Docket: T-1878-16
Citation:
2017 FC 1116
Ottawa, Ontario, December 7, 2017
PRESENT: The
Honourable Madam Justice McVeigh
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BETWEEN:
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WILLIAM THORNE
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Appellant
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and
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HER MAJESTY THE
QUEEN IN RIGHT OF CANADA, as represented by the MINISTER OF INDIGENOUS AND
NORTHERN AFFAIRS CANADA, MARILYN STACY PAGE in her capacity as Executor for
the estate of Eugene Thorne deceased, MARILYN STACY PAGE in her capacity as
Executor of the estate of Roberta Tracy Page deceased, MARILYN STACY PAGE,
CURTIS WILLIAM THORNE, and CLIFFORD PHILIP THORNE
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Respondents
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JUDGMENT AND REASONS
I.
Introduction
[1]
When the Minister of Indigenous and Northern
Affairs Canada [respectively Minister and INAC] retained jurisdiction of Eugene
Thorne’s testamentary matters and approved his will, the Minister did so
despite allegations of duress, undue influence, lack of capacity, and hardship.
Eugene Thorne’s son, William Thorne, appealed the Minister’s decision to the
Federal Court pursuant to section 47 of the Indian Act, RSC 1985, c I-5
[Indian Act], which means he must show the Minister’s decision is
unreasonable, or breached procedural fairness. Because the Minister considered
all the relevant evidence and interpreted the Indian Act in a manner
consistent with Parliament’s intent, this Court finds the Minister’s decisions
were reasonable and procedurally fair. I will dismiss this appeal for the
reasons that follow.
[2]
Eugene Thorne was an “Indian” within the meaning
of the Indian Act and ordinarily resident on the Cowichan Indian Reserve.
He had three children: William Thorne [the Appellant], Roberta Tracy Page (who
pre-deceased Eugene Thorne), and Eugene Thorne Jr. Eugene Thorne also had three
grand-children (all children of Roberta Tracy Page): Marilyn Stacy Page (now Marilyn
Stacy Alpine), Curtis William Thorne, and Clifford Philip Thorne.
[3]
Prior to his passing, Eugene Thorne wrote two
wills. In his will written on February 18, 2002 [the 2002 Will], Eugene left
all his possessions to the Appellant, and named him the executor of the estate.
In Eugene Thorne’s most recent will written on January 24, 2011 [the 2011 Will],
the Appellant received nothing. The beneficiaries in the 2011 Will are: Roberta
Page, Marilyn Stacy Page, Curtis William Thorne, and Clifford Philip Thorne. The
executrix named in the 2011 Will is Marilyn Stacy Page. Eugene Thorne wrote the
2011 Will approximately 8 months after suffering a stroke on May 19, 2010. The
stroke left him partially disabled and requiring physical assistance.
[4]
Eugene Thorne was 87 years old when he died on
January 30, 2016. On March 18, 2016 the Appellant wrote to INAC objecting to
the 2011 Will on the basis of duress, undue influence, testamentary capacity, and
hardship. He asked for the Minister to transfer the matter to the Supreme Court
of British Columbia [BCSC].
[5]
On April 29, 2016, INAC responded to the
Appellant and provided him with a Request for Consent to a Transfer of
Jurisdiction form within which to make his transfer request. On May 9, 2016,
the Appellant submitted this form to the INAC.
[6]
On June 14, 2016, Marilyn Stacy Page objected to
the transfer request, and provided affidavit evidence to INAC of Eugene
Thorne’s testamentary capacity at the time of the 2011 Will. The evidence included
a letter from Eugene Thorne’s doctor dated June 13, 2016, which stated the
doctor’s belief “that if [Eugene Thorne] had signed a
will during the interval in question he would’ve had clear understanding of its
content.” An estimate of the limited value of the estate was also
submitted to INAC at this time.
[7]
On July 12, 2016, INAC confirmed the Minister
would retain jurisdiction. The Minister refused to transfer jurisdiction to the
BCSC because no evidence was submitted “in regard to
allegations of undue influence or hardship.” INAC also explained it received
“evidence that Eugene Thorne had testamentary capacity
at the time the Will was signed.” The letter further advised that the
Minister intended to approve the 2011 Will.
[8]
As a result, on July 13, 2016, the Appellant
requested the Minister postpone the will approval until the Appellant submitted
evidence. On July 14, 2016, the Appellant submitted an affidavit outlining his
concerns, including why he felt his father lacked testamentary capacity at the
time the 2011 Will was executed. He also attached a letter from Eugene Thorne’s
former physician, dated March 4, 2016. The letter stated that after the stroke
Eugene Thorne “had a marked aphasia which left him
unable to express himself verbally. Communication from that time on was extremely
difficult as his speech was very limited.”
[9]
On August 8, 2016, INAC explained that the
Appellant’s evidence was premature— the evidence he provided related to will
voidance under section 46 of the Indian Act rather than its approval
under section 45. INAC explained that evidence of the factors under section 46
of the Indian Act was unnecessary unless the Minister approved a will.
INAC then invited the Appellant to submit evidence that did not relate to
section 46.
[10]
On August 22, 2016 and September 6, 2016, the
Appellant wrote to INAC pointing to evidence of Eugene Thorne’s incapacity and
again requested that the Minister transfer jurisdiction to the BCSC.
[11]
On September 19, 2016, INAC approved the 2011 Will,
and appointed Marilyn Stacy Page as executrix. An explanatory email was sent to
William Thorne on September 29, 2016, advising that the Minister had approved the
2011 Will because “insufficient evidence was provided
to warrant a determination that the Will not be approved pursuant to Section 45
of the Indian Act.”
[12]
On November 4, 2016, the Appellant appealed the
Minister’s decision to the Federal Court pursuant to section 47 of the Indian
Act.
[13]
The Applicant raises the following issues:
A.
Did the Minister misunderstand the applicable
law, and in particular the basis for approval of a will under section 45 of the
Indian Act?
B.
Did the Minister breach a duty of procedural
fairness to the Appellant by refusing to refer the matter to the Supreme Court
of British Columbia?
IV.
Standard of Review
[14]
I rely on my determination in Longboat v
Canada (Attorney General), 2013 FC 1168 [Longboat], aff’d 2014 FCA
223, and find that the appropriate standard of review to the Minister’s
discretionary decisions in matters of an Indian’s will is reasonableness.
[15]
Issues of procedural fairness are reviewed on a
standard of correctness (Canada (Minister of Citizenship and Immigration) v Khosa,
2009 SCC 12).
V.
Analysis
A.
Did the Minister misunderstand the applicable
law, and in particular the basis for approval of a will under section 45 of the
Indian Act?
[16]
Section 45 and 46 of the Indian Act is as
follows:
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Wills
Indians
may make wills
45 (1)
Nothing in this Act shall be construed to prevent or prohibit an Indian from
devising or bequeathing his property by will.
Form of
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.
Probate
(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.
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Testaments
Les
Indiens peuvent tester
45 (1) La
présente loi n’a pas pour effet d’empêcher un Indien, ou de lui interdire, de
transmettre ses biens par testament.
Forme de
testaments
(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.
Homologation
(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.
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Minister may declare will void
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.
Where will declared void
(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.
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Le ministre peut déclarer nul
un testament
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.
Cas de nullité
(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.
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[17]
The Appellant relies on Johnson v Pelkey,
(1997) 17 ETR (2d) 242 (BCSC) [Johnson], to support the position that the
Minister should have—and failed to—assess the true intention of Eugene Thorne
prior to approving the 2011 Will. He argues that the Minister confused this
test with that contained in section 46 of the Indian Act. According to the
Appellant, the Minister ignored evidence that Eugene Thorne was unable to
communicate due to his stroke and that the 2011 Will did not reflect his true
intentions. Further, he says that the Minister had no evidence from the
witnesses to the 2011 Will or the circumstances under which he executed that
will. The Appellant submits this case is similar to Dunsmuir v New Brunswick,
2008 SCC 9 [Dunsmuir] in that the Minister did not even consider the
common law rules. Accordingly, the Appellant argues that the 2011 Will should
be set aside.
[18]
The Appellant submits that section 45 of the Indian
Act creates an obligation on the Minister to assess the true intention of
the testator prior to approving an Indian’s will. He submits this is an
exercise which the Minister should conduct irrespective of whether the testator
had testamentary capacity. The Appellant’s position is that section 46 comes into
play when the will is approved; is a challenge to the approval; and has nothing
to do with a separate section 46 application. He states that testamentary intent
and testamentary capacity are separate legal concepts.
[19]
Justice Dawson in Morin v Canada, 2001
FCT 1430 at paragraphs 45-54 [Morin], discusses and breaks down the
jurisdiction that was conferred on the Minister and what Parliament intended to
be the superior court’s jurisdiction. This is an instructive decision, and when
Morin is reviewed it is clear that the Minister has the power to transfer
a particular file to the BCSC, approve a will, and to void a will.
[20]
In the case before me, the Minister recognized
that the discretion to transfer jurisdiction existed, but did not exercise this
discretion. The Minister’s reasons explain that INAC retained jurisdiction
because the Appellant did not support his allegations with any evidence. At the
time the Minister made the decision to retain jurisdiction, the only evidence submitted
was evidence from the Respondent, Marilyn Stacy Page. Her submissions included independent
evidence from Eugene Thorne’s former family physician which spoke directly to Eugene
Thorne’s cognitive status after his May 2010 stroke.
[21]
Given the limited resources of the estate, it
was reasonable for the Minister to decide to retain jurisdiction to prevent the
estate from being spent on litigation when no evidence was provided to support
the Appellant’s allegations, and given that the parties who objected to the
transfer did provide medical evidence from his doctor of capacity.
[22]
The Minister then went on to decide whether the
2011 Will should be approved under section 45 of the Indian Act. Before
making this decision, and at the Appellant’s request, the Minister allowed the Appellant
further time to submit evidence to support his argument that the 2011 Will
should not be approved. The Appellant did submit evidence, including an
affidavit and a doctor’s letter, but the Minister explained this evidence related
to a section 46 will voidance application and not the current issue before him
(whether to approve the 2011 Will under section 45 of the Indian Act).
[23]
Whether the Minister reasonably decided that a
section 45 will approval is separate from a section 46 will voidance is a
question of whether the Minister reasonably interpreted the enabling statute.
[24]
To determine whether the Minister reasonably
interpreted the enabling statute, I again turn to Longboat, which
explained that the Indian Act creates a special regime for the
administration of the estates of Indians under sections 42 and 43 of the Indian
Act. Section 45 does not grant the Minister any powers. The Minister’s
powers to approve an Indian’s will under section 45 are obtained under section
42.
[25]
This regime is important because Parliament also
provided that sections 46 and 42 are separate grounds for appeal to the Federal
Court under section 47 of the Indian Act. Thus, Parliament expressly
created section 46 of the Indian Act as a distinct challenge to an Indian’s
will—a challenge distinct from an approval under section 45 pursuant to section
42. When creating this separate section, it could not have been Parliament’s
intent to impose redundancy on the Minister to consider section 46 factors both
prior to will approval pursuant to sections 45 and 42 of the Indian Act,
and later in a section 46 voidance application.
[26]
I find the Minister reasonably interpreted the Indian
Act to mean that issues under section 46 are appropriately addressed
in a separate application to void a will if the Minister first approves a will.
[27]
The Minister’s decision to approve the 2011 Will
was a discretionary decision. Longboat explained that, when reviewing
discretionary decisions in matters of an Indian’s will, the Courts are guided
by the Indian Act itself.
[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 (Tsartlip, above, at para 51; Sandy
Bay Ojibway First Nation Band v. Canada (Minister of Indian & Northern
Affairs), 2004 FCA 229 (F.C.A.), at para 30; Morin, at paras 45-51)
[28]
Looking to the Indian Act itself, the
wording of section 45(2) sets out the four components the Minister must
consider prior to approving a will:
1)
Is the will in writing?
2)
Is the will signed?
3)
Does the will indicate the testator’s wishes or
intentions?
4)
Does the will dispose of property on death?
[29]
The Appellant wants the Court to go behind the
signing of the 2011 Will, as the BCSC did in Johnson. However,
Johnson is distinguishable because the Minister in that case did transfer
jurisdiction to the BCSC for probate, pursuant to section 44 of the Indian
Act. In addition, Johnson involved applications under sections 45
and 46 of the Indian Act. On our facts there has not been a section 46
application to void the will.
[30]
Furthermore, Parliament’s intent was for the Indian
Act to allow for approval of wills with minimal formalities. This is
apparent when section 15 of the Indian Estates Regulations, CRC, c 954
[Regulations] is read together with Indian Act section 45.
Section 15 of the Regulations reads as follows:
Section 15
Any written instrument signed by an Indian
may be accepted as a will by the Minister whether or not it conforms with the
requirements of the laws of general application in force in any province at the
time of the death of the Indian.
[31]
While the Appellant argues that his evidence was
ignored, the Minister’s reasons explain the 2011 Will was approved because the
Appellant submitted insufficient evidence pertaining to the approval decision
under section 45. The Appellant was given every opportunity to participate in the
process and his submissions were considered. The Minister reviewed all the
evidence, which is apparent as INAC told the Appellant his evidence pertained
to a section 46 voidance application. Since it would be redundant to consider
section 46 factors in a will approval decision, the Minister considered only
the relevant evidence while deciding whether to approve the 2011 Will under
section 45 of the Indian Act.
[32]
I find that the Minister’s decision was
reasonable. I do not find that the Minister misapplied the law and do find that
sections 45 and 46 of the Indian Act are separate processes or steps.
B.
Did the Minister breach a duty of procedural
fairness to the Appellant by refusing to refer the matter to the Supreme Court
of British Columbia?
[33]
Sections 4(3), 44(1) and (2) reads as follows:
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Application of Act
4 (1) A reference in this Act to
an Indian does not include any person of the race of aborigines commonly
referred to as Inuit.
Act may be declared inapplicable
(2) The Governor in Council may by
proclamation declare that this Act or any portion thereof, except sections 5
to 14.3 or sections 37 to 41, shall not apply to
(a) any Indians or any group or
band of Indians, or
(b) any reserve or any surrendered
lands or any part thereof,
and may by proclamation revoke any
such declaration.
Authority confirmed for certain
cases
(2.1) For greater certainty, and
without restricting the generality of subsection (2), the Governor in Council
shall be deemed to have had the authority to make any declaration under
subsection (2) that the Governor in Council has made in respect of section
11, 12 or 14, or any provision thereof, as each section or provision read
immediately prior to April 17, 1985.
Certain sections inapplicable to
Indians living off reserves
(3) Sections 114 to 117 and,
unless the Minister otherwise orders, sections 42 to 52 do not apply to or in
respect of any Indian who does not ordinarily reside on a reserve or on lands
belonging to Her Majesty in right of Canada or a province.
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Application de la loi
4 (1) La mention d’un Indien, dans
la présente loi, exclut une personne de la race d’aborigènes communément
appelés Inuit.
Pouvoir de déclarer la loi
inapplicable
(2) Le gouverneur en conseil peut,
par proclamation, déclarer que la présente loi, ou toute partie de celle-ci,
sauf les articles 5 à 14.3 et 37 à 41, ne s’applique pas :
a) à des Indiens ou à un groupe ou
une bande d’Indiens;
b) à une réserve ou à des terres
cédées, ou à une partie y afférente.
Il peut en outre, par
proclamation, révoquer toute semblable déclaration.
Confirmation de la validité de
certaines déclarations
(2.1) Sans que soit limitée la
portée générale du paragraphe (2), il demeure entendu que le gouverneur en
conseil est réputé avoir eu le pouvoir de faire, en vertu du paragraphe (2),
toute déclaration qu’il a faite à l’égard des articles 11, 12 ou 14, ou d’une
disposition de ceux-ci, dans leur version antérieure au 17 avril 1985.
Certains articles ne
s’appliquent pas aux Indiens vivant hors des réserves
(3) Les articles 114 à 117 et,
sauf si le ministre en ordonne autrement, les articles 42 à 52 ne
s’appliquent à aucun Indien, ni à l’égard d’aucun Indien, ne résidant pas
ordinairement dans une réserve ou sur des terres qui appartiennent à Sa
Majesté du chef du Canada ou d’une province.
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Courts may exercise
jurisdiction with consent of Minister
44 (1) The court that would have
jurisdiction if a deceased were not an Indian may, with the consent of the
Minister, exercise, in accordance with this Act, the jurisdiction and
authority conferred on the Minister by this Act in relation to testamentary
matters and causes and any other powers, jurisdiction and authority
ordinarily vested in that court.
Minister may refer a matter to
the court
(2) The Minister may direct in any
particular case that an application for the grant of probate of the will or
letters of administration of a deceased shall be made to the court that would
have jurisdiction if the deceased were not an Indian, and the Minister may
refer to that court any question arising out of any will or the
administration of any estate.
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Les tribunaux peuvent exercer
leur compétence, avec le consentement du ministre
44 (1) Avec le consentement du
ministre, le tribunal qui aurait compétence si la personne décédée n’était
pas un Indien peut exercer, en conformité avec la présente loi, la compétence
que la présente loi confère au ministre à l’égard des questions
testamentaires, ainsi que tous autres pouvoirs et compétence ordinairement
dévolus à ce tribunal.
Le ministre peut déférer des
questions au tribunal
(2) Dans tout cas particulier, le
ministre peut ordonner qu’une demande en vue d’obtenir l’homologation d’un
testament ou l’émission de lettres d’administration soit présentée au
tribunal qui aurait compétence si la personne décédée n’était pas un Indien.
Il a la faculté de soumettre à ce tribunal toute question que peut faire
surgir un testament ou l’administration d’une succession.
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[34]
The Appellant’s arguments on procedural fairness
come down to arguing for a specific procedure. The procedure the Appellant
seeks is for the Minister to transfer jurisdiction to the BCSC as provided for
in section 44 of the Indian Act. The Appellant’s arguments then move
away from procedural fairness arguments and turn into arguments for equality under
section 15 of the Canadian Charter of Rights and Freedoms, Part 1 of the
Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK),
1982, c11 [Charter].
[35]
The Appellant argues that it is not fair or
proportionate to deal with the wills of Indians ordinarily resident on reserve
differently from those who are not ordinarily resident on reserve. The Appellant
argues this matter cries to be transferred to the BCSC as there were doctor’s letters
from both sides, and so a court was needed to balance two sets of evidence. In
addition, the Appellant argued that to determine testamentary intent, the 2011
Will must be proved in solemn form in a superior court; it required handwriting
analysis and all the other expertise that the BCSC brings in a probate estate
matter.
[36]
The Appellant’s position is that he is not
getting equal benefit of the law under section 15 of the Charter since
he is being treated differently under the Indian Act. The Appellant
submits that the BCSC would be the appropriate forum had his father not been ordinarily
resident on reserve, and the 2011 Will therefore would have received the BCSC’s
expertise. He says this is neither fair nor proportionate and this Court should
therefore direct that jurisdiction over the 2011 and 2002 wills be transferred
to the BCSC.
[37]
The Charter challenge is couched in the
language of procedural fairness. The Appellant says he is not challenging the
validity of the legislation, but argues the legislation is discriminatory. I
note that there were no Charter notices served as required under Notice
of Constitutional questions: Federal Courts Act RSC, 1985, c F-7 at section
57; Federal Courts Rules, SOR/98-106 at rule 69 and form 69. However,
the Appellant says he knows the legislation is valid and instead argues that
since the Indian Act is discriminatory I should be sensitive to this
unfair treatment.
[38]
I find that, even if there had been compliance
with the Notice of Constitutional questions, it is unnecessary for this Court
to consider whether subsection 4(3) of the Indian Act is discriminatory
according to section 15 of the Charter. There are two reasons for this.
First, in Longboat—a decision upheld by the Federal Court of Appeal—this
Court confirmed that the testamentary provisions of the Indian Act are
constitutionally valid at para 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).
[39]
Second, the onus is on the Appellant to
establish his section 15 Charter right is breached (Kahkewistahaw
First Nation v Taypotat, 2015 SCC 30 at para 21). In this case, the
Appellant did not identify an enumerated or analogous ground upon which the law
creates a distinction, nor has he demonstrated how this distinction is
discriminatory. Further, the Appellant has suffered no inequality and has been
treated in the same manner as each of the Respondents in this matter.
[40]
With respect to the Appellant’s argument on
procedural fairness, he was provided with numerous opportunities to make
submissions which were fully and fairly considered.
[41]
Parliament was clear in its intention that this
is the way that Indian wills and estates are to be dealt with and I find that
the Minister was reasonable in the treatment of this estate and will.
[42]
I find the decision to be reasonable and that
there is no procedural unfairness.
[43]
The appeal is dismissed.
VI.
Costs
[44]
Costs were sought by each party and I asked the
parties for argument and to provide the Court with a lump sum figure. The Appellant
indicated that a lump sum award in the amount of $3,000.00 would be appropriate
for costs. Counsel for the Respondent Attorney General of Canada indicated they
were seeking costs. The counsel representing the remaining Respondents
indicated that they did not have instructions to propose a lump sum. No bill of
costs was filed by either of the Respondents. I will award costs to the Respondents
to be paid by the Appellant in the total amount of $1,000.00 to be divided $500
to Canada and the remaining $500.00 to be divided equally amongst the remaining
Respondents.
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