Docket: A-425-13
Citation:
2014 FCA 223
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CORAM:
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TRUDEL J.A.
WEBB J.A.
BOIVIN J.A.
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BETWEEN:
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MARVIN LONGBOAT
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Appellant
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and
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ATTORNEY GENERAL OF CANADA
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AND ESTATE OF CASSIE BOMBERRY
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Respondents
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REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario, on October 7, 2014).
TRUDEL J.A.
[1]
This is an appeal from a decision of the Federal
Court dismissing Mr. Longboat's appeal brought under section 47 of the Indian
Act, R.S.C. 1985, c. I-5 (the Act) of a Ministerial Order (removal order)
removing him as administrator of the estate of his late uncle George Bomberry
who died intestate on May 7, 1994. Section 42 of the Act provides that “all jurisdiction and authority in relation to matters and
causes testamentary, with respect to deceased Indians, is vested exclusively in
the Minister.”
[2]
Mr. Longboat alleges several errors in the
judgment below and seeks an order from this Court reinstating him as
administrator of the estate.
[3]
The gist of his submissions is that McVeigh J. (
Federal Court Judge) did not turn her mind to the test applicable at common law
to the appointment and removal of administrators. Pursuant to this test, two
important considerations must inform the Minister's decision when he chooses to
remove an administrator: the welfare of the beneficiaries and the protection of
the property or assets of the estate. Had the Federal Court Judge assessed the
removal order and the appellant's actions in this light, she would have reached
the conclusion that the Ministerial Order was unreasonable for failing to meet
the threshold imposed by the common law test. There was no clear evidence on
record that the appellant had endangered the estate’s property or caused prejudice to the beneficiaries.
[4]
The appellant explains that part of the estate
includes undivided parcels of land located on reserve. His goal as
administrator, in line with what he sees as the best interests of the land and
the beneficiaries, was to facilitate an orderly and fair partition of the lands
between the heirs to the estate to avoid the problems associated with “fractionation”. It is the appellant's view that “allowing the undivided interests to pass to the beneficiaries
without a suitable partition arrangement would lead to haphazard use or
unfortunate neglect of the property due to the inability of the joint interest-holders
to use the property without unanimous consent” (appellant's memorandum
of fact and law at paragraph 66). The time needed to build a consensus amongst
the heirs and to alleviate family tensions, as well as the death of three of
the beneficiaries, explains why the estate had yet to be settled 16 years after
his uncle’s death.
[5]
Moreover, the appellant argues that he did not
receive from the Minister the support needed to reach an agreement with family
members. He further contends that the Minister breached his rights to
procedural fairness by making the removal order without providing him with
copies of the letters of complaint which formed the basis of the decision.
[6]
The Federal Court Judge reviewed the Minister's
decision on a standard of reasonableness, concluding at paragraph 44 of her
reasons:
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.
[7]
Having carefully considered the record and the
appellant’s oral submissions,
we are in substantial agreement with the Federal Court Judge’s reasons. She carefully assessed the facts
of this case, noting the right of the beneficiaries to be put in possession of
their share of the estate and the length of Mr. Longboat’s administration before his removal,
despite several requests made by the Minister urging the appellant to settle
the estate.
[8]
The Federal Court Judge found that the Minister
had done his best to assist and support the appellant over the course of the
years. The record supports her finding.
[9]
As well, the record shows that during this time
the Minister received several complaints (including one from all but one of the
heirs; see paragraph 33 of the reasons). The Federal Court Judge was satisfied
that Mr. Longboat was well aware of the complainants' concerns.
[10]
It is clear that Mr. Longboat's goal to reach an
agreement with all the heirs as to the use of the lands was the driving force
behind his conduct as administrator. Reaching this agreement was a noble goal
but, at the same time, the legal heirs were not receiving their respective
share of the estate and were unhappy about it. The appellant's main duty as
administrator was to proceed to the distribution of the estate properly and
efficiently. In view of the circumstances described above, it was reasonable
for the Minister to conclude that Mr. Longboat was not discharging his duties
in this manner and to order the appellant's removal as administrator of the estate.
The Federal Court Judge came to that conclusion and we see no reason to
interfere with her judgment.
[11]
As a result, the appeal will be dismissed with
costs.
“Johanne Trudel”
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