Thursday, 8 August 2013

Administrative Bodies Rectifying their Own Errors

We have all been there. A vital transaction needs to be made (think course registration, ticket purchase, visa payment) but, as you sit there drumming your fingers impatiently on the table, you are greeted with the message: "Our System is Currently Unavailable".

Now imagine that you wanted to access the system in order to re-register your gold holdings, assets on which you had spent $80,000 maintaining. Further imagine that, in the time you could not access the system, you forfeited your gold holdings because you missed the re-registration deadline and someone else swooped in and registered them.

This is the factual scenario of Valterra Resource Corp. v. British Columbia (Chief Gold Commissioner), 2013 BCSC 1172:

[4]           But as every computer user knows, at times computer programs fail to work properly. The MTO is no exception. One such period occurred during the weekend of July 7/8, 2012 when the MTO system was down. Access was sporadic and renewals and registrations could not be completed because the system would not take the necessary payment of the fees.
The Commissioner was informed of the unfortunate chain of events. Although at first unsympathetic,  the Commissioner had a "change of heart" and action was taken (at para. 32). A series of orders were made, the ultimate effect of which was to divest the opportunists and reinstate the original owner's holdings.

Fitzpatrick J. dismissed an application for judicial review of the Commissioner's decisions. She held that the Commissioner's power to delete "intervening entries" was wide enough to justify the action taken here (at para. 70). Section 67 of the Mineral Tenure Act provides in part:
(2) Even if a claim is forfeited or a lease expires under this Act because the recorded holder fails to comply with a requirement of this Act within a time limit, the chief gold commissioner, by order, may set aside the forfeiture or the effect of the expiry and allow a further period of time for compliance.
(3) The chief gold commissioner, under section 6.36, may delete an intervening claim from the registry.
(4) No legal proceeding lies or may be commenced or maintained, and no compensation is payable, in respect of a deletion under subsection (3).
The exercise of the power was reasonable in the circumstances:
[106]     In substance, the petitioners were unhappy with the Gold Commissioner’s decision. They wished that he had come to a different decision that would have preserved their registrations. He did not.
[107]     I am not persuaded, however, that the Gold Commissioner’s decision was based on any improper purpose under the Act or that he considered irrelevant matters. The reasons for his final decision were adequate, and his final decision was within a range of possible and acceptable outcomes within the bounds of the facts and the law. His decision was, in a word, reasonable.
One point apparently not put to Fitzpatrick J. was whether Commissioner was functus officio once the initial decision to refuse to take action had been taken. Given the relatively short lapse of time and correspondingly weak reliance interests at issue, perhaps such an argument would not have been very strong.

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