Date: 20040513
Docket: T-132-02
BETWEEN:
JOHN ROBERT MORIN, RICHARD WILLIAM MORIN,
FLORENCE MORIN, ISABEL MORIN, JOHN A. MORIN,
AND THERESA MORIN
Appellants
and
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
AND THE MINISTER OF INDIAN AND NORTHERN
AFFAIRS CANADA AND ALEX PETER MORIN in
his capacity as Administrator of the Estate of Adolphus
Morin AND SANDY TERRY MORIN
Respondents
[1] The present application is a statutory appeal of a decision of the Minister of Indian and Northern Affairs ("the Minister") dated November 27, 2001. The subject matter of the appeal concerns powers purportedly exercised by the Minister under s. 42 of the Indian Act with respect to the "probate" of a will and a purported will, each apparently executed by the same person.
[2] The actions of the Minister with respect to the "wills" have been the subject of Reasons for Order and Order by Justice Dawson in Morin v. Canada (Federal Court Docket T-458-99, decision rendered December 20, 2001), and reported at [2001] F.C.J. No. 1936. The uncontested chronology of events, and the terms of the legislation applied in the present appeal are provided in Justice Dawson's decision which should be read for these details.
[3] In her decision, Justice Dawson makes critical findings of law with respect to the legal requirements expected of probate decisions made by the Minister. I agree with the following findings she made in the paragraphs noted:
¶ 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.
...
¶ 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.
...
¶ 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.
...
¶ 71 Moreover, no determination was made as to testamentary capacity. Unsubstantiated and uninvestigated allegations are not a proper basis for dismissing a testamentary document.
[4] With respect to the standard of review to be applied, Justice Dawson found as follows:
¶ 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.
However, given the need for a specific finding on the standard of review as expressed by Chief Justice McLaughlin in Q. v. College of Physicians & Surgeons (British Columbia), [2003] 5 W.W.R. 1, I find it is necessary to add some precision to the finding made by Justice Dawson on this issue.
[5] As for the pragmatic and functional analysis, I accept the argument of Counsel for the Minister that the Minister should be considered a specialized decision-maker on the basis that he or she would be regularly called upon to make probate determinations. Section 42 of the Indian Act places all probate power in the hands of the Minister to exercise authority with respect to persons falling under its jurisdiction, and I accept without proof that to do so is routine. As a result, I find that the appropriate standard of review is patent unreasonableness.
[6] The question is whether the decision of the Minister presently under review is patently unreasonable. The Supreme Court of Canada's decision inCanada Safeway Ltd. v. RWDSU, Local 454, [1998] 1 S.C.R. 1079 requires that, to be found patently unreasonable, a defect in a decision must apparent on its face. Indeed, consideration of the decision under appeal leads me to this conclusion.
[7] As Justice Dawson has found, and with which I completely agree, a probate decision concerning a purported second will must include a determination of its validity. The following is the entire decision provided by the Minister in the present appeal:
Re: Estate of Adolphus Morin
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. (Appeal Book, Vol. I, p. 215)
[8] Counsel for the Respondent argues that the words "testamentary instrument" must be read as saying "valid testamentary instrument". Since the Minister is required by law to make a determination on the validity of the purported will of December 17, 1986, I find it is not possible to "read in" compliance with this requirement when no such determination appears on the face of a decision, such as the one in the present case, which is devoid of reasons.
[9] As a result, I find the Minister's decision to be patently unreasonable.
[10] The question of the award of costs is an important issue in the present appeal.
[11] The decision presently under appeal was made November 17, 2001, but formalized by way of letter dated November 27, 2001 and announced at the opening of oral argument of the appeal of the Minister' decision of February 23, 1999. It is hard to understand why the November 27, 2001 decision would be made prior to gaining the guidance on the law that would result from the disposition of the appeal of the February 23, 1999 decision. Indeed, Justice Dawson made important findings of law which are binding on the Minister. More importantly, by applying these findings, there is a requirement that the November 27, 2001 decision involve a determination of the validity of the purported will of December 17, 1986. The decision of November 27, 2001 does not contain this essential requirement.
[12] In my opinion, the actions of the Minister in rendering the decision under appeal was misguided, and the direct cause of a great deal of wasted time and effort. I find that, from the moment of Justice Dawson's decision was rendered, the Minister was on notice that the decision of November 27, 2001 most likely suffered from a fatal defect. Nevertheless, rather than deal with this problem by way of conceding and arranging for a decision to be made in accordance with the law, for the past two and a half years, the Minister has defended the decision attacked by a most understandable appeal. In my opinion, none of the other parties to this appeal should in any way be held financially responsible for being put through the ordeal of participating in an appeal, the results of which could have been reasonably predicted from the time of Justice Dawson's decision. I award solicitor and client costs accordingly.
ORDER
[13] For the reasons provided, I grant the appeal and set aside the Minister's decision.
[14] I order that the Minister pay the solicitor and client costs of the Appellants, and the Respondents Alex Peter Morin and Sandy Terry Morin.
"Douglas R. Campbell"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-132-02
STYLE OF CAUSE: JOHN ROBERT MORIN et al v. HMTQ et al
PLACE OF HEARING: Edmonton, AB
DATES OF HEARING: October 21, 2003 and May 13, 2004
REASONS FOR ORDER : Campbell, J.
DATED: May 13, 2004
APPEARANCES:
Nathan Whitling and Ian L. Wachowicz FOR APPELLANT
Stephanie Latimer FOR RESPONDENT (HMTQ)
William Glabb FOR RESPONDENT
(ALEX PETER MORIN)
Diana Goldie FOR RESPONDENT
(SANDY TERRY MORIN)
SOLICITORS OF RECORD:
Parlee McLaws LLP
Edmonton, Alberta FOR APPELLANT
Morris Rosenberg, Deputy Attorney General of Canada
Ottawa, Ontario FOR RESPONDENT (HMTQ)
William Glabb Law Office
St. Albert, Alberta FOR RESPONDENT
(ALEX PETER MORIN)
First Street Law Office
Edmonton, Alberta FOR RESPONDENT
(SANDY TERRY MORIN)