Walker suggested to MacNeill that in order to avoid
any potential violence that they both file the claims simultaneously and have the
Department sort the matter out. MacNeill declined. MacNeill suggested that he be
permitted to obtain the necessary permits and Walker could then invest in the
claims. Walker suggested the opposite. As neither party agreed, steps were then
taken by both Shore and Walker to attempt to register their claims.
Evidence of Officials from the Department
[23] Dr. Christopher Gilboy, whose doctorate is in geology, was employed
by the Department at their Office. This location has two primary functions. One is
to store all the cores and other geological materials that come from oil and
natural gas drilling in the province. As a result, a number of geologists are
employed at that location for the purpose of conducting research on the samples.
The building is also being used for the filing of mining claims relating to lapsed
claimants.
[24] Dr. Gilboy was the Director of the Petroleum Geology Branch for the
Department and in May and June was responsible for the employees of the
Department as it relates to safety of the employees and clients. He was also
concerned with access to the building.
[25] Dr. Gilboy became aware that the Gutka Group were, in early May,
positioning themselves close to the front door of the Office in order that they
would be first in line to advance their claims. He became concerned as to where
they had positioned themselves as they were interfering with access to the
building. Dr. Gilboy said they would have to move off the concrete slab and onto
the grass. The Gutka Group inquired as to whether this would affect their position
and his reply was as follows:
... [I]t was obvious that they were first, they were already there. It was
absolutely evident to-to me and I felt to everybody else who was at
the Lab that they were first in line because there was nobody else
there. And-and that-and I-I mentioned that-they were
concerned about-about just I think whether-whether they would
always be considered first and I felt that as long as they had a 24-
hour presence because I knew there'd been an instant [sic]
sometime before where somebody had jumped the queue because
the person who had been there had left the position and gone round
to I think a porta loo or something like that, around the side of the
building and-and somebody had sat there. So I-my-my sense
was that if they maintained a 24 hour presence in front of the door,
even though it wasn't right against the door, but close to it, it was
really evident that they were first in line. I didn't think this would ever
be questioned.
Robert Lavigne
[26] Robert Lavigne, an Administrative Assistant for the Ministry of Industry
and Resources at the Office also testified.
[27] One of his duties is to assist in the filing of mineral claims. He recalled
the arrival of the Gutka Group. They inquired as to what procedure was to be
followed to file a mineral claim and they were advised by Lavigne that they were
to set up outside the door in chairs or in tents on the lawn by the front door.
Lavigne said they followed his advice, pitched a tent and set up chairs near the
door. It is not without significance that Lavigne advised the Gutka Group that they
could set up a tent.
[28] As there was a concern about interference with egress to the Office
and safety issues that concerned occupational health and safety, Lavigne
reported the matter to Dr. Gilboy. It was Lavigne's understanding that Dr. Gilboy
spoke to the Gutka Group and instructed them to move away from the front door.
He advised the Gutka Group that they were number one. He confirmed that the
Trojan employees eventually set up right beside the door. They were also asked
to move but they refused.
[29] Tension occurred between the Gutka Group and employees of Trojan.
Ken Kreis, a petroleum geologist employed with the Department at the Office
corroborated the testimony of Gilboy and Lavigne. He stated that Dr. Gilboy
requested the Gutka Group to move away from the door and onto the lawn as it
was causing fire and safety concerns.
[30] On May 28, after the Trojan employees arrived, further problems
ensued. As Dr. Gilboy was away, Ken Kreis became acting director. He said an
issue developed with the Trojan employees as they had positioned themselves
directly in front of the door by placing at least two chairs at that location. These
chairs were then occupied by Trojan employees. After discussing this matter with
Lavigne, it was decided that in order to be consistent, it was necessary to advise
the Trojan employees that they too should move from that location as it was
causing a fire hazard and safety issues. Although this was the same concern that
was raised with the Gutka Group, the Trojan employees refused to comply. In
fact, one of the Trojan representatives told Mr. Kreis in no uncertain terms that
they had no intention of moving, even if the police were notified.
[31] Sharon Halldorson was employed by the defendants to maintain a
front-of-the line position at the Office on Dewdney Avenue in order to be in a
position to file the mining claim on behalf of Walker and the corporate defendants
on June 2, 2003. She actually was hired by the defendant, Dan Koch, and did
position herself on a chair in front of the door to the Office a day prior to the
involvement of the Gutka Group. She said Lavigne stated that the defendants
were first in line and on June 2, the day the mineral claim was registered, Lavigne
said to her, as long as the defendants were on the property they would maintain
their first-in-line position. She recalled the arrival of the Trojan employees on May
28, 2003.
[32] One of the other defendants, Emerson Koch, testified. He assisted the
Gutka Group to attempt to maintain the first-in-line position after the Gutkas
arrived at the site in early May.
[33] After the Gutka Group were asked to move, Koch said that he and
Arnold Gutka were advised by Lavigne that the defendants were first in line even
though they had moved from the sidewalk. After the Trojan employees arrived
and positioned themselves on the sidewalk, Arnold Gutka told him that the
officials from the Department advised him that the defendants were still being
considered as first in line to register their claim. Koch said he saw Lavigne in the
Office and he again confirmed they were still being considered as being in the
number one position. I accept Koch's testimony.
[34] Shore retained Trojan Security to act on its behalf in obtaining and
holding a place in front of the claim line at the Office.
[35] Jim Leach the manager of Trojan Security was instructed by Shore
that in order to successfully register the claims, representatives of Shore needed
to be first through the door at the Office. As such, employees of Trojan were
instructed to establish and maintain, without interruption, the "first in line" position
outside of the Office until it opened on June 2, 2003.
[36] Jim Leach visited the site of the Office on May 26, 2003 at
approximately 7:45 a.m. and observed that a tent was set upon the grass on the
north side of the building with a few chairs beside the tent (the "tent"). There was
no one near the front door. After standing at the front door of the Office for a few
minutes, he said no one approached him.
[37] On May 26 and 27, 2003, Mr. Leach requested Trojan security officers
who were patrolling in the area of the Office to observe whether any person was
standing in front of the Office. Mr. Leach received no reports from any Trojan
security officer of any person standing in front of the building.
[38] After attending the Office on numerous occasions and determining
that no one else maintained the "first-in-line" position of the claim line, on May 28,
2003, at approximately 2:00 a.m., two Trojan security officers, Peter Kliewer and
Mark Palmer, positioned themselves on chairs immediately to the west and only a
few inches from the front door of the Office. In fact, Mr. Palmer indicated that he
did not observe anyone in front of the Office.
[39] Mark Palmer proceeded to secure the "first-in-line" position
immediately west of the front door on the raised slab and shortly thereafter,
another Trojan security officer, Peter Kliewer, joined him.
[40] Trojan security officers held this "first-in-line" position on chairs
immediately to the west and only a few inches from the front door without
interruption from approximately May 28, 2003 at 2:00 a.m. until June 2, 2003 at
8:30 a.m.
[41] Counsel for the defendants contend that the conduct of the parties in
the days, and for the Gutka Group, the weeks prior to that, is only relevant in
determining whether Walker should be deemed to have entered first by some
means found to be tortious. I disagree. I agree with counsel for Shore that in
order to be entitled to register its claim on June 2, 2003, it must satisfy two
requirements. First, it must attain the "first in line" position on May 28 in
accordance with established industry practice. Second, while maintaining the
"first in line" position prior to June 2, it must act lawfully.
[42] It is clear from all the testimony that the Gutkas and other individual
defendants who were representing Walker and the corporate defendants, had a
24 hour presence on the line or on the property of the Department. Although they
did use a tent to maintain their vigil, this was authorized by the Department.
Furthermore, there was no evidence adduced to suggest that using a tent on the
line was not in accordance with accepted practice. Gutka also testified that when
the Trojan employees arrived on May 28, he was awake in the tent and his
brother Dave was lying down, although he was not sleeping. I accept this
testimony. Therefore, during the period the Gutka Group were on the site, one
person was always awake. There is no evidence to the contrary.
[43] Until May 28, 2003, the Gutka Group, acting on behalf of Walker and
his corporations and other defendants assisting them, always maintained a first in
line position at the site. Initially they had positioned themselves in front of the
door at the Office on the cement slab. Subsequently they were advised to move
on the grass by Dr. Gilboy as there were fire and safety concerns. Subsequently
they were asked again by Department officials to move back further as they were
killing the grass.
[44] When the Trojan employees arrived they positioned themselves
immediately in front of the door of the Office on the cement slab. The official from
the Department asked them to move away from the door as it was causing fire
and safety issues. The Trojan employees, unlike the Gutka Group, refused their
request. In fact, the officials were told, even if the police were called, they would
continue to maintain their position.
Who was First in Line?
[45] Notwithstanding the able assistance of counsel, there is very little
authority that would assist the Court on this issue. My searches included a review
of Canadian, British, Australian, African, and American case law as it relates to
lineups and the law of equity in the Canadian Encyclopedic Digest, and in Snell's
Principles of Equity, 28th ed. by P.V. Baker and P. St. J. Langan (London: Sweet
& Maxwell Ltd, 1982).
[46] In at least one case, the Ontario Superior Court of Justice has
confirmed the convention of the waiting list in the context of subsidy applications.
Like a lineup, a waiting list operates on a first-come, first-serve basis, and the
participants on the waiting list are expected to accept their position on the list and
to acknowledge the priority of the other participants' positions. When a participant
on a waiting list secures a place on the list, that person can expect to remain in
the same position on the list vis-a-vis all other persons on the list.
[47] In Phoenix Housing Co-Operative Inc. v. Viner, [2004] O.J. No. 1476
(QL) (Ont. S.C.J.), the Phoenix Housing Co-operative Inc. made an application
for an order terminating the respondents' occupancy rights, claiming that the
respondents had informed the co-operative that they were no longer in need of a
subsidy and therefore could be removed from the internal waiting list. The
respondents claimed that they were entitled to a rental subsidy but that they were
wrongfully or erroneously removed from the waiting list, thereby losing their
"place in line."
[48] In weighing the evidence related to the respondents' financial
circumstances at the relevant time, Justice Rady found that the respondents
likely did not advise the applicant that their names could be removed from the
waiting list. Justice Rady therefore dismissed the application but ordered the
respondents to pay their arrears to the applicant. It is noteworthy that the
respondents were ordered to pay arrears only up until the date at which they
would have been entitled to a subsidy, had their position on the waiting list been
maintained. Therefore, in making an order to pay arrears, Justice Rady
considered what the respondents were entitled to, based on their position on the
waiting list.
[49] This case shows that where an individual proves that he or she
occupied a position on a waiting list but was wrongfully or erroneously bumped
from that waiting list, he or she may be entitled to at least a portion of what he or
she lost by being taken off. Nevertheless, while this case does recognize that an
individual may be entitled to relief if he or she is removed from his or her position
on a waiting list, it does not elaborate on what constitutes wrongful removal from
a lineup specifically.
First Come, First Serve
[50] The concept of "first come, first serve" is certainly not a novel concept
in Canadian society and for that reason the wording in Phoenix Housing, supra, is
not particularly surprising. The idea of the waiting list or the lineup as a basis for a
claim for priority service is evident in the context of theatre ticket lineups, doctors'
offices, social security offices, railway stations, bus stops, rationing lines, and
even among creditors in bankruptcy protection cases. Waiting lists and lineups
are one way that our society is ordered and one way in which we are able to bring
predictability and consistency into our every day lives. The consequences of lines
can also be very wide-ranging. In the case of the bus stop, an individual's position
in line may have some bearing on the quality of his or her bus ride, while in the
case of social security, an individual's position may affect their quality of life.
[51] Interestingly in our society, we place a great deal of emphasis on
"linear time" as something to be valued. Thus, there are accepted social
conventions governing lines that impute significance to the amount of time that an
individual has waited for the thing being sought. In societies where time is not
viewed in the same linear manner, an individual's position in a line may in fact be
less secure and some other criteria may be used to determine how the
participants' needs should be prioritized.
[52] It is clear from the mining case law that time is a determinant of the
priority of claims. In Kasal v. Morgan (1966), 55 W.W.R. 421 (Man. Q.B.), the
Court of Queen's Bench of Manitoba found that an earlier claim had priority over
a later one. This principle has also been enshrined in the related legislation and
regulations. As far as Saskatchewan is concerned, The Mineral Disposition
Regulations, 1986 indicate that the time and date of staking or of the recording of
an application are to determine the priority of claims.
Determining Who Has Priority
[53] Nevertheless, in Saskatchewan, there is almost no guidance for
resolving disputes related to "who was first" and why. There are no regulations of
the behaviour of participants in the lineup, and therefore, when participants get
"out of line" in the lineup, the rules governing their behaviour are unclear.
[54] There is also no legislated dispute resolution mechanism in
Saskatchewan for mining conflicts.
The Role of Equity
[55] In Granger v. Fotheringham (1894), 3 B.C.R. 590 (B.C.S.C.), the court
held that in mining conflicts the court should be guided by the same principles as
a Court of Equity. In other words, it is the responsibility of the courts to resolve
disputes of this nature on the basis of equity. Equity is a doctrine that has
developed to correct the deficiencies in the common law, so as to achieve a level
of fairness.
[56] One of the maxims of equity is that equity looks to the intent rather
than the form. In mining cases, it has been held that a prospector must stake his
claim to the mine in "good faith." This is reflected in Steep v. Cochrane, 1915
CarswellOnt 9 (Ont. Mining Comm., Nov. 06, 1915). This case highlights the
practice of "blanketing", which is when an individual holds land and then instead
of recording it, restakes it, in order to "... hinder or defeat the interests of a bona
fide prospector ...." (para 10). In this case, the Mining Commissioner found that
blanketing had not occurred. Nevertheless, this case, and the provincial
legislation which has since prohibited this practice, shows that "good faith" and
intention of the prospector is relevant to disputes involving mining claims in some
jurisdictions. It should be noted that "good faith" is the subject of mining case law
in those jurisdictions where it is incumbent upon an individual to make good faith
efforts to comply with the regulations when making a mineral claim.
Jurisdiction
[57] In order to invoke a rule of equity, it is necessary to ascertain the
circumstance that attracts the court's equitable jurisdiction. In some provinces,
statutes which include "good faith" as a requirement of an individual staking a
mining claim attract the court's equitable jurisdiction. Unfortunately, the
Saskatchewan legislation does not include a requirement for "good faith", and
therefore the relevant statute will not attract the equitable jurisdiction of the Court
on this basis. Another basis of jurisdiction is fraud or mistake where the relief
sought does not exceed a certain value (Snell's Principles of Equity, supra, at p.
21).
[58] There is very little case law related to lineups, and relatively little case
law related to the conventions governing behaviour in mining cases.
Nevertheless, while lineups are discussed in a tangential way in the case law, it is
interesting to note that the courts never question the convention of the lineup. In
Phoenix Housing, supra, the Ontario Superior Court has also recognized that an
individual's position on a waiting list entitled that individual to certain benefits.
[59] It would be grossly unfair for Shore to be permitted to register its claim
when its representatives (the Trojan employees) refused to move from the front
door of the Office after being requested to do so by an official of the Department
(Ken Kreis) as their presence was causing fire hazard and safety issues. This
was in direct contrast to the Gutka Group (Walker) who, at the request of Dr.
Gilboy, moved back from the front door of the Office. Furthermore, the Gutka
Group had a 24 hour presence on the property since May 10, 2003, and it was
not until May 28, 2003, that the Trojan employees arrived. Therefore, the
principles of equity should apply here as these circumstances should attract the
Court's equitable jurisdication.
[60] Here, equity and fairness demand that Walker and the corporate
defendants should be considered as being first in line during the period in
question and thereby entitled to have the claims recorded in their names in
relation to the property covered by the applications.
[61] If I am in error in concluding that Walker was first in line immediately
prior to June 2, 2003, then I should also consider whether the defendants, on
June 2, 2003, wrongfully and unlawfully used physical force to dislodge Shore's
representatives from their first-in-line position in the claim line, otherwise a new
trial would be required.
Events on June 2, 2003
[62] Kirsten Marcia is a geologist employed by Shore. She has had
extensive experience in the area as she has been involved in the filing of over
100 claims. If a claim has lapsed then a new claim must be filed by 8:30 a.m. on
the first Monday of every month. She testified that this custom has always been
that the person first in line directly west of the door would be entitled to file the
claim. On June 2, 2003, she arrived at 7:30 a.m. with the claim forms. She sat in
the chair closest to the door. This chair had previously been occupied by Jim
Leach of Trojan. She said she did not feel safe and was physically threatened.
One of the defendants pushed his elbow and thigh against her and another
defendant threatened to stomp on her feet. He was wearing hiking boots and told
her that if she did not want her feet stomped on, she should put them under the
chair. She became so frightened that she left her position on the chair and Jim
Leach sat in her place.
[63] Jim Leach said that he received specific instructions from Mr.
MacNeill, the CEO of Shore, not to do anything physical or otherwise illegal when
attempting to maintain the first in line position. He had escorted Kirsten Marcia
with the claim applications to the first in line position on the chair near the door to
the Office. Marcia who had been pushed, shoved and threatened, felt intimidated
and Mr. Leach therefore replaced her in the chair. A video had been taken as to
what transpired that morning and Mr. Leach said it properly reflected what
happened when Mr. Leach stood up and attempted to go to the door as he was in
the first in line position, he was pushed away by the defendants or their
representatives and he was unable to enter the premises. As two of the
defendants were able to go through the door he could not move as he was being
blocked so he could not enter the Office.
[64] An examination of the video reflects that on June 2, Kirsten Marcia
(and later Mr. Jim Leach) occupied the "first in line" position.
[65] As the respective camps gathered by the door, the defendant Sharon
Halldorson moved beside the door and later squeezed herself into a spot
standing over Kirsten Marcia. Ms. Marcia testified that she felt intimidated and
was physically threatened by one of the defendants. She therefore asked Jim
Leach to take over the "first in line" position. Her evidence was corroborated by
the defendant Walker who agreed that Ms. Marcia was upset when she left the
chair beside the Office door.
[66] Jim Leach, as the video shows, then occupied the "first in line"
position. The Gutka Group is then seen moving from the left side of the door
toward the right side, where the Office door opens. As the door is opened by the
Office staff, the defendant Dave Gutka uses his right arm to block Jim Leach from
moving forward and prevents him from entering. The physical force exerted by
Mr. Gutka is evident in his movement seen on the videotape when the door finally
opens.
[67] The Gutka Group, and David Gutka in particular, used physical force
to prevent Mr. Leach-who was in the "first in line" position-from entering the
Office and registering the mineral claim.
[68] The video portrays a standoff between the Trojan employees and the
Gutka Group. It shows a determined, continual movement of the Gutka Group
from the left side of the Office door to the right. The video also shows the Gutka
Group's reliance on force to achieve their objective. This was integral to the
Gutka Group's movement across the front of the door, and was the key to
preventing Mr. Leach from entering the Office.
[69] Mr. Leach placed his hand adjacent to the front door opening. Another
member of the Gutka Group, David Gutka, had his hand beneath Mr. Leach's
hand on the front door. Mr. Leach indicated that when the front door opened,
someone from the Gutka Group, located underneath Mr. Leach's arm, pushed
him back to the west of the door so that someone from the Gutka Group could
get through the door first. David Gutka knocked Mr. Leach's hand away from the
front door. Due to the considerable force from the Gutka Group in an effort to
dislodge Shore's representative from the first-in-line position, Mr. Leach was
physically unable to move forward to enter the Office. Members of the Gutka
Group blocked his entrance.
[70] At this time, Mr. Walker, who had located himself at the front door
beside Ms. Halldorson, managed to push ahead of the Shore representatives and
slipped through the front door with Ms. Halldorson. No one else was allowed to
enter the Office while they were presenting their papers to the Department within
the building.
[71] On June 2, 2003, Mr. Walker filed applications for mineral claims in
the names of the corporate defendants, United Carina and Consolidated Pine in
advance of Shore's applications.
[72] Although Shore has exaggerated the seriousness of the physical force
used by the Gutka Group, and I do take comfort in the comments of counsel for
Walker that there is a hint of the pot calling the kettle black, I am satisfied that the
force used was sufficient to warrant characterizing the Gutka Group's actions as
being unlawful.
[73] If I am in error in finding that equity and fairness demand that Walker
and the corporate defendants should be considered as being first in line during
the period in question and therefore entitled to have the claims registered, then I
would conclude that, by using physical force, the defendants did unlawfully
interfere with Shore's economic interests by entering the Office first and
registering its mineral claims.
Did the defendants unlawfully interfere with Shore's economic interests
by entering the Office first and registering its mineral claims?
[74] In Simpson v. Chiropractors' Association of Saskatchewan, 1999
SKQB 89, (1999), 185 Sask. R. 7 (Q.B.) (rev'd on other grounds, 2001 SKCA 22,
(2001), 203 Sask. R. 231 (C.A.)), the Court stated at paras. 285 and 286:
[285] Our law recognizes a cause of action arising from the
improper interference with economic relations. This is referred to as
the tort of interference with economic relations, also known as
unlawful interference with economic interests. According to Lewis N.
Klar in Tort Law (Toronto: Carswell, 1991) this is a relatively new tort
emerging in Canada and appears to subsume specific nominate torts
such as conspiracy, inducing breach of contract and intimidation.
Under this tort, any use of unlawful means by a party with the
intention of causing injury to another, without justification, can be
considered tortious. The elements of this tort are as set out in Burns,
Tort Injury to Economic Interests: Some Facets of a Legal Response
(1980), 58 Can. Bar Rev. 103 at 141:
"(1) the defendant intended to injure the plaintiff,
(2) the defendant's act was unlawful, and
(3) the plaintiff suffered an economic loss or related injury."
[286] Wimmer, J. in Bartrop v. Sweetgrass Band No. 113 et al.
(1987), 54 Sask. R. 213 (Q.B.), considered this tort. At p. 218, he
observes:
"[29] The tort of unlawful interference with economic interests
consists of one person or a body of persons inflicting actual
pecuniary damage upon another by the intentional use of
unlawful means. Pecuniary damage is essential to the cause
of action and it must be shown to have directly resulted from
the use of unlawful means. Clark & Lindsel on Torts, (14th
Ed.), p. 425; Torquay Hotel Co. v. Cousins, [1969] 1 All E.R.
522."
[75] In other words, I am satisfied that the defendants conspired and
combined to deprive Shore of its right to enter the Office first and file its mineral
claims. With full knowledge of Shore's "first in line" position, the defendants
participated in a joint plan to ensure Mr. Walker entered the front door of the
Office in advance of Shore's representatives and employed physical force to
achieve this objective. The defendants knew or should have known that such
unlawful conduct would have caused Shore injury and did in fact cause Shore
injury.
CONCLUSION
[76] Here the representatives of Walker and the corporate defendants, had
a 24 hour presence on the property since May 10, 2003 and it was not until May
28, 2003, that employees of Trojan arrived. Initially they had positioned
themselves in front of the door or on the cement slab. They specifically followed
the instructions from Dr. Gilboy and other officials of the Department to move
initially onto the grass and then back further on the lawn. The initial request was
made because of the Department's fire and safety concerns. It is significant that
when the Trojan employees were asked by the Department to move away from
the door because of fire and safety concerns, they refused. In my view it is
grossly unfair for Shore to now suggest that they should be characterized as
being first in line when they ignored the lawful request by the Department to move
away from the door.
[77] Here, as stated earlier, equity and fairness demand that Walker and
the corporate defendants should be considered as being first in line during the
period in question, otherwise an injustice would ensue.
[78] I therefore declare that Walker and the corporate defendants are
entitled to have the claims recorded in their names in relation to the property
covered by the applications.
[79] Walker and the corporate defendants are entitled to their costs.
J.
R. L. Barclay
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