Date:
20131118
Docket:
T-1608-11
Citation:
2013 FC 1168
Ottawa, Ontario,
November 18, 2013
PRESENT: The
Honourable Madam Justice McVeigh
BETWEEN:
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MARVIN LONGBOAT
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
AND ESTATE OF CASSIE BOMBERRY
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Respondents
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REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an appeal brought under section 47 of the Indian Act, RSC, 1985, c.
I-5 (the Act) of a July 29, 2011 decision by a delegate of the Minister of
Indian and Northern Affairs (the Minister) ordering Marvin Longboat (the
Appellant), removed as administrator of the estate of George Bomberry. Under
section 43 of the Act, the Minister is vested with the power to remove
administrators from the estates of deceased Indians.
[2]
The
Appellant is the Applicant in the style of cause and will be referred to as the
Appellant in the reasons.
I.
Background
[3]
On
August 30, 1995, the Appellant was appointed as administrator of the estate of
his uncle George Bomberry. George Bomberry was a status Indian who died without
a will.
[4]
Where
an Indian dies intestate, section 48 of the Act, sets out rules for
distributing estate property among the heirs and their descendants.
[5]
Among
the heirs of George Bomberry was his sister, Cassie Bomberry, who died some
time after George Bomberry.
[6]
In
addition to some minor assets, the main assets of the estate of George Bomberry
are two undivided parcels of land within the Tuscarora Band located on the Six
Nations Indian Reserve No. 40, in the province of Ontario. Those parcels are a ¼
interest in Lot 11-9 River Range Township (River Range Property) and a ¾
interest in Lot 6-17 in Concession 6 Township.
[7]
The
3/4 interest (Concession 6) land included the homestead of the Appellant's
grandparents of which they held since 1947. The land is approximately 50 acres
that could be used for farming and has a creek and a wooded area. The River
Range Property was owned by the Appellant's grandmother since 1938 and is a
narrow strip of land over approximately 6 acres. The estate lands have not been
used for sometime now.
[8]
Between
the parties it is uncontested that nearly 16 years after the appointment of the
Appellant as administrator of George Bomberry’s estate, the estate and land
remained undivided among the heirs.
[9]
On
July 29, 2011, the Minister ordered the Appellant removed as administrator of
the estate based on: (1) the refusal of the Appellant to fulfill his duties as
estate administrator despite numerous requests from officials with the
Department of Indian and Northern Affairs (the Department), and (2) a letter
received by the Department from Archie Bomberry, the estate administrator of
the estate of Cassie Bomberry, complaining of the Appellant’s failure to act
and requesting his removal as estate administrator so he could complete his
duties as administrator of Cassie Bomberry's estate.
[10]
The
Appellant seeks an appeal of the Minister’s decision as he maintains this
decision was incorrect as he was seeking to obtain a consensus to partition the
land among the heirs. To do so he needed support, assistance and time from the Minister
and needed to be accorded procedural fairness.
[11]
The
Appellant wishes there was an agreement so that present or future family
members could use this land of which he has many fond childhood memories rather
than allowing undivided interests to continue to multiply (fractionation) as
they are passed on to generations. To do what the Act says would freeze the
land and prevent productive use. He feels that if he does not reach an
agreement that no one will be in a position to do so and this ancestral
aboriginal land will continue to sit unused and be a source of family tension.
[12]
The
Appellant says the undivided problem exists of reserves across Canada but does not exist in the off reserve context in Ontario because of the Partition Act,
RSO 1990, c.P.4, s2, s3. The Appellant’s position is that there is no
legislation or guidelines to assist with this issue.
[13]
The
Appellant has attempted to reach an agreement with family members over the 16
years and had hoped the passage of time would assist in reaching the agreement
as tensions would pass but subsequent health issues and deaths of heirs only
delayed the process. The Appellant said the long process is not unusual and his
desire to respect the various family members personalities made it a “slower
pace”.
II. Issues
[14]
The
issues are whether the Minister's decision to remove the Appellant as
administrator was reviewable and if the Minister met the duty of fairness in
removing the Appellant as administrator.
III. Standard of review
[15]
The
parties submit that the existing jurisprudence has not provided sufficient
guidance for determining the standard of review applicable to the Minister’s
decision to remove the Appellant as administrator of the George Bomberry’s
estate.
[16]
I
disagree and I find the jurisprudence has established that the standard is
reasonableness.
[17]
Dunsmuir
teaches that where the jurisprudence has determined in a satisfactory manner
the degree of deference to be accorded to a given question, that standard
applies (Dunsmuir v New Brunswick, 2008 SCC 9, at para 62; Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, at paras 48-49).
[18]
Moreover,
the Supreme Court says that “the objective should be to get the parties away
from arguing about standard of review to arguing about the substantive merits
of the case” (Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61, at para 38 (Alberta Teachers’)).
[19]
The
role of the reviewing court is to first inquire “whether the jurisprudence has
already determined in a satisfactory manner the degree of deference to be
accorded with regard to a particular category of question” (Nor-Man Regional
Health Authority Inc v Manitoba Association
of Health Care
Professionals, 2011 SCC 59, at para 30 (Nor-Man); citing Dunsmuir,
above, at para 62; Smith v Alliance Pipeline Ltd, 2011 SCC 7, at para
24).
[20]
In
this case the issue is whether the authority exercised by the Minister to
remove the Appellant as administrator of the George Bomberry’s estate, was in
accordance with subsection 43(2) of the Act.
[21]
I
find that is a question for which prior jurisprudence has adequately
established that the standard of review is reasonableness.
[22]
The
Supreme Court of Canada has held that the provisions of the Act dealing with
testamentary capacity and the administration of estates grant substantial
discretionary jurisdiction to the Minister (Canard v Canada (Attorney
General), [1976] 1 S.C.R. 170, at pages 187 and 203 (Canard)).
[23]
Both
the Federal Court of Appeal and Federal Court have already conducted pragmatic
and functional analyses and determined that the standard of review applicable
to discretionary ministerial decisions made under the Act are reviewable on a
reasonableness standard.
[24]
The
Federal Court of Appeal has held that deference is owed to ministerial
decisions made in the context of Aboriginal rights that establish rights
between private parties where those decisions require considerable appreciation
of the circumstances of the parties involved (Tsartlip Indian Band v Canada
(Minister of Indian Affairs and Northern Development), [2000] 2 FC 314 (FCA),
at para 46 and 48 (Tsartlip)).
[25]
Moreover,
I note the discretionary authority of the Minister to remove administrators of
an estate in section 43 of the Act is among the broad discretionary authority
conferred on the Minister to make a number of decisions surrounding property
and wills found at sections 42 to 46 of the Act. This Court has previously
endorsed reasonableness as the applicable standard to discretionary decisions
of the Ministers made under those provisions (Sappier v Canada (Minister of Indian
Affairs and Northern Development), 2007 FC 178, at para 26 (Sappier);
Morin v Canada, 2001 FCT 1430, at paras 58-59 (Morin)), where the
Court found that the purpose of the provisions granting the Minister the
discretion to declare a will void or accept a will under sections 45 and 46 of
the Act are to balance individual rights and thus Minister’s authority was
reviewable on a reasonableness standard.
[26]
I
find the correctness standard of review put forward in Leonard v Canada (Minister
of Indian and Northern Affairs), 2004 FC 665, at para 29, as applicable to
estate administration matters under the Act is no longer applicable today when
considered in relation to the approach establishing the standard of review put
forward by the Supreme Court in Dunsmuir, Alberta Teachers’ and Nor-Man,
above.
[27]
At
issue here is the Minister’s decision to remove the Appellant as administrator
of the estate of George Bomberry under section 43 of the Act. Like Tsartlip,
Sappier and Morin, this is a decision that requires balancing the
rights of the parties and involves examination of the circumstances for which
the heirs of George Bomberry seek removal of the Appellant as administrator,
and consideration of the underlying land rights. Consequently, I find
reasonableness to be the standard of review applicable to the Minister’s
decision.
[28]
With
respect to whether the Minister met the duty of fairness owed to the Appellant
and gave him sufficient information of the allegations made against him prior
to his removal as administrator amounts to a question of procedural fairness
and is reviewable on a standard of correctness (Canada (Citizenship and
Immigration) v Khosa, 2009 SCC 12, at para 43).
IV. Analysis
[29]
The
Department has an internal manual called “Decedent Indian Estates Procedures
Manual” (manual), for use in their decision making for estates under their
jurisdiction. Chapter Seven deals with the removal of an administrator for cause.
It sets out the Department’s quasi judicial role and the steps to follow if a
complaint is received. The Department followed the steps and was satisfied the
removal was justified.
[30]
From
the record it is apparent that the Minister, on numerous occasions and acting
on complaints, communicated concerns to the Appellant over his failure to
administer the estate. The concern with delay was first raised with the
Appellant in 1998 and he gave his reasons for the delay.
[31]
A
Department official in correspondence dated September 20, 2001, again told the
Appellant of a complaint received regarding the delay and that he would be
removed if he did not conclude the estate. On October 28, 2002, the Department expressed
to the Appellant their concerns over the delay of seven years in administering
the estate.
[32]
On
December 13, 2002, the Department corresponded with the Appellant and
articulated that they could not let the estate go on forever and it need
concluded. As well this correspondence told the Appellant of "another
inquiry from one of the heirs to this estate."
[33]
In
August 2003, the Department received a complaint letter regarding the delay
that was signed by all of the heirs except the Appellant's mother.
[34]
The
last complaint letter was dated August 11, 2010, and following this complaint
the Minister began the process to remove the Appellant as administrator.
[35]
It
is apparent that the removal came after no fewer than six written requests from
the Minister and three discussions with the Appellant asking the Appellant to
complete the estate land transfer form. Letters from the Minister to the
Appellant are dated August 30, 2010, October 14, 2010, January 18, 2011,
January 20, 2011, June 8, 2011 and July 13, 2011. The Appellant responded on
May 26, 2011, but did not meet the June 30, 2011 deadline. Discussions took
place on January 13, 2011, July 7, 2011 and July 13, 2011.
[36]
In
five of the Minister’s requests, the Appellant was given a deadline in which to
complete the land transfers, and was informed that failure to comply with the
deadline would result in his removal as administrator. The original deadline
was set for October 29, 2010, but following meetings with the Appellant, the
October deadline was extended three times. First to June 30, 2011, then later
to July 8, 2011, and finally to July 28, 2011.
[37]
The
Appellant had to complete a "Transfer of Land by Personal
Representative" form to finalize the estate and it is that document that
he was given deadlines to complete and of which he has to date not done.
[38]
Sections
42 and 43 of the Act create a special regime for the administration of the
estates of Indians which grants all jurisdiction and authority exclusively to
the Minister in testamentary matters of Indians, including the authority to
appoint and remove estate administrators (see Annex A).
[39]
While
administration of a private estate is a matter that normally falls within
provincial jurisdiction, the Supreme Court has held that the testamentary
provisions of the Act, including sections 42 and 43, are constitutionally valid
and oust the jurisdiction of provincial courts (Canard, above, at 202,
209, and 211). This court has recognized that this jurisdiction in Indian
testamentary matters goes above and beyond the jurisdiction of historic probate
courts of common law (Earl v Canada (Minister of Indian and Northern
Affairs), 2004 FC 897, at para 13; Morin, above, at paras 49-50).
Consequently, I am not persuaded that legal principles set out in the
authorities relied upon by the parties, namely Elliot Estate (Re), [1976]
OJ No317, at paras 10-11; Radford v Radford Estate, [2008]
OJ No 3526, at paras 97-108, with respect to the high threshold required for
the removal of trustees in a private law context are necessarily applicable to
the case at bar.
[40]
Where
the exercise of ministerial discretion under the Act has been at issue, both
this Court and the Federal Court of Appeal have looked to the Act itself to
determine conditions applicable to guiding that discretion (Tsartslip,
above, at para 51; Sandy Bay Ojibway First Nation v Canada, 2004 FCA 229,
at para 30; Morin, at paras 45-51).
[41]
Section
42 is clear that the Minister’s discretion with respect to estate
administration is that the discretion be exercised in accordance with the
regulations issued by the Governor in Council.
[42]
The
Indian Estates Regulations, CRC, c 954, (the Regulations) at section 11,
set out the powers and duties of administrators in administering the estates of
Indians. In particular, the administrator is responsible to the Minister and is
obliged to carry out any order or direction given by the Minister (subsections
11(2), 11(14), 11(15)). Moreover, the Regulations provide for situations where
the heirs don’t agree. In those situations the administrator is required to
obtain approval of the Minister for an alternative distribution of assets (subsection
11(7)) (see Annex B).
[43]
Between
receipt of the complaint on August 11, 2010 and the removal of the Appellant as
administrator on July 29, 2011, the Minister allowed the Appellant an
additional year to achieve consensus among the heirs. Ultimately, the Appellant
did not follow the Minister’s requests. This followed nearly 15 years during
which time the Appellant was administrator and failed to achieve consensus. The
Appellant retained counsel in January 1999 to assist him but he says that the
land division issues are too esoteric and most lawyers would not understand
what was at stake. I find that over the course of the 16 years the Minister did
its best to assist and support the Appellant.
[44]
At
the end of the day, nearly 16 years after his appointment as administrator, the
Appellant failed to both distribute the estate assets and follow the orders of
the Minister, as he was required to do under the Regulations. Under such
circumstances, removal of the Appellant as administrator amounts to a
reasonable use of the Minister’s discretion under the Act.
[45]
The
Appellant maintains that the Minister failed to meet the duty of procedural
fairness because the Appellant had a right to be informed of the complaints
against him so that he could respond to the allegations. He finds it especially
unfair as in the decision it is unclear which of the complaint letters were
relied on. The Appellant feels he is owed a higher duty of fairness because of
his personal interest in carrying out his family duties.
[46]
I
disagree on both points.
[47]
I
do not agree he is owed a higher duty because of his personal interest as his
only duty is to administer the estate and his personal interests, though noble,
are not legislated as the administrator of the estate.
[48]
All
but one of the heirs had complained to the Minister at various times about the
delay. The Appellant was well aware of the complaints and that no matter how
well intended his attempts at an agreement were it was not reached.
[49]
The
record demonstrates that the Appellant was aware of the objections raised by
the heirs. In 2001 he was copied on correspondence complaining to the Minister
of delays and in 2002 he was informed in writing by the Minister of the impact
on the ability of two other administrators to conclude the estates they were
responsible for by his delay in settling this estate.
[50]
The
Appellant was aware of the factors relied on by the Minister (which did not
include inflammatory allegations) that were used to remove him. Even though the
Appellant was not provided with copies of all of the actual complaint letters,
he did not suffer any prejudice as he was aware that the complaint was that he
was not performing his duties in a timely matter. The Appellant was able to
submit his position and the Minister considered his position.
[51]
The
Supreme Court has held that the particular legislative and administrative
context informs the duty of procedural fairness (Canada (Attorney
General) v Mavi, 2011 SCC 30, at para 41 (Mavi)).
[52]
Under
sections 42 and 43 of the Act, the authority conferred on the Minister amounts
to a discretionary administrative decision to remove an administrator. I note
they do not empower the Minister to adjudicate a dispute between the
administrator and the heirs. Contrary to what the Appellant asserts, the
Minister’s task was not to provide the Appellant with an opportunity to address
the allegations of the complaint; rather, the Minister’s task was to determine
whether the administrator was executing his duties as required by the Act and Regulations.
[53]
The
requirements of the duty in particular cases are driven by their particular
circumstances and the simple overarching requirement is fairness (Mavi,
above, at para 42).
[54]
In
these circumstances, I find the Appellant has been treated fairly by the
Minister. The Minister found the Appellant had not executed his duties to
distribute the assets of the estate. As discussed above, prior to removing the Appellant,
the Minister provided numerous notices, meetings and extensions informing the Appellant
of the possibility of his removal, the steps he could take to avoid removal,
and the consequences should he fail to follow the Minister’s requests.
[55]
A
final argument of the Appellant was that he felt that in the past he had been
given extensions to reach an agreement and he had an expectation that he would
continue to be granted extensions. This argument fails as the doctrine of
legitimate expectations only gives rise to an expectation that a specific
procedural safeguard would apply and does not involve an expectation of a
substantive outcome (Mount Sinai Hospital Center v Quebec (Minister of
Health and Social Services), 2001 SCC 41, at paras 35 and 38).
[56]
I
see no error was made in proceeding as such and dismiss this application.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
The
Application is dismissed;
2.
No
Costs are awarded.
“Glennys L. McVeigh”
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