Digests

Morin v. Canada

T-458-99

2001 FCT 1430, Dawson J.

20/12/01

27 pp.

Appeal pursuant to Indian Act, s. 47 from Minister's decision Indian and Northern Affairs Canada (INAC) would neither approve will of Adophus Morin, dated December 17, 1986 nor appoint executor named under that will, nor redistribute estate assets according to that will--On March 10, 1954 Adophus Morin executed will naming wife sole beneficiary of all real, personal property, and appointing Indian Superintendent, Edmonton Indian Agency, as executor of estate--Morin died in 1996--Survived by wife, 11 children--Michael Sidon, Manager of Estates and Trusts for Department of Indian and Northern Affairs approved 1954 will, renounced appointment as executor, appointed Peter Morin to administer estate--In 1997 testator's interest in quarter section of land on reserve transferred to wife, approved on behalf of Minister--In 1998 wife transferred land to third person who sold land in September to Enoch Cree Nation for $20,000--In November 1998, before consideration paid for land, Enoch Cree Nation receiving letter from lawyer advising of more recent will--Forwarding letter, copy of 1986 will to Department--Mr. Sidon requesting assistance from INAC's Ottawa office--Advised that INAC would not approve 1986 will on grounds: family members agreed to approve 1954 will; purported second will brought to INAC's attention two years after land transferred to wife; allegations of testamentary incapacity when 1986 will made; Minister having discretion to accept any will meeting requirements of s. 45(2); Department met fiduciary duty--Original appeal hearing adjourned, order issued giving appellants leave to file fresh evidence on question of valid execution of will i.e. original second will required to be filed--Pursuant to that order, some new evidence adduced, although not filed before resumed hearing of appeal--New evidence included affidavit of testator's son as to circumstances surrounding making, finding of second will, affidavit of representative of INAC--Not original, but certified true copy of 1986 will, filed--No evidence as to execution of 1986 will put before Court--Appellants arguing: will valid on its face; Minister acted pursuant to Indian Act, s. 46(1) authority so that Court had jurisdiction under s. 47 to either pronounce in favour of 1986 will, or at least set aside 1999 decision; Minister's decision failing to find 1986 will valid made without adequate facts or information and arbitrary and contrary to law--Respondent objecting appeal now moot because Minister made, or would be making new decision, substance of which that decision unchanged--No advance notice or evidence given to Court as to making of decision or fact Crown would be asserting appeal now moot--Appeal allowed--(1) Whether proceeding moot--Principle of mootness applies where decision will not have effect of resolving some controversy affecting rights of parties--Onus of establishing matter or issue moot resting on party asserting mootness--Minister not establishing determination of issues will have no practical effect on parties--Dispute over right of appellants to appeal such decision not academic--Moreover, even if moot, Court retaining discretion to hear, determine matters--Discretion to be exercised "judicially", with regard to principles articulated in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342--Appellants maintaining direct interest in having scope of appeal rights under s. 47 determined and in challenging propriety of initial decision; little economy achieved in terminating proceedings on basis of mootness after Court already hearing case; in view of Minister's position on substantive issues raised and reliance upon s. 45(2), controversy sufficiently live so as to conclude determination of issues raised in accord with Court's proper law-making function--Even if issues moot, Court exercising discretion to determine matters fully--(2) S. 45(2) permitting Minister to accept as will any written instrument signed by Indian in which indicating intention with respect to disposition of property on death--S. 46(1) permitting Minister to declare will void--S. 47 providing for appeal from Minister's decision made in exercise of authority conferred under ss. 42, 43, 46--Minister's assertion decision made under s. 45(2) would immunize decision from review on appeal pursuant to s. 47--Appellants asserting decision made under s. 46--By conferring in s. 42 jurisdiction upon Minister with respect to matters and causes testamentary, Parliament conferring jurisdiction equivalent to jurisdiction with respect to grant, revocation of probate of wills and of administration, together with jurisdiction over matters incidental thereto--Minister thus having jurisdiction similar to that exercised by surrogate or probate courts--Principal duties of court of probate to decide whether document entitled to probate as testamentary instrument--To determine whether document testamentary instrument requiring conclusion about testamentary intent--This interpretation of s. 42 consistent with powers reposed in Minister pursuant to s. 43, which makes clear Minister may do such things as appoint, remove executors, administrators, authorize them to execute terms of wills--Superior court jurisdiction largely encompassed in s. 46(1)--Together ss. 42, 43, 46 reposing in Minister all authority over wills and their probate in respect of Indians when ordinarily resident on reserves--S. 45 not conferring power on Minister but making express rights of Indians--Source of Minister's jurisdiction to accept written instrument as will contained in s. 42, which confers jurisdiction over matters, causes relating to grant, revocation of probate of wills--Parliament intended in s. 47 to grant full right of appeal in respect of all decisions made in exercise of jurisdiction relating to matters, causes testamentary, as well as decisions declaring will void--No right of appeal conferred in respect of s. 45, no authority conferred pursuant to that section--Interpretation avoiding anomaly that decisions relating to matters, causes testamentary, including appointment of executor, could be appealed but decision document not indicating testamentary intent could not--In determining 1986 will would not be approved, and executor named under will would not be appointed, and executor under 1986 will could not distribute assets according to that will, Minister exercising powers conferred by s. 42--Appeal properly brought under s. 47--(3) As no privative provision, nature of decision as to whether 1986 will evidences testamentary intent substantially one of fact, purpose of relevant provisions of Indian Act to balance individual rights, and no evidence of any particular expertise on part of decision maker, appropriate standard of review somewhere between reasonableness simpliciter and patent unreasonableness--Difference between two standards lies in obviousness of defect--If defect obvious on face of tribunal's reasons, then decision patently unreasonable--As decision found to be patently unreasonable, not necessary to be more precise concerning standard of review--As notice of 1986 will coming to Minister from Enoch Cree Nation, i.e. not someone promulgating will, open to Minister to have had no regard to it--But by choosing to direct inquiry into will, Minister obliged to consider whether will valid testamentary document--INAC never sought production of original 1986 will--Minister's reasons silent on issue of whether document valid testamentary paper--As to reasons for not giving effect to 1986 will: family members cannot be held to agreement when unaware of existence of later will; delay proper factor for Minister to have considered; allegation of lack of testamentary capacity not supported by evidence; existence at law of discretion by itself insufficient to support decision; unsupported conclusion department met fiduciary duty not relevant reason for refusing to give effect to document proffered as testamentary instrument, particularly where no inquiry directed into existence of any testamentary intent--Delay by itself not sufficient ground for refusing inquiry into whether later will should be admitted to probate--In absence of relevant inquiries, delay of two years insufficient basis on which to ground reasonable decision-- Once Minister decided to inquire into 1986 will, by relying upon delay and other grounds, and by failing to inquire as to circumstances surrounding execution of 1986 will, Minister committed reviewable error--Indian Act, R.S.C., 1985, c. I-5, ss. 42, 43, 45, 46, 47.