Date: 20011220
Docket: T-458-99
Neutral citation: 2001 FCT 1430
Ottawa, Ontario, Wednesday the 20th day of December 2001
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
JOHN ROBERT MORIN, RICHARD WILLIAM
MORIN, FLORENCE MORIN, ISABELLE MORIN,
JOHN A. MORIN, AND THERESA MORIN
Appellants
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA,
THE MINISTER OF INDIAN AND NORTHERN AFFAIRS
CANADA, and THE ENOCH CREE NATION #440
Respondents
REASONS FOR ORDER AND ORDER
DAWSON J.
[1] This is an appeal brought pursuant to section 47 of the Indian Act, R.S.C. 1985, c. I-5 ("Act") against a decision of the Minister of Indian and Northern Affairs Canada ("Minister") dated February 23, 1999, which decided that Indian and Northern Affairs Canada ("INAC") would not approve the will of Adolphus Morin dated December 17, 1986, nor appoint the executor named under that will, nor redistribute the estate assets according to that will. The effect of this decision was to maintain the prior approval of the will of Adolphus Morin dated March 10, 1954, and the transfer of property pursuant to that will.
THE FACTS
[2] On March 10, 1954, Adolphus Morin executed a will naming his wife, Lottie Charlotte Morin, sole beneficiary of all his real and personal property, and appointing the Indian Superintendent, Edmonton Indian Agency, as the executor of the estate.
[3] Adolphus Morin died on June 23, 1996. He was survived, as indicated in a letter from the Enoch Cree Nation to INAC, by his wife and eleven children.
[4] On December 17, 1996, Michael Sidon, Manager of Estates and Trusts for the Department of Indian and Northern Affairs, approved the 1954 will, renounced his appointment as executor, and appointed Peter Morin to administer the estate of Adolphus Morin.
[5] The following year Peter Morin carried out his duties as administrator of the estate. In February of 1997 Peter Morin transferred to Lottie Morin the interest of her late husband in a quarter section of land on the Stoney Plain Indian Reserve No. 135. This transfer was approved on behalf of the Minister, and a certificate of possession was issued to Lottie Morin in May of 1997.
[6] Subsequently, in May of 1998, Lottie Morin transferred this land to Sandy Terry Morin, and this transfer was approved on behalf of the Minister in June of 1998. Sandy Terry Morin then transferred all or part of this land to the Enoch Cree First Nation in September of 1998 for consideration in the amount of $20,000.00.
[7] On November 12, 1998, the Enoch Cree Nation received a letter from a lawyer advising of a more recent will of Adolphus Morin dated December 19, 1986. The Enoch Cree Nation forwarded this letter together with a copy of the 1986 will to the Department of Indian and Northern Affairs and retained the sum of $20,000.00 it owed in respect of the pending land transfer in trust pending resolution of this matter.
[8] Mr. Sidon requested assistance from INAC's Ottawa office regarding the discovery of a more recent will and, as he wrote, the "complications this has now caused". Mr. Sidon attached to his written request for assistance copies of the 1954 and 1986 wills, a copy of the approval of the 1954 will and appointment of administrator with will annexed, a copy of the renunciation by personal representative, and a copy of the transfer of land by personal representative.
[9] Mr. Sidon was in due course advised that INAC would not approve the 1986 will. On February 23, 1999, Mr. Sidon in turn advised the solicitor for Sandy Terry Morin that the 1986 will would not be approved so that the 1954 will remained the approved document. The grounds for this decision were stated as follows:
1. Representatives of INAC had met with the family, including beneficiaries under the 1986 will, prior to the appointment of Peter Morin as administrator under the 1954 will, and all were in agreement to approve the 1954 will.
2. The purported second will was brought to the attention of INAC almost two years after the land had been transferred to Lottie Morin under the 1954 will.
3. There were allegations that Adolphus Morin lacked testamentary capacity when the 1986 will was made.
4. The Minister had a discretion to accept any will that meets the requirements of subsection 45(2) of the Act.
5. The Department had met its fiduciary duty.
[10] On March 12, 1999, the appellants filed a notice of appeal to this Court in respect of that February 23, 1999 decision.
[11] This appeal was originally brought on for hearing before Teitelbaum J. who noted that the original 1986 will had never been produced for consideration by the Minister, and that the original 1986 will had not been put before the Court on the appeal. Justice Teitelbaum therefore adjourned the appeal to permit the appellants to make a motion in writing to allow fresh evidence.
[12] Subsequently, Justice Teitelbaum issued an Order and Reasons for Order with respect to the motion for fresh evidence allowing the appellants to file fresh evidence. Justice Teitelbaum's reasons are instructive, and of importance in view of subsequent events.
[13] First, Justice Teitelbaum observed that:
Not having the original document which is alleged is the will, the Minister's representative could not tell whether the document is a valid will, that is to say whether the signature of the late Adolphus Morin is authentic or, for any other reason, the will can be accepted as authentic.
Justice Teitelbaum then concluded that the interest of justice required that all documentation, such as the original second will, be put before the decision maker to decide which will should take effect. Therefore Justice Teitelbaum ordered that:
(i) The appellants were given leave to present new evidence on appeal "on the question of the valid execution of the last will and testament of Adolphus Morin".
(ii) At the request of the respondents the appeal was adjourned for a period of six months to permit the respondents to consider the fresh evidence.
[14] Pursuant to Justice Teitelbaum's order, some new evidence was adduced by the appellants, although not filed before the resumed hearing of the appeal. In the absence of objection from the respondents a document entitled "Appeal Book (Vol. II)" was received as filed at hearing. The new evidence contained in that document may be summarized as follows.
[15] John Robert Morin, a son of Adolphus Morin, in an affidavit swore that:
(i) In December of 1986 he had taken his father to a lawyer's office in the southern part of Edmonton to prepare a will. His father, he swore, told him that he wanted the original will kept at the lawyer's office.
(ii) His father died almost ten years later. At that time John Robert Morin remembered the earlier will but was not certain if it still existed, and if so, where it was.
(iii) He was not informed of INAC's approval of the 1954 will, nor was he informed of the meeting between some family members and INAC employees.
(iv) He began to search for the will and ultimately was referred to the firm of Cruickshank Karvellas "in the early months of 1997". After speaking with a lawyer there the original 1986 will was sent to him a "short time later" by courier in May of 1997.
(v) Shortly thereafter he spoke to an employee at INAC and told that employee that he had discovered his father's last will. After a number of attempts made subsequently to find out what was happening with the 1986 will, John Robert Morin was told that INAC had already accepted another will and would not accept the 1986 will.
(vi) While he instructed a lawyer to write to the Enoch Cree Nation Indian Band about the 1986 will in the context of oil and gas money distributed by the Band, he never instructed a photocopy of the 1986 will to be sent to INAC.
[16] The other appellants, all children of Adolphus Morin, swore that they had no knowledge of the 1986 will until it was discovered by John Robert Morin. A lawyer formerly with Cruickshank Karvellas swore that a courier slip in the file indicates that the original will was sent to John Morin by courier on May 12, 1997.
[17] The second volume of the Appeal Book also purported to contain an affidavit of a representative of INAC filed in opposition to the motion for fresh evidence, and subsequent submissions made to the Minister by the appellants and the executor under the 1954 will. That material was not properly before the Court and should not have been in the Appeal Book because it was not included in Justice Teitelbaum's order made pursuant to Rule 351 of the Federal Court Rules, 1998 allowing new evidence.
[18] Surprisingly, in view of the clear terms of Justice Teiltelbaum's reasons and order, the original copy of the 1986 will was not put before the Court on this appeal. Rather, John Robert Morin swore in an affidavit that when he was informed that the Court might wish to examine the original will, he immediately gave it to his lawyer. The lawyer then simply put in the second volume of the Appeal Book a photocopy of the 1986 will which the lawyer certified to be a true copy. More surprising was that no evidence was put before the Court as to the execution of the 1986 will given Justice Teitelbaum's order allowing evidence "on the question of the valid execution" of the 1986 will and the obvious importance of that evidence.
[19] That, however, was not to be the last surprise.
[20] Armed with this evidence the appellants then argued that:
(i) The will was valid on its face, particularly in light of the confirming evidence that it had been retrieved from a law office.
(ii) The Minister had, in 1999, acted pursuant to his authority under subsection 46(1) of the Act so that the Court had jurisdiction under section 47 of the Act to either pronounce in favour of the 1986 will, or at least set aside the 1999 decision.
(iii) The Minister's decision failing to find the 1986 will valid was made without adequate facts or information and was arbitrary and contrary to law.
[21] After the completion of the appellants' submissions came the next surprise. Counsel for the respondent Crown rose to make a "preliminary" objection that the appeal was now moot because the Minister had made or would be making a new decision. The more precise status of the decision was said to be that the decision had been made, but not yet reduced to writing and signed, and that it had been orally communicated to counsel for the Crown and through her to counsel for the appellants approximately 12 days previously. The substance of the decision was said to be that after hearing new submissions the Minister's decision was unchanged.
[22] No advance notice or evidence was given to the Court as to the making of this "decision" or the fact that the Crown would be asserting that the appeal was now moot. Crown counsel, by consent, in support of her argument proffered copies of correspondence sent out by the Crown seeking submissions from interested parties as to the effect of the 1986 will. Counsel for the Crown also referred to the submissions improperly contained in the document filed as Appeal Book (Volume II).
[23] It is salutory, I believe, to repeat my comments as to the procedure followed by counsel in this case.
[24] First, the rules of court are designed to facilitate an orderly and thoughtful consideration of the merits of a case. This requires, and both fairness and the rules mandate, that the Court and the parties are to be given advance notice of the points to be argued and the evidence relied upon, unless extraordinary circumstances render that impossible. I find no such extraordinary circumstances in this case.
[25] Evidence on statutory appeals is to be adduced on a timely basis, in writing, and in accordance with the rules of evidence. This precludes the piecemeal tendering of documents at the hearing identified only by counsel's oral submissions. In so proceeding counsel do a disservice to their clients and the Court, contravene the rules of this Court, ignore at the least the spirit of the Code of Professional Conduct which admonishes that counsel are not to be witnesses in their own cause, and create a haphazard record for any appeal.
[26] Second, preliminary objections as to mootness are to be raised as a preliminary issue, before the moving party has argued that party's entire case, and are to be supported by a proper evidentiary record.
[27] After making those comments I heard argument from the parties on the issue of mootness and on whether the Crown's conduct merited an award of costs on a solicitor and client basis. I also heard the Crown's submissions on the issues raised on the appeal, which were in substance that:
(i) The Minister's decision had been made under subsection 45(2) of the Act and so there was no right of appeal under section 47 of the Act and that this proceeding was improperly brought.
(ii) The Minister's 1999 decision was not arbitrary or unreasonable.
[28] After judgment was reserved, on an unsolicited basis but with the consent of counsel for the appellants, counsel for the Crown sent to the Court a copy of a letter from Mr. Sidon to counsel for the appellants dated November 27, 2001 (the date of the hearing of the appeal) which advised:
Indian and Northern Affairs Canada (INAC) has reviewed all the information brought forward regarding the will of Adolphus Morin dated March 10, 1954 and the testamentary document dated December 17, 1986.
The information received was not sufficiently compelling for the Minister's prior approval of the 1954 will to be reversed. Accordingly, it has been decided that, pursuant to the Minister's authority under s. 45(2) of the Indian Act, the testamentary document dated December 17, 1986 will not be approved as the will of Adolphus Morin and the will of Adolphus Morin dated March 10, 1954 remains to be the approved will.
THE ISSUES
[29] On this record, the issues to be determined are:
(i) Is this proceeding moot, and if so, should the Court nonetheless hear and determine the appeal?
(ii) If the appeal of the February 23, 1999 decision is to be decided on its merits;
a) Was the appeal properly brought under section 47 of the Act?
b) If properly brought, should the appeal be allowed?
ANALYSIS
i) Is the proceeding moot, and if so, should the Court nonetheless hear and determine the appeal?
[30] The principle of mootness applies where the decision of the Court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. The onus of establishing that a matter or issue is moot rests on the party asserting mootness.
[31] In the present case, I have not been satisfied that a determination of the issues raised in the appeal of the 1999 decision will have no practical effect on the parties. Specifically, the Minister argued in this proceeding that where a decision is made pursuant to subsection 45(2) of the Act there is no right of appeal under section 47 of the Act. To the extent the new decision, put before me by counsel for the Minister for advice or to support the submission as to mootness, continues to rely upon the Minister's authority under subsection 45(2) of the Act, I find the dispute over the right of the appellants to appeal such decision is not academic.
[32] Moreover, even if moot, the Court retains discretion to hear and determine matters. That discretion is to be exercised "judicially", with regard to the principles articulated by the Supreme Court of Canada in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342. Those principles require recognition that:
(i) A court's competence to resolve a legal dispute is rooted in the adversary system.
(ii) There is legitimate concern for judicial economy.
(iii) The Court must demonstrate a measure of awareness of its proper law-making function.
[33] In the present case, on the first principle, I am satisfied that the appellants maintain a direct interest in having the scope of appeal rights under section 47 determined. To the extent that the appellants suggested that a second decision based on a flawed first decision is similarly flawed, I am satisfied that the appellants also maintain an interest in challenging the propriety of the initial decision. Therefore the first principle is met.
[34] The second principle reflects the fact that, as noted by the Supreme Court in Borowski, there is a need to ration scarce judicial resources. In Borowski the Court noted that the concern for judicial economy is answered if the special circumstances of the case make it worthwhile to have the issues adjudicated.
[35] In the present case, the lateness of the Crown's objection as to mootness resulted in the Court having already heard the appellants' case. There is little economy to be achieved in terminating proceedings at that juncture on the basis of mootness. Moreover, the concern as to judicial resources may be answered where the Court's decision will have some practical effect on the rights of the parties. In view of the continuing dispute between the parties I find that this second principle is met.
[36] Justice Gibson recently had occasion to consider the third principle in Teng v. Canada (Minister of Citizenship and Immigration) 2001 FCT 155; [2001] F.C.J. No. 312, where he wrote at paragraphs 26 and 27:
While there remains here a party of interest that could pursue any decision of this Court on an appeal or appeals, this Court remains, nonetheless, the first step in potentially three, for determination of the issues before the Court. While it is clear that Parliament intended that the responsibility for judicial review of decisions such as that here before the Court should rest with this Court at first instance, it is also clear that a decision of this Court would be far from ultimately determinative of the issues.
I am satisfied that an appropriate measure of awareness of this Court's proper law-making function requires that the issues here before the Court be determined in the context of a live controversy. If the questions now before me were before the Federal Court of Appeal, or even more persuasively, before the Supreme Court of Canada, my response to the second and third principles might well be different. But that is not the case. Here the issues are before the Trial Division of the Federal Court of Canada which is the first step in judicial review of decisions such as that here under review. I am satisfied that an awareness of this Court's proper law-making function, combined with an appropriate concern for judicial economy, requires me to conclude that this Court should get on with its fundamental role of judicial review of decisions giving rise to a live controversy and should leave what I conclude to be, in essence, reference-like adjudications to circumstances where they are specifically provided for in law. [underlining added]
[37] In the present case, in view of the position taken by the Minister on the substantive issues raised in this appeal and the reliance upon subsection 45(2) of the Act in the new decision, I find the controversy sufficiently live so as to conclude that determination of the issues raised in this appeal is in accord with the Court's proper law-making function.
[38] To conclude otherwise would be to place the appellants in the position of facing continued uncertainty as to the availability of their right of appeal almost three years after this appeal was commenced, and after two appearances where the merits of their appeal were argued. Thus, I find the third principle to be met.
[39] Therefore, even if I am wrong and the issues raised in this appeal are moot, in the exercise of my discretion I would determine the matters fully argued before me.
ii) Was the appeal properly brought under section 47 of the Act?
[40] The parties chose to base their arguments upon sections 45, 46 and 47 of the Act. There is a paucity of reported decisions which have considered those provisions. However, I believe they can only be properly considered in the context of sections 42 and 43 of the Act. Those relevant legislative provisions in material part are as follows:
| 42. (1) Subject to this Act, all jurisdiction and authority in relation to matters and causes testamentary, with respect to deceased Indians, is vested exclusively in the Minister and shall be exercised subject to and in accordance with regulations of the Governor in Council.
[...]
43. Without restricting the generality of section 42, the Minister may
(a) appoint executors of wills and administrators of estates of deceased Indians, remove them and appoint others in their stead;
(b) authorize executors to carry out the terms of the wills of deceased Indians;
(c) authorize administrators to administer the property of Indians who die intestate;
(d) carry out the terms of wills of deceased Indians and administer the property of Indians who die intestate; and
(e) make or give any order, direction or finding that in his opinion it is necessary or desirable to make or give with respect to any matter referred to in section 42.
[...]
45. (1) Nothing in this Act shall be construed to prevent or prohibit an Indian from devising or bequeathing his property by will.
45(2) The Minister may accept as a will any written instrument signed by an Indian in which he indicates his wishes or intention with respect to the disposition of his property on his death.
45(3) 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.
46. (1) The Minister may declare the will of an Indian to be void in whole or in part if he is satisfied that
(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;
(d) the will purports to dispose of land in a reserve in a manner contrary to the interest of the band or contrary to this Act;
(e) the terms of the will are so vague, uncertain or capricious that proper administration and equitable distribution of the estate of the deceased would be difficult or impossible to carry out in accordance with this Act; or
(f) the terms of the will are against the public interest.
46(2) 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 bequest or devise affected thereby, unless a contrary intention appears in the will, shall be deemed to have lapsed.
47. A decision of the Minister made in the exercise of the jurisdiction or authority conferred on him by section 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 five hundred dollars or if the Minister consents to an appeal.
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42. (1) Sous réserve des autres dispositions de la présente loi, la compétence sur les questions testamentaires relatives aux Indiens décédés est attribuée exclusivement au ministre; elle est exercée en conformité avec les règlements pris par le gouverneur en conseil.
[...]
43. Sans que soit limitée la portée générale de l'article 42, le ministre peut_:
a) nommer des exécuteurs testamentaires et des administrateurs de successions d'Indiens décédés, révoquer ces exécuteurs et administrateurs et les remplacer;
b) autoriser des exécuteurs à donner suite aux termes des testaments d'Indiens décédés;
c) autoriser des administrateurs à gérer les biens d'Indiens morts intestats;
d) donner effet aux testaments d'Indiens décédés et administrer les biens d'Indiens morts intestats;
e) prendre les arrêtés et donner les directives qu'il juge utiles à l'égard de quelque question mentionnée à l'article 42.
[...]
45. (1) La présente loi n'a pas pour effet d'empêcher un Indien, ou de lui interdire, de transmettre ses biens par testament.
45(2) Le ministre peut accepter comme testament tout document écrit signé par un Indien dans lequel celui-ci indique ses désirs ou intentions à l'égard de la disposition de ses biens lors de son décès.
45(3) Nul testament fait par un Indien n'a d'effet juridique comme disposition de biens tant qu'il n'a pas été approuvé par le ministre ou homologué par un tribunal en conformité avec la présente loi.
46. (1) Le ministre peut déclarer nul, en totalité ou en partie, le testament d'un Indien, s'il est convaincu de l'existence de l'une des circonstances suivantes_:
a) le testament a été établi sous l'effet de la contrainte ou d'une influence indue;
b) au moment où il a fait ce testament, le testateur n'était pas habile à tester;
c) les clauses du testament seraient la cause de privations pour des personnes auxquelles le testateur était tenu de pourvoir;
d) le testament vise à disposer d'un terrain, situé dans une réserve, d'une façon contraire aux intérêts de la bande ou aux dispositions de la présente loi;
e) les clauses du testament sont si vagues, si incertaines ou si capricieuses que la bonne administration et la distribution équitable des biens de la personne décédée seraient difficiles ou impossibles à effectuer suivant la présente loi;
f) les clauses du testament sont contraires à l'intérêt public.
46(2) Lorsque le testament d'un Indien est déclaré entièrement nul par le ministre ou par un tribunal, la personne qui a fait ce testament est censée être morte intestat, et, lorsque le testament est ainsi déclaré nul en partie seulement, sauf indication d'une intention contraire y énoncée, tout legs de biens meubles ou immeubles visé de la sorte est réputé caduc.
47. Une décision rendue par le ministre dans l'exercice de la compétence que lui confère l'article 42, 43 ou 46 peut être portée en appel devant la Cour fédérale dans les deux mois de cette décision, par toute personne y intéressée, si la somme en litige dans l'appel dépasse cinq cents dollars ou si le ministre y consent.
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[41] It can be seen that the significance of the Minister's assertion that his decision was made under subsection 45(2) of the Act is that it would immunize the decision from review on appeal pursuant to section 47 of the Act and arguably limit any attack to one brought by way of judicial review pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7.
[42] In arguing that the Minister's decision was made under subsection 46(1) of the Act, and not under subsection 45(2) of the Act, the appellants assert that:
(i) No clear and unequivocal language is present in subsection 45(2) to support any jurisdiction to reject wills. That jurisdiction is found only in section 46.
(ii) If, however, subsection 45(2) does bestow jurisdiction to reject a will, it would render section 46 meaningless.
(iii) Subsection 45(2) of the Act gives Indians broader rights than all other Canadians by relieving them of the harsh formal requirements of provincial wills legislation. Applying subsection 45(2) as the Minister did to deny rights to Indians is contrary to Parliament's intention.
(iv) If the decision was made pursuant to section 45, it would remove the form of judicial control that Parliament intended to be applicable to this decision.
[43] In arguing that the Minister refused to approve or accept the will pursuant to subsection 45(2) of the Act, the respondents point to the reference to subsection 45(2) of the Act in the decision of February 23, 1999, and to the fact that the Minister did not invoke section 46 and made no declaration of invalidity.
[44] It can be seen that the thrust of these submissions is that the Minister's authority is found in either section 45 or section 46 of the Act. This ignores the powers conferred on the Minister in subsection 42(1) of the Act with respect to "all jurisdiction and authority in relation to matters and causes testamentary". As I wrote in Cameron v. Canada (Minister of Indian Affairs and Northern Development), 2001 FCT 484; [2001] F.C.J. No. 763, in Re McElhinney (1930), 2 D.L.R. 290 (Sask. C.A.) the phrase "matters and causes testamentary", albeit contained in a probate statute, was held to mean matters and causes relating to the grant and revocation of probate of wills and of administration, and incidental matters.
[45] Thus, I conclude that by conferring in section 42 of the Act jurisdiction upon the Minister with respect to matters and causes testamentary, Parliament conferred jurisdiction equivalent to jurisdiction with respect to the grant and revocation of probate of wills and of administration, together with jurisdiction over matters incidental to that. Parliament thus reposed in the Minister jurisdiction similar to that exercised by the surrogate or probate courts. The principal duties of a court of probate is said in Halsbury's Laws of England, vol. 17(2), 4th ed. (London: Butterworths, 2000), paragraphs 75 and 103, to be to decide whether or not a document is entitled to probate as a testamentary instrument, and to decide who is entitled to be constituted the personal representative of the deceased.
[46] One of the primary characteristics of a testamentary instrument is that it is intended to take effect after the testator's death. Therefore to determine a document to be a testamentary instrument requires that a conclusion be made about testamentary intent.
[47] This interpretation of what is encompassed within section 42 of the Act is consistent with the particular powers reposed in the Minister pursuant to section 43 of the Act. Section 43, without restricting the generality of the powers conferred in section 42, makes clear that the Minister may do such things as appoint and remove executors and administrators, and authorize them to execute the terms of wills.
[48] All of the matters referenced in section 43 of the Act are incidents of the historic probate jurisdiction.
[49] The jurisdiction conferred upon surrogate courts with respect to "matters and causes testamentary" did not encompass jurisdiction over all matters relating to estates. Historically, the superior courts maintained an important jurisdiction. The superior courts were the proper forum for resolution of issues relating to the construction of a will admitted to probate, and were the proper forum where there were circumstances which showed that a strict investigation should be made of all of the facts surrounding the making of an alleged will before admitting it to probate. In that latter circumstance the case could be removed to the superior court which had ampler and more effective machinery for such investigation. See, for example, Jones v. Momberg (1915), 8 W.W.R. 1059 (Man C.A). Superior courts also exercised jurisdiction in respect of dependent relief legislation.
[50] It is this superior court jurisdiction which is largely encompassed in subsection 46(1) of the Act.
[51] Thus, I conclude that together the effect of sections 42, 43 and 46 of the Act is to repose in the Minister all authority over wills and their probate in respect of Indians when ordinarily resident on the reserves.
[52] Section 45, by contrast, is not a provision which confers power on the Minister. Section 45 makes express that Indians may devise or bequeath property by will, that Indians are not bound by the same formal requirements found in provincial wills legislation, and requires that no will is of legal force or effect until either approved by the Minister or admitted to probate by a court. The purpose of section 45 is to make certain the rights of Indians, not to grant power to the Minister.
[53] The source of the Minister's jurisdiction to accept a written instrument as a will is therefore contained in section 42 of the Act which confers jurisdiction over matters and causes relating to the grant and revocation of probate of wills. As noted above, the principal duty of a court with jurisdiction over matters and causes testamentary was to determine what was entitled to probate as a testamentary document, which in turn required determination as to the existence of testamentary intent.
[54] Viewed this way, it is apparent that Parliament intended in section 47 of the Act to grant a full right of appeal in respect of all decisions made in the exercise of the jurisdiction relating to matters and causes testamentary, as well as decisions declaring a will void. No right of appeal is conferred in respect of section 45, and no authority was conferred pursuant to that section. 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.
[55] Therefore, in determining that the 1986 will would not be approved, and that the executor named under that will would not be appointed, and that the executor under the 1986 will could not distribute assets according to that will, the Minister was exercising powers conferred by section 42 of the Act. Indeed, the latter two decisions fall within subsections 43(a) and (b) of the Act, provisions intended not to restrict the generality of section 42.
[56] It follows that this appeal was properly brought under section 47 of the Act.
[57] In so concluding, I am mindful that in Rice v. Canada (Minister of Indian and Northern Affairs), [1997] F.C.J. No. 596 the Court held that no appeal lies from a decision rendered under section 45 of the Act, and that a challenge to the form of written documents could not be part of an appeal under section 47 of the Act. However, no dispute appears to have been raised in that case as to whether the decision was made under section 45 of the Act, and the Court's attention apparently was not drawn to sections 42 and 43 of the Act.
(iii) Should the appeal be allowed?
[58] The first issue to be considered is the appropriate standard of review to be applied on an appeal from the Minister's decision. The right of appeal is unrestricted. 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.
[59] 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.
[60] The difference between the review on a standard of reasonableness and on a standard of patent unreasonableness was explained in Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748 at page 777 to lie in the obviousness of the defect. If the defect is obvious on the face of the tribunal's reasons then the decision is patently unreasonable.
[61] In the present case, I have concluded that no significant searching or testing is needed to see the defects in the 1999 decision. Therefore, as I find the decision to be patently unreasonable, it is not necessary for me to be more precise concerning the standard of review.
[62] As for those errors, it is to be remembered that the notice of the 1986 will did not come to INAC from the appellants, or for that matter from any relative of Adolphus Morin. The will was forwarded by the Enoch Cree Nation which was in the course of purchasing land formerly owned by Adolphus Morin which was disposed of pursuant to the provisions of the 1954 will.
[63] As the 1986 will was not proffered to INAC by someone who was promulgating the will, it may well have been open to the Minister to have had no regard to it. However, by choosing in that circumstance to direct inquiry into the will, the Minister was obliged to have at least considered whether the will was a valid testamentary document which indicated the deceased's intention with respect to the disposition of his property on death. If the 1986 will was found to be valid, it would follow that the 1954 will did not evidence Adolphus Morin's testamentary intent. At common law letters probate or letters of administration with will attached were therefore revoked if a later will was found. See: Macdonell, Sheard and Hull on Probate Practice, 3rd ed. (Toronto: Carswell, 1981) at page 347.
[64] The evidence is unchallenged that INAC never sought production of the original 1986 will, nor did it contact John Robert Morin or anyone else about the circumstances surrounding the making and execution of the 1986 will.
[65] The reasons of the Minister are completely silent on the issue of whether the document was a valid testamentary paper.
[66] For ease of reference, I repeat the reasons which were provided by the Minister for not giving effect to the 1986 will. They were:
1. Representatives of INAC had met with the family, including beneficiaries under the 1986 will, prior to the appointment of Peter Morin as administrator under the 1954 will, and all were in agreement to approve the 1954 will.
2. The purported second will was brought to the attention of INAC almost two years after the land had been transferred to Lottie Morin under the 1954 will.
3. There were allegations that Adolphus Morin lacked testamentary capacity when the 1986 will was made.
4. The Minister had a discretion to accept any will that meets the requirements of subsection 45(2) of the Act.
5. The Department had met its fiduciary duty.
[67] The first reason appears to rely upon the agreement of family members, including beneficiaries under the later will, to approve the earlier will. The evidence on this appeal is uncontradicted that if contacted by INAC those family members would have said that at the time of the meeting with an INAC representative they were unaware of the existence of the later will. No prior agreement should be held against persons then unaware of all of the relevant facts. Additionally, it is not clear that an agreement among some beneficiaries is a proper basis for the Minister's exercise of discretion as to whether a will should be approved.
[68] The second reason, delay, was a proper factor for the Minister to have considered.
[69] The third reason, allegations of a lack of testamentary capacity, is not supported by the evidence on the record. The evidence before INAC was confined to a note which says that Ron Morin, a nephew of the deceased, met an INAC representative on November 19, 1998. The INAC representative's notes of that meeting were that Ron Morin advised as follows:
Peter Morin and Sandy Morin visited office today, bringing in a copy of the recent will that was brought forward.
He thinks the previous will should stand.
Claims that his dad was ill when the latest will was done.
[70] Aside from being hearsay, a number of times removed, an unspecified illness does not equate to testamentary incapacity. Illness by itself includes physical ailments which would in no way touch upon testamentary capacity.
[71] Moreover, no determination was made as to testamentary capacity. Unsubstantiated and uninvestigated allegations are not a proper basis for dismissing a testamentary document.
[72] As for the fourth ground, the existence at law of discretion is by itself insufficient to support a decision. What is required is a principled exercise of that discretion.
[73] The unsupported conclusion that the department had met its fiduciary duty was not a relevant reason for refusing to give effect to a document proffered as a testamentary instrument, particularly where no inquiry was directed into the existence of any testamentary intent.
[74] While delay is, as I have noted, a relevant factor there is authority for the view that delay by itself is not a sufficient ground for refusing an inquiry into whether a later will should be admitted to probate. In Oestreich v. Brunnhuber, [2001] O.J. No. 338 (S.C.J.) Haley J. reviewed the law on this point as follows:
[18] Professor Feeney in The Canadian Law of Wills, 3rd edition, 1987, Vol. 1 p. 181 comments:
There does not appear to be a specific limit on the time within which an executor who has proved the will in common form may be called upon to prove it in solemn form. However, if the proceedings were regular, once the will is proved in solemn form, it cannot afterwards be set aside. But probate in solemn form may be revoked if fraud can be proved or if a later will has been discovered.
[19] Professor Feeney refers to In the Goods of Topping (1853), 2 Rob. Eccl. 620, a case heard in the Prerogative Court of Canterbury. A will had been proved in common form in 1835 and an application for proof per testes or in solemn form of that will was brought in 1853. The daughter of the deceased only became aware of the will some considerable time after her mother's death. The three witnesses to the will were still alive and available to testify. Sir John Dodson said at p. 621:
There have been instances in which wills have been called in, and the executors compelled to prove them in solemn form, after a great length of time. I know of no way in which executors can protect themselves from that inconvenience, except by examining the attesting witnesses before taking probate. Notwithstanding what is stated in some of the books to the contrary, it was the opinion of that learned judge Sir William Wynne, that there is no limitation as to time, in calling in question a will. I concur in that opinion ...
[20] In Re Flynn, [1982] 1 W.L.R. 310, Slade J. of the Chancery Division dealt with a will and codicil of which probate had been granted in common form in 1974. Proof in solemn form was sought in 1981. The court was asked to dismiss the proceeding on the ground of delay. Slade J. reviewed the argument and authorities in some detail and while it was not strictly necessary to the judgment he concluded at p. 318:
My general conclusion from the authorities cited to me, in particular In Re Coghlan, decd. [1948] 2 All E.R. 68 is that they tend to support the view that the court will never strike out an action to revoke a grant of probate or letters of administration on the mere ground of delay in instituting it, unless it is satisfied that the claim is otherwise frivolous or vexatious or is for other reasons an abuse of the process of the court. The apparent absence of any authorities specifically affirming the existence of the alleged power which the third defendant now invokes itself tends to suggest that the power does not exist.
[75] In the absence of relevant inquiries, in my view, a delay of two years is by itself an insufficient basis on which to ground a reasonable decision. Once the Minister decided to inquire into the 1986 will, by relying only upon delay and the other four grounds set out above, and by failing to inquire as to the circumstances surrounding the execution of the 1986 will, the Minister committed a reviewable error.
[76] It follows that the Minister's decision of February 23, 1999, should be set aside. I make no comment on the more recent decision which is not before the Court by way of an appeal.
[77] As for the costs of this appeal, I can find no sufficient reason why they should not follow the result. Given that I did not give effect to the Minister's late raised claim of mootness there is no basis, in my view, for costs to be awarded against the respondents on a solicitor and client basis. Therefore the appellants shall have their costs of this appeal to be assessed in the usual manner in accordance with column III of the table to Tariff B of the Federal Court Rules, 1998.
ORDER
[78] For the reasons set out above, this court orders that:
1. The appeal is allowed and the Minister's decision of February 23, 1999, is hereby set aside.
2. The appellants are entitled to their costs of this appeal, to be assessed in accordance with column III of the table to Tariff B of the Federal Court Rules, 1998.
"Eleanor R. Dawson"
Judge
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