Earl v. Canada (Minister of Indian and Northern Affairs), 2004 FC 897

Date: 20040623

Docket: T-438-03

Citation: 2004 FC 897

OTTAWA, ONTARIO, THIS 23^rd DAY OF JUNE, 2004

Present:           THE HONOURABLE MR. JUSTICE MARTINEAU

BETWEEN:

                                              JULIA EARL and LORRAINE JACK

                                                                                                                                          Appellants

                                                                         - and -

HER MAJESTY THE QUEEN

IN RIGHT OF CANADA

(MINISTER OF INDIAN AND

NORTHERN AFFAIRS),

HUGH THEODORE (CHICO) JACK,

THERESA MARTINA JACK,

VICTOR FRANK JACK, JOSEPH RONALD DEAN JACK,

STEVEN ALLAN JACK c/o MARILYN JACK,

BARBARA ANN WHITMORE, WAYNE GRANT JACK,

and JOHN JACK

                                                                                                                                      Respondents

                                            REASONS FOR ORDER AND ORDER

[1]                This case concerns an appeal under section 47 of the Indian Act, R.S.C. 1985, c. I-5 (the Act) brought by Mrs. Julia Earl and Lorraine Jack, the appellants, in the matter of the estate of their deceased father. At issue is an estate consisting of an estimated $405 000 in land on the Okanagan Reserve left by Frank Jack a.k.a. Frank Leo Jack, No. 77(01), Okanagan Indian Band, who died on February 11, 2001 at Polson Extended Care, a nursing home in Vernon, British Columbia, where he had been living for four months. Prior to that, he had spent 9 years at Whispering Pines, a nursing home in Westbank, British Columbia. The home was located on the Westbank Indian Reserve, but was not on a reserve belonging to the Okanagan Indian Band of which the late Frank Jack was a member. He was admitted into Pine Acres on December 12, 1994 due to illness. Afterwards, he was deemed mentally incompetent by a court order on April 21, 1995.

[2]                On March 8, 2001, John Jack, one of the sons of Frank Jack, made an application to the Minister to have a document dated February 28, 1980, apparently signed by the deceased (the will), to be approved as his last will and testament. As the executor named in the will and applicant, John Jack swore to undertake to make all reasonable efforts to locate all heirs at law (those who would inherit if the deceased did not have a will) and to provide them with a copy of the will. The beneficiaries to the will are Frank Jack's sons, John Jack and Joseph Jack (the individual respondents), and also Williard Jack, who predeceased Frank Jack. Accordingly, as provided by the will, the individual respondents share equally in the estate. No provision was made in the will for any of Frank Jack's daughters: Theresa Martina Jack, Ida Jack (deceased, survived by a daughter and son), Mildred Jack (deceased, survived by a son), and the appellants, Julia Earl and Lorraine Jack. In addition, no provision has been made for Marilyn Johnson, also a daughter of Frank Jack but by a different mother, or his granddaughter, Barbara Ann Whitmore.

[3]                On March 19, 2001, the Minister's delegate, Kathy Hankin, approved the will and appointed John Jack as executor (the 2001 decision).

[4]                On April 10, 2001 and April 12, 2001, representatives of Judy Jack and Lorraine Jack, respectively, contacted the Ministry of Indian and Northern Affairs Canada (INAC) and advised of their intention to dispute the will of Frank Jack under section 46 of the Act. On July 12, 2001, Donald Knapp, the former solicitor for the appellants, wrote to INAC requesting that the will of Frank Jack be declared void under section 46 of the Act. Mr. Knapp advised that it was his clients' position that the will should be declared void on four grounds: (1) due to testamentary capacity; (2) undue influence; (3) the will caused hardship to his clients; or (4) the will was contrary to the public interest. Mr. Knapp suggested that the matter might be best heard in British Columbia Supreme Court. Mr. Knapp wrote to INAC again on August 14, 2001 to request that his letter of July 12, 2001, along with the enclosures be submitted to the Minister. He specifically sought a declaration from the Minister voiding the will of Frank Jack pursuant to paragraph 46(1)(a), (b), (c) and (f) of the Act. In the alternative, he sought an order transferring jurisdiction in respect of the will to the British Columbia Supreme Court, pursuant to subsection 44(2) of the Act.

[5]                On September 11, 2001, Karl T. Marsden, the solicitor for John Jack, wrote to INAC in response to Mr. Knapp's letters of July 12, 2001 and August 14, 2001. In the letter, Mr. Marsden stated his clients' position respecting the allegations made in the July 12, 2001 letter, and further stated that it was his clients' position that the validity of the will should be upheld. In the letter dated September 13, 2001 to INAC, Marilyn Johnston advised that she supported her sisters, Lorraine Jack and Julia Earl, in their request to have Frank Jack's will declared invalid.

[6]                On February 18, 2003, the Minister made a decision not to void the will of Frank Jack (the 2003 decision).

[7]                On February 27, 2003, INAC informed the appellants, all the beneficiaries and all potential heirs that the Minister had rejected the application to void the will and that the estate would be administered according to the will. Accompanying said letter is a copy of the 2003 decision which reads as follows:

DECISION ON AN APPLICATION TO VOID A WILL - NOT GRANTED

IN THE MATTER OF THE INDIAN ACT, R.S.C. 1985, CHAPTER I-5 AS AMENDED AND THE ESTATE OF FRANK JACK, also known as Frank Leo Jack, NO.77(01), OKANAGAN FIRST NATION, DECEASED

Pursuant to section 46 of the Indian Act, I do hereby concur with the approval of will given on March 19, 2001, of the will of the late Frank Jack, dated February 28, 1980.

signed (illegible)                                                                       February 18, 2003

for Alain Jolicoeur                                                                   Date

[8]                On March 17, 2003, pursuant to section 47 of the Act, the appellants, through their new counsel, Mrs. Teressa Nahanee, filed with this Court a notice of appeal of the 2003 decision.

[9]                By the present appeal, the appellants seek an order that:

(a)         The will be declared void;

(b)         The 2003 decision be set aside;

(c)         The estate of Frank Jack be distributed under section 48 of the Act; and

(d)         Costs against the estate of Frank Jack.

[10]            In Morin v. Canada (2001), 213 F.T.R. 291 at paragraphs 58 and 59 (F.C.T.D.), [2001] F.C.J. No. 1936 (F.C.T.D.) (QL), Justice Dawson discussed the standard of review to be applied on an appeal pursuant to section 47 from the Minister's decision as follows:

...The pragmatic and functional approach requires consideration of the existence of a privative clause, the nature of the decision under review, the purpose of the legislation, and the expertise of the decision-maker.

In the present case, there is no privative provision, the nature of the decision as to whether the 1986 will evidences a testamentary intent is substantially one of fact, the purpose of the relevant provisions of the Indian Act are to balance individual rights (and so the issues are not polycentric) and there is no evidence of any particular expertise on the part of the decision maker. The standard of review should therefore fall somewhere on a spectrum between reasonableness simpliciter and patent unreasonableness.

[11]            In that case, Justice Dawson did not need to decide whether the standard was reasonableness simpliciter or patent unreasonableness, since she found the decision to be patently unreasonable. That being said, Justice Dawson's comments on the lack of a privative clause, the purpose of the Act (to balance individual rights), and the lack of any particular expertise on the part of the decision maker all remain applicable to this analysis. However, in the case at bar, I would qualify the questions at issue as either questions of jurisdiction or questions of mixed law and fact. As a result, applying the pragmatic and functional approach (Dr. Q v. College of Physicians and Surgeons of British-Columbia), [2003] 1 S.C.R. 226 (S.C.C.), (2003), 223 D.L.R. (4^th) 599 (S.C.C.)), I find that the appropriate standard of review is reasonableness simpliciter, while the determination whether the Minister had jurisdiction or whether there has been a breach of natural justice is one that ought to be made by the Court based on a correctness standard.

[12]            Pursuant to subsection 42(1) of the Act, all jurisdiction and authority in relation to matters and causes testamentary, with respect to deceased Indians, is vested exclusively in the Minister of Indian and Northern Affairs (the Minister). Section 43 of the Act provides that the Minister may inter alia appoint and remove executors of wills and administrators of estates, and carry out the terms of wills of deceased Indians and administer the property of Indian who die intestate. The will made by an Indian does not need to be made in a particular form so long as it is made in writing and that his wishes or intentions with respect to the disposition of his property on his death are contained therein (subsection 45(2) of the Act).

[13]            As already underlined by this Court in Morin, supra, by conferring in section 42 of the Act jurisdiction upon the Minister with respect to matters and causes testamentary, Parliament conferred jurisdiction with respect to the grant and revocation of probate of wills and of administrator, together with jurisdiction over matters incidental as well. Parliament thus reposed in the Minister jurisdiction similar to that exercised by the surrogate or probate courts, and all the matters referenced in section 43 are incidents of the historic probate jurisdiction. In this respect, the purpose of section 45 is to make certain the rights of Indians, not to grant power to the Minister.

[14]            That being said, the jurisdiction of the Minister goes beyond the jurisdiction traditionally conferred upon surrogate courts. It includes the jurisdiction historically held by the superior courts with respect to the resolution of issues relating to the construction of a will admitted to probate and its validity in cases where it is alleged that the will was executed under duress or undue influence or the testator at the time of execution of the will lacked testamentary capacity. It is this superior court jurisdiction which is largely encompassed in subsection 46(1) of the Act which gives power to the Minister to declare the will of an Indian to be void in whole or part in the two latter cases (paragraphs 46(1)(a) and (b)), but also in a number of other instances, as where the Minister is satisfied that the terms of the will would impose hardship on persons for whom the testator has a responsibility to provide or they are against public interest (paragraphs 46(1)(c) and (f) of the Act).

[15]            Parliament also recognizes that the superior courts, which have ampler and more effective machinery to investigate in the circumstances related to testamentary capacity or duress, may be seized by the Minister of an application for the grant of probate or of any question arising out of any will or the administration of any estate (subsection 44(2) of the Act). This means in practice that at any stage of the process, the Minister may choose to make such a reference to the court that would have jurisdiction if the deceased was not an Indian.

[16]            Indeed, no will executed by an Indian is of any legal force or effect as a disposition of property until the Minister has approved the will or a court has granted probate thereof pursuant to this Act (subsection 45(3) of the Act). Moreover, where a will of an Indian is declared by the Minister or by a court to be wholly void, the person executing the will shall be deemed to have died intestate, and where the will is so declared to be void, in part only, any request or devise affected thereby, unless a contrary intention appears in the will, shall be deemed to have lapsed (subsection 46(2) of the Act). In such a case, the assets are distributed in the manner provided for by section 48 of the Act.

[17]            Section 47 provides that a decision of the Minister made in the exercise of the jurisdiction or authority conferred on him by sections 42, 43 or 46 may, within two months from the date thereof, be appealed by any person affected thereby to the Federal Court, if the amount in controversy in the appeal exceeds $500 or if the Minister consents to an appeal. As was decided by this Court in Morin, supra, it is apparent that Parliament intended in section 47 to grant a full right of appeal in respect to all decisions made by the Minister in the exercise of its jurisdiction relating to matters and causes testamentary. This includes the Minister's decision to accept or dismiss an application to probate the will made by an Indian or to void such a will. As decided in Morin, the source of the Minister's jurisdiction to accept a written instrument as a will is contained in section 42 and not in section 45. This interpretation avoids the anomaly that decisions relating to matters and causes testamentary, including the appointment of an executor, could be appealed but a decision that a document did not indicate a testamentary intent could not.

[18]            That being said, there is a condition precedent to the exercise by the Minister of the jurisdiction conferred in relation to property of deceased Indians (section 42 and following), mentally incompetent Indians (section 51) and infant children (section 52). Unless the Minister otherwise orders, the comprehensive regime established in sections 42 to 52 does not apply to or in respect of any Indian who does not ordinarily reside on a reserve or on lands belonging to Her Majesty in right of Canada or a province (paragraph 4(3) of the Act).

[19]            At the hearing held before this Court in Vancouver on June 2, 2004, appellants' new counsel indicated at the outset that the appellants no longer wished this Court to examine the grounds of invalidity based on paragraphs 46(1)(a), (b), (c) and (f) of the Act and which had been raised by appellants' former counsel in their letters dated July 12 and August 14, 2001.

[20]            Accordingly, it is not necessary to decide whether the Minister acted unreasonably by refusing to declare the will invalid on the following grounds:

(a)         The will was executed under duress or undue influence;

(b)        The testator at the time of execution of the will lacked testamentary capacity;

(c)         The terms of the will would impose hardship on persons for whom the testator had a responsibility to provide; or

(d)         The terms of the will are against the public interest.

[21]            This leaves the other grounds of appeal submitted by the appellants' new counsel. Basically, the appellants contend that the Minister erred in upholding the 2001 decision:

(a)         The Minister had no original jurisdiction to approve the will. The deceased had not been ordinarily resident of the Okanagan Indian Reserve at the time of his death. It was the Public Trustee rather than INAC which administered Frank Jack's affairs after he was declared mentally incompetent;

(b)         The Minister did not have before him an original document; and

(c)         The rules of natural justice or procedural fairness were denied when the Minister made the 2001 decision.

[22]            I find that the grounds of appeal mentioned in the last paragraph are not properly before this Court. By the position the appellants have taken previously before the Minister, the appellants cannot now assert that the conditions mentioned at subsection 45(2) of the Act were not met or that the rules of natural justice or procedural fairness were denied. It is clear that the application made by the appellants in 2001 relied exclusively on section 46 of the Act, and sought to have the will declared void for one or all the four grounds indicated earlier (testamentary capacity, undue influence, hardship, public interest). In any event, based on the evidence presently on record and the law as I read it, all the reproaches made by the appellants are unsubstantiated or unfounded.

[23]            In asking the Minister to void the will for one of the grounds mentioned at subsection 46(1) of he Act, the appellants have indeed recognized that the Minister had jurisdiction to probate the will of the deceased. At the same time, their desire is that the estate be distributed to the heirs in accordance with section 48, which would flow from a determination that the will is void (paragraph 46(2)). Then, one may wonder how the appellants can at the same time assert that the deceased did not ordinarily reside on a reserve. In such a case, this means that sections 42 to 52 would not apply. Accordingly, the heirs could not ask the Minister in the first place to distribute the estate in accordance with the scheme of distribution mentioned in section 48. In any event, the appellants have not brought before this Court conclusive evidence demonstrating that Frank Jack should not be considered to be ordinarily resident on a reserve. Indeed, the Minister had evidence to support this fact when he approved the will in the form of a Report of Death dated February 13, 2001 (provided to INAC by the Okanagan Indian Band) stating that Frank Jack had been a lifetime resident of the Indian reserve. The evidence indicates that Frank Jack lived in his home on the Priest Valley Okanagan Indian Reserve prior to his admission to Pine Acres Home, on the Westbank Indian Reserve, and then was admitted to Polson Extended Care Facility due to medical necessity.

[24]            I therefore accept the submission made by Respondent the Queen that Frank Jack was 'ordinarily resident' on the reserve pursuant to the definition of that term in the Act, which has been determined to mean residence in the customary mode of life of the person, as opposed to special or occasional or casual residence (Canada (AG) v. Canard, [1976] 1 S.C.R. 170">[1976] 1 S.C.R. 170 (S.C.C.), (1975), 52 D.L.R. (3d) 548 (S.C.C.)). That being said, I note that subsection 4(3) of the Act only requires that Frank Jack ordinarily be resident on a reserve, not the reserve or any particular reserve. In addition, the laws governing descent of property should not vary when an individual is required to live off reserve due to illness and residence in a medical facility is not a customary mode of life but rather is a special residence. Moreover, the appellants have also failed to conclusively establish before this Court that the Public Trustee ever administered Frank Jack's affairs. Based on the evidence on record, I must find that after he was declared incompetent in 1995, INAC assumed jurisdiction and authority pursuant to section 51 of the Act. Indeed, INAC administered Frank Jack's affairs throughout his hospitalization until his death in 2001.

[25]            The appellants also submit that the Minister erred by failing to consider whether the original will was before him. They submit that merely because a document is produced from a law office does not make it an original for the purposes of consideration by the Minister, and that a photocopy of a will may not be sufficient to put before the Minister. The appellants' claim is not supported by the evidence brought by the respondent, Her Majesty. Indeed, the Minister had the original will before him when he approved it. Frank Jack's solicitor at the time of execution of the 1980 will was Mr. Marsden. Frank Jack was provided with the original will on May 18, 1993, and INAC received the original under cover letter from Mr. Marsden, dated March 2, 2001.

[26]            In this case, the Minister determined that a document was a will of Frank Jack without hearing from the heirs of Frank Jack's estate and after hearing only from two beneficiaries. The appellants submit that this denial of the heirs' right to be heard prior to the Minister making his determination that the document was a will of Frank Jack constitutes a denial of natural justice or procedural fairness. This argument must also fail. Although there is a right of appeal under section 47 of the Act, it was always open to the appellants to ask the Minister to re-open the case and review his decision to probate the will on any of the grounds the appellants are now making before this Court in the present appeal. They chose to limit their representations before the Minister to the explicit grounds of invalidity enumerated at subsection 46(1). In so doing, they abandoned any claim they might have had to assert that the conditions prescribed at subsection 45(2) were not met. At no time did they complain that the rules of natural justice or procedural fairness were not previously followed by the Minister. Indeed, if the Minister had declared the will to be void for one of the grounds mentioned at subsection 46(1), the estate would have been distributed in accordance with section 48, as the appellants now ask this Court to order.

[27]            Finally, although the appellants did ask the Minister to exercise his discretion under subsection 44(2) of the Act, it is apparent from a reading of the correspondence addressed to the Minister that this request was made in the context of the specific allegations, under section 46 of the Act. The appellants wanted to avail themselves of the discovery process which is available to litigants in Supreme Court of British Columbia proceedings in order to ensure that the issues of the testamentary capacity of Frank Jack and of intention and of undue influence or duress receive a full hearing. Since the appellants have abandoned their grounds of appeal with respect to these former issues, I fail to see how they can argue that the Minister should have referred the questions to the Supreme Court of British Columbia. If a more general request was made, based on the material before the Minister at the time he made his decision, I find that the Minister did not err by failing to exercise his discretion pursuant to subsection 44(2) of the Act when the appellants provided no evidence to the Minister to support such a decision.

[28]            For the above reasons, the present appeal must fail. In view of the result, it is appropriate that the costs be granted in favour of the individual respondents, Joseph Jack and John Jack, and the respondent, Her Majesty the Queen in right of Canada.

                                               ORDER

THIS COURT ORDERS that the appellants' appeal be dismissed with costs in favour of the individual respondents, Joseph Jack and John Jack, and the respondent, Her Majesty the Queen in right of Canada.

                   "Luc Martineau"                    

                             Judge                               

                                     FEDERAL COURT

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                  T-438-03

STYLE OF CAUSE: JULIA EARL ET AL. v. HER MAJESTY THE QUEEN ET AL.

PLACE OF HEARING:                                 VANCOUVER, B.C.

DATE OF HEARING:                                   JUNE 10, 2004

REASONS FOR ORDER

AND ORDER:          THE HONOURABLE MR. JUSTICE MARTINEAU

DATED:                     JUNE 23, 2004

APPEARANCES:

MS. TERESSA NAHANEE                                         FOR THE APPELLANTS

MS. SUSAN DAWSON                                             FOR THE RESPONDENT

(HMTQ, Minister of Indian &

Northern Affairs)

MR. RON SKOLROOD                                             FOR THE RESPONDENTS

(Joseph Jack and John Jack)

SOLICITORS OF RECORD:

TERESSA NAHANEE                                                 FOR THE APPELLANTS

MERRITT, BC

MR. MORRIS ROSENBERG                                      FOR THE RESPONDENTS

DEPUTY ATTORNEY GENERAL OF CANADA      (HMTQ, Minister of Indian &

VANCOUVER, BC                                        Northern Affairs)

LAWSON LUNDELL                                                  FOR THE RESPONDENTS

VANCOUVER, BC                                         (Joseph Jack and John Jack)