Date: 20000609
Docket: T-1783-99
BETWEEN:
MICHAEL FRANCIS and
GORDON FRANCIS
Appellants
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
AS REPRESENTED BY THE MINISTER OF
INDIAN AND NORTHERN AFFAIRS,
Respondent
REASONS FOR JUDGMENT
DUBÉ J :
[1] This appeal, pursuant to section 47 of the Indian Act ("the Act"),1 attacks a decision of William Nye, Manager, Registration, Indian and Inuit Affairs, dated January 26, 1999 wherein Mr. Nye declared that the May 21, 1997 will of Joseph Francis was valid and appointed his daughter Imelda Augustine as executrix with sole responsibility of the administration of the estate.
1. Relevant Facts
[2] The appellants are the son and grandson of the late Joseph Francis. In 1932, the latter acquired land on the Reserve from the Big Cove First Nation, in New Brunswick. He built a home with the assistance of Band Funds and lived there until he moved to a nursing home in 1997.
[3] On March 6, 1996 he made a will appointing his son, the appellant Michael Francis, as executor and divesting all of his estate to him. On May 21, 1997 he made a second will appointing his daughter Imelda Augustine executrix and divesting his home to his younger son John Peter Francis. On February 16, 1998 Joseph Francis died in the nursing home. In July 1998, the appellants obtained the services of a first counsel to probate the 1996 will in the Provincial Probate Court in Moncton, New Brunswick. The will and the grant of probate were forwarded to the Department of Indian Affairs.
[4] The Minister's delegate, Mr. Nye, concluded that the 1997 will superseded the 1996 will. He also determined that the deceased's property in question was not part of his estate as no ministerial certificate had been issued or requested by the Council Band. On January 28, 1999 the appellants obtained the services of a second solicitor who failed to adequately represent them. On February 3, 1999 the appellants retained the services of the present solicitor. On March 15, 1999 the latter requested from Mr. Nye reasons for his decision and questioned his authority to make it. After several such requests, Mr. Nye responded on July 26, 1999.
1. The Two Letters of Mr. Nye
[5] In his letter of January 26, 1999 Mr. Nye wrote that "we have examined the wills dated May 21, 1997 and March 6, 1996 and information regarding the competency of the late Joseph Francis as provided by Imelda Augustine and Michael Francis". He "determined that Michael Francis did not provide conclusive evidence that Joseph Francis was not of sound mind when he signed the latter will dated May 21, 1997 naming Imelda Augustine as executrix". He further stated that "Imelda Augustine has provided information which satisfactorily countered Michael Francis' allegations". He decided that the second will was valid. He also determines that "the first will and the letter's probate in the Provincial Court are invalid".
[6] In my view, this letter constitutes the decision of the Minister.
[7] On July 26, 1999 Mr. Nye finally answered the repeated requests from the appellants' present solicitor. He apologized for the tardiness and replied that under subsection 42(1) of the Act, the jurisdiction and authority in relation to matters testamentary with respect to deceased Indians is vested exclusively in the Minister: "In the case of the granting of probate for a will, that authority is delegated to the undersigned". He added that provinces do not have the authority to grant probate of the will of a deceased Indian, unless the Minister expressly consents in writing. He noted that the evidence produced by the appellants to the effect that Joseph Francis was not medically competent was considered, but he determined that "there was not enough evidence to declare that he lacked testamentary capacity". As to the house in which the deceased lived, it was not an asset of his estate: "It was and remains a band owned house".
[8] This letter, in my view, cannot be considered as a further decision which would be appealable. It is a delayed letter of information in answer to the several requests of the appellants' present counsel.
[9] The dates of these two letters are crucial to the appeal, as section 47 of the Act provides that the decision of the Minister must be appealed within two months from the date of that decision and only if the amount in controversy exceeds five hundred dollars. The appellants only filed their notice of appeal on September 13, 1999 almost eight months after the decision of January 26, 1999. (However, it would be within two months from the July 26, 1999 letter). As to the value of the estate, without the house, it would only be $1.00 according to the executrix in her Application for Approval of Will sworn to on April 22, 19972.
3. Relevant Sections of the Indian Act
[10] Section 45 provides that Indians may make wills. Section 46 stipulates that the Minister may declare a will void and reads as follows:
| 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 in the will, shall be deemed to have lapsed. |
[11] Section 47 provides for an appeal to the Federal Court:
| 47. A decision of the Minister made in the exercise of the jurisdiction or authority conferred on him by section 42, 43 or 46 may, within two months from the date thereof, be appealed by any person affected thereby to the Federal Court, if the amount in controversy in the appeal exceeds five hundred dollars or if the Minister consents to an appeal. |
| (my emphasis) |
4. Jurisdiction of the Court
[12] The respondent submits that this Court is without jurisdiction to hear this appeal on the grounds that the appeal was not filed within two months from the date of the decision and that the amount in controversy did not exceed five hundred dollars.
[13] In the case at bar, the decision that the appellants seek to appeal was communicated to them by letter dated January 26, 1999. The appellants showed that they received notice of that decision at least on January 28, 1999, the day they retained the services of their second legal counsel presumably to challenge the decision. They retained the services of their third and present legal counsel on February 3, 1999 (within two months of the decision). The latter wrote to Mr. Nye on March 15, 1999 acknowledging receipt of his January 26, 1999 letter and stating that it was the appellants' "intention to challenge the decision".
[14] In accordance with the relevant provisions of the Interpretation Act3, the time period ran out on March 26, 1999. Counsel failed to launch the appeal before that date. He explained to the Court that he was unaware of the authority of Mr. Nye to make such a decision. He was awaiting his answer to his several letters before proceeding with the appeal. The response from Mr. Nye came on July 26, 1999 informing him, inter alia, that "in the case of the granting of probate for a will that authority is delegated to the undersigned". As mentioned earlier, the notice of appeal was filed only on September 13, 1999, more than seven months after the January 26, 1999 decision.
[15] In Bell v. Canada (Minister of Indian and Northern Affairs)4 my colleague Pinard J. dealt with an application for leave to appeal a 1980 decision of the Minister of Indian and Northern Affairs after the expiration of the two month period provided under section 47 of the Act. He said as follows, at p. 79:
| [2] The wording of s. 47 of the Indian Act compels me to conclude that this court cannot extend the time for instituting the appeal "since the period of time to be extended no longer exists - that is - there is no time period remaining for the court to extend" (see Westclox Canada Ltd. v. Pyrotronics of Canada Ltd., [1981] 2 F.C. 68 (F.C.A.), at p. 69). The court cannot ignore the clear and unambiguous mandate set out in s. 47 of the Indian Act. |
[16] His decision was confirmed by the Federal Court of Appeal5.
5. Disposition
[17] In spite of the valiant and eloquent efforts displayed by counsel for the appellants at the hearing, I cannot find that this Court now has jurisdiction to hear this matter. The wording of section 47 is clear and unambiguous. It must be interpreted in a manner consistent with the plain meaning of its terms. The Court must give effect to the language used by Parliament. The mere statement in a letter of an intention to eventually appeal a decision is not a valid substitute for the actual filing of an appeal.
[18] In any event, the amount in controversy does not exceed five hundred dollars. The house where the deceased lived on the Reserve is not the property of the deceased. According to the executrix, his daughter, the value of the estate is "$1.00".
[19] Consequently, since this Court is without jurisdiction to hear the appeal, said appeal is dismissed with costs.
OTTAWA, Ontario
June 9, 2000
Judge
__________________1 R.S.C. 1985, c. I-5, as amended.
2 In his affidavit dated September 7, 1999 in support of the instant appeal the appellant Gordon Francis states that the estate value exceeds $500 but in the appellants' allegations the estate of Joseph Francis includes the house in question.