Date: 20020625
Docket: T-132-02
Neutral Citation: 2002 FCT 713
OTTAWA, Ontario, this 25th day of June, 2002
PRESENT: The Honourable Mr. Justice Rouleau
BETWEEN:
JOHN ROBERT MORIN, RICHARD WILLIAM MORIN,
ISABELLE MORIN, FLORENCE MORIN, JOHN A. MORIN,
AND THERESA MORIN
Appellants (Applicants)
AND:
HER MAJESTY THE QUEEN IN RIGHT OF CANADA,
THE MINISTER OF INDIAN AND NORTHER AFFAIRS
CANADA, and ALEX PETER MORIN in his capacity
as Administrator of the Estate of Adolphus Morin
Respondents (Respondents)
REASONS FOR ORDER AND ORDER
[1] This matter first came before me as duty judge during the week of June 10, 2002. After reviewing the material on file and knowing that I had been assigned as motions judge in Edmonton, Alberta for June 18, 2002, I felt that a meeting with all counsel at Edmonton would be appropriate. I will attempt to outline my reasons for concern and why I felt that a non binding discussion between the parties could be of some assistance to resolve the issues.
[2] The matter was first brought to my attention primarily as a result of a motion seeking to determine what documents the appeal books should contain. The appellants are challenging a decision of the Minister of Indian and Northern Affairs which issued November 29, 2001 and which is the basis for the dispute between the parties.
[3] A brief review of the history of this file is warranted and may assist in resolving some of the issues or in the alternative be instructive to the parties as well as their counsel, and may be of some assistance in arriving at a amicable and practical resolution.
[4] The dispute arises in the estate of one Adolphus Morin who was a member of the Enoch Cree First Nations and resided on Reserve No. 135 located in the Province of Alberta.
[5] Mr. Morin died on June 23, 1996 and at the date of his death he was survived by his wife and eleven children. In March, 1954, the deceased had executed a will naming his wife Lottie Charlotte Morin sole beneficiary of his real and personal properly.
[6] The will was forwarded to the Department of Indian and Northern Affairs which approved the 1954 will pursuant to procedures outlined in sections 42 to 47 of the Indian Act, R.S.C. 1985, c. I-5, which provide 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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[7] The 1954 will of the late Mr. Morin appointed the Indian Superintendent at Edmonton as executor of the estate. This was procedurally altered by the Manager of the Estates and Trusts of the Department of Indian and Northern Affairs whereby the Department renounced its appointment and nominated a son, Peter Morin, as executor with will annexed, to administer the estate. The same Peter Morin is now a party respondent in this matter.
[8] The following year, in February, 1997, Peter Morin, in accordance with the wishes of the testator, arranged for the transfer of the certificate of occupancy to the surviving spouse, Lottie Charlotte Morin, interest in her late husband's quarter section of land on the Stoney Plain Indian Reserve 135. This was approved by the Department and the certificate issued in May, 1997.
[9] Subsequently, in May, 1998, Lottie Charlotte Morin transferred this land to a son, Sandy Terry Morin, and this was approved on behalf of the Minister in June, 1998. He, in turn, then transferred part of the land to the Enoch Cree Fist Nation in September, 1998 for a consideration of $20,000.00. I was advised by the parties during my conference on June 18, 2002 that the land was then ceded by the Enoch Cree First Nation to the Province of Alberta for highway improvement. I have to conclude that this was the consideration that the Province paid for obtaining this parcel of land.
[10] In November, 1998, a lawyer initially retained by the appellants, wrote to the Enoch Cree First Nation advising that a more recent will of the late Adolphus Morin had been discovered and it was dated December 19, 1986. A letter together with a copy of the 1986 will were sent to the Department of Indian and Northern Affairs. The Band Council retained the sum of $20,000.00 pending a resolution of the matter.
[11] The Department was then requested to alter their approval initially given to the 1954 will and asked to approve the 1986 will, being the last will and testament of the deceased and proceed with the administration of the estate in accordance with the wishes of the testator as prescribed in the 1986 will. It should be noted that the 1986 will totally disinherits the surviving spouse and the entire estate was to be divided equally among the late Mr. Morin's eleven children or the survivor of them.
[12] In February, 1999, the Department of Indian and Northern Affairs refused to consider the 1986 will. The Minister indicated that his representative had met with the family and they had agreed to the appointment of Peter Morin as executor; that nearly two years had elapsed since the transfer of the certificate of occupancy to the widow and that the Minister had discretion to accept any will that met the requirements of subsection 45(2) of the Act; and finally that the Department had met its fiduciary duty.
[13] In March, 1999, these appellants filed a Notice of Appeal in this Court seeking to set aside the February, 1999 decision wherein the Minister refused to act on the 1986 will.
[14] The matter was first brought before this Court and it was adjourned by the presiding Justice at that time since the appellants had failed to produce a copy of the 1986 will and an affidavit of execution thereof. The matter was adjourned for six months in order to allow the parties to produce all relevant documents before making a determination as to whether or not the Minister acted appropriately in February, 1999 in refusing to approve the 1986 will. The matter then proceeded to a full hearing.
[15] Prior to the hearing being resumed, counsel for these appellants then proceeded to file with the Minister's office once again a copy of the 1986 will and an affidavit of execution in an attempt to have the Minister rescind his earlier decision and approve the 1986 will. Once again, the Minister's refusal was communicated on November 29, 2001, some two days after the hearing before the Court.
[16] The matter came before Madam Justice Dawson on November 27, 2001 and her decision was rendered on December 20, 2001.
[17] The dispute before Madam Justice Dawson was whether or not the Minister had the authority under sections 42 to 47 of the Act to rescind his previous decision.
[18] Summarizing the facts, Justice Dawson indicated that one of these appellants, John Robert Morin, who had not previously been informed of the approval of the 1954 will remembered having attended with his father at a lawyer's office in 1986 for the purpose of the late Mr. Morin drawing a new will. It was not until a search of various law firms in Edmonton that the new will was discovered in May, 1997, some four months after the transfer of the property had been completed to the widow, in February, 1997. Following the discovery, a letter had been forwarded to the Enoch Cree First Nation Band Council who, in turn, advised the Department of Indian and Norther Affairs of the dilemma.
[19] Madam Justice Dawson was asked to determine whether or not 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 a minimum set aside the 1999 decision; in the alternative, she was asked to determine that the Minister's decision was arbitrary and contrary to law.
[20] Before Madam Justice Dawson counsel for the Minister stated that pursuant to subsection 45(2) of the Act there was no right of appeal under section 47 and that the entire proceeding was improper.
[21] In a very lengthy and learned decision Madam Justice Dawson determined that subsection 42(1) of the Act conferred on the Minister "all jurisdiction and authority in relation to matters and causes testamentary". This, she went on to state, obviously meant that he held the power in matters and causes relating to the grant and revocation of probate of wills and of administration and incidental matters.
[22] She went on to state at paragraph 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.
[23] At paragraph 54, she wrote 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 regarding matters and causes testamentary and concluded that the appeal was properly brought under section 47 of the Act.
[24] At paragraph 61, she stated as follows:
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.
[25] She continued that the Minister had an obligation to have at least considered whether the will was a valid testamentary document. She then analysed the reasons given by the Minister in rejecting the approval of the 1986 will. She discounted the delay outright; the existence of discretion was insufficient to support the decision; rejected the Department's allegation that it had met its fiduciary duty, particularly since no enquiry was directed into the existence of any testamentary intent.
[26] She concluded that the Minister's decision of February 23, 1999 should be set aside.
[27] She did comment that the November 29, 2001 decision was not before her for determination but that it is the basis for the present appeal.
[28] The Rule 369 motion brought before me by these appellants, as I stated earlier, sought a direction with respect to the contents of the appeal book and other directions with respect to the production of documents by the Minister. It also sought an Order directing an Alberta hospital to produce certain records with respect to the testator's stay in an institution in the years 1953 and 1954; as well it alluded to new grounds of appeal, that of contesting the testator's capacity as of March 10, 1954.
[29] Since the final two items raised in the Notice of Motion, that of the production by an Alberta hospital and an amendment to the notice of appeal challenging the capacity of the testator as of March, 1954, were not before the Minister, they cannot and should not be included in the appeal. Accordingly, they are hereby dismissed.
[30] It is evident from the reasons written by Dawson J. in her decision of December 20, 2001, that the issues were exactly the same which are raised with respect to the November 29, 2001 decision. It has already been disposed of; Madam Justice Dawson's decision was not appealed and I suspect that a similar result could be expected if this matter was to be fully debated again before this Court.
[31] The reason why I suggested a meeting in Edmonton with all counsel was because I was of the view that this entire matter could end up being a waste of the Court's time. I turned my mind to the issue of the Minister's approval of the 1986 will and the disposition of the testator's assets as directed; in his second will he left his entire estate to his surviving children and totally disinherits his spouse Lottie Charlotte Morin who had survived him. I explained to counsel acting for these appellants that even if he was successful in processing the second will, the widow or her estate would certainly dispute the disposition of the assets as determined in the 1986 will; as Madam Justice Dawson so clearly expressed in paragraph 49 of her decision, any resulting dispute historically would end up in the superior court of the Province as it would be the proper forum for resolution of any further issues.
[32] My research indicates that though the testator attempted to disinherit the surviving spouse in the 1986 will, the applicants would be faced in the Alberta courts with an attack under the Dower Act, the Family Relief Act and other statutory provisions relating to the devolution of estates. I tried to instruct counsel of the practical outcome that would enure from the Minister's decision to approve the second testamentary document.
[33] As I see it, another problem arises in this particular appeal. The son who presently holds the certificate of occupancy, Sandy Terry Morin, is not a party to these proceedings and has as great an interest as any of the respondents who are parties.
[34] I gathered from the meeting that took place in Edmonton on June 18, 2002 with counsel present, that the superior courts of Alberta have already ordered that the $20,000.00 initially held in trust by the Band Council has now been ordered distributed to Sandy Terry Morin. I also concluded from the conversations that counsel for the Department was prepared to recommend that the Minister alter his decision in light of the Reasons for Order and the Order of Madam Justice Dawson issued December 20, 2001.
[35] Consequently, I suggested that counsel seriously consider entering into settlement negotiations.
[36] If the matter cannot be settled amicably, I hereby order that:
1. The son, Sandy Terry Morin, who presently holds the certificate of occupancy shall be made a party respondent to this appeal.
2. Pursuant to Rule 317 of the Federal Court Rules, the Minister shall forward all material relevant to this appeal that is in his possession to the appellants by July 17, 2002.
3. The Court will not entertain in any way an attack on the testator's capacity with respect to the execution of the 1954 will.
4. The appeal books shall consist of those documents mentioned in items A to Q as outlined in the initial Notice of Motion.
5. The appeal books should be filed with the court and served by July 31, 2002.
6. All respondent parties shall file and serve their reply to the appeal books by August 20, 2002.
7. The appellants may file a reply by September 1, 2002.
8. The matter shall proceed peremptorily at Edmonton on the regular motions' day, Wednesday, September 11, 2002.
JUDGE
OTTAWA, Ontario
June 25, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-132-02
STYLE OF CAUSE: John Robert Morin et al v. Her Majesty the Queen et al
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: June 18, 2002
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE ROULEAU
DATED: June 26, 2002
APPEARANCES:
Mr. Nathan Whitling FOR APPELLANTS
Ms. Balji Rattan FOR RESPONDENT HMTQ
Mr. William Glabb FOR RESPONDENT Alex Peter Morin
SOLICITORS OF RECORD:
Parlee McLaws FOR APPELLANTS
Morris A. Rosenberg
Deputy Attorney General
of Canada FOR RESPONDENT HMTQ
Mr. W.P. Glabb FOR RESPONDENT Alex Peter Morin
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