Rice v. Canada (Ministry of Indian and Northern Affairs), docket T-2753-96

                                         T-2753-96

BETWEEN:              HELEN RICE

Appellant

AND:

MINISTRY OF INDIAN AND NORTHERN

AFFAIRS CANADA

Respondent

AND:

LUCILLE McGREGOR PENNY

-and-

THERESA McGREGOR LAGACE

-and-

LEO McGREGOR

Mis en cause

REASONS FOR ORDER

NADON, J:

The appellant's mother, Aline Vanier McGregor, died on May 17, 1996. Prior to her death, Mrs. McGregor executed a will and two codicils. The will is dated July 7, 1982 and the codicils are dated respectively September 23, 1991 and December 13, 1992. Pursuant to the codicil dated December 13, 1992 Mrs. McGregor purported to leave to her son Leo McGregor village lot 693 of Kahnawake Indian Reserve no. 14, situated in the Province of Quebec.

On October 4, 1996 the Minister of Indian Affairs and Northern Development (the "Minister"), pursuant to section 45 of the Indian Act (the "Act"), approved Mrs. McGregor's will and codicils.

         On December 16, 1996, the appellant filed a notice of appeal pursuant to section 47 of the Act. On December 19, 1996, the appellant filed a motion for an interlocutory injunction. On March 17, 1997, the Attorney General for Canada, acting on behalf of the Minister, brought an application to have the appeal dismissed on the ground that the appeal was premature.

         The appellant, by her appeal, attacks the decision rendered by the Minister on October 4, 1996. The grounds of attack as they appear, inter alia, from paragraphs 33, 34, 35, 36 and 37 of the notice of appeal are the following:

33.      The approval of the codicil dated December 13th, 1992, creates confusion since as a codicil it only purports to transfer one-half of the possession of lot 693 Kahnawake Indian Reserve no. 14, Province of Québec, plan no. 56294 upon the death of the deceased;

34.      The codicils were executed under duress or undue influence since Leo McGregor had threatened the deceased with leaving her home;

35.      The acceptance of the said codicils would deny the Appellant of the said lot 693 and therefore would cause her haidship and is also inequitable;

36.      The terms of the said codicils are so vague, uncertain and capricious (when considering her life long expressed desire) that proper administration and equitable distribution of the estate of the deceased is made impossible;

37.      The codicil dated December 13th, 1992 is in fact a gift mortis causas and is therefore null pursuant to section 1806 and following of Civil Code of Québec;

                

         Sections 45, 46 and 47 of the Act provide that:

45.(1) Nothing in this Act shall be construed to prevent or prohibit an Indian from devising or bequeathing his property by will.

(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.

(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 R.S., R.S., c. I-6, s. 45.

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.

(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. R.S., c. I-6, s. 46.

47. A decision of the Minister made in the exercise of the jurisdiction or authority conferred on him by sections 42, 43 or 46 may, appealed by any person affected thereby to the Federal Court, if the amount in controversy in the appeal exceeds five hundred dollars of if the Minister consents to an appeal. R.S., c. I-6, s. 47; R.S., c. 10 (2nd Supp.), ss. 64, 65.

         It cannot be disputed that no appeal lies from a decision rendered under section 45 of the Act. Under section 47, the appellant can only appeal a decision made by the Minister pursuant to sections 42, 43 and 46 of the Act. Consequently, any challenge to a decision rendered under section 45 must be made by way of judicial review proceedings under section 18 of the Federal Court Act. No such application has, so far, been filed.

         Thus, any challenge as to the form of the written documents by which Mrs. McGregor purported to leave her property, cannot be part of an appeal under section 47 of the Act. Clearly, the grounds which appear under paragraphs 33 and 37 of the notice of appeal cannot be part of an appeal under section 47.

         With respect to the grounds of challenge which appear under paragraphs 34, 35 and 36 of the notice of appeal, these grounds fall clearly under section 46 of the Act. The Attorney General's position, supported by the affidavit of Jean-Guy Fortier, is that the Minister has not yet rendered a decision under section 46 and thus that the appellant's appeal is premature. I agree.

         The Minister has, no doubt, rendered a decision under section 45 of the Act but has yet to make a decision under section 46. When such a decision is made, the appellant shall then be entitled to appeal, should the decision not be favourable.

         As a result, I must allow the Attorney General's application. The appellant's appeal shall be dismissed as shall be dismissed her motion for an interlocutory injunction.

         There shall be no Order as to costs.

     Marc Nadon

                                             Judge

MONTREAL, QUÉBEC

May 9, 1997

     FEDERAL COURT OF CANADA

     NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT NUMBER:          T-2753-96

BETWEEN:                  HELEN RICE

                                     Appellant

                     AND:

                     MINISTRY OF INDIAN AND NORTHERN AFFAIRS                      CANADA ET AL

                    

                                     Respondent

PLACE OF HEARING:          Montréal(Québec)

DATE OF HEARING:          May 9^th, 1997

REASONS FOR ORDER BY:      NADON, J.

DATED:                  May 9^th, 1997

APPEARANCES:              Mr. Stephan Fuchs              for the Appellant

                     Ms. Virginie Cantave          for the Respondent

                     Ms. Marie-Andrée Mallette          for the Mis en cause

SOLICITORS OF RECORD:      STEPHAN FUCHS

                     Châteauguay (Québec)          for the Appellant

                     Mr. George Thomson

                     Deputy Attorney General of Canada

                     Ottawa (Ontario)              for the Respondent

                     MARIE-ANDRÉE MALLETTE     

                     Châteauguay (Québec)          for the Mis en cause