The Supreme Court of Yukon set aside an order made in August 2011 granting letters of administration with respect to the estate of Lizzie Dickson to her sister Mary Johnny. The Court had no jurisdiction to grant the order since the Deceased’s estate fell within the exclusive jurisdiction of the Minister of the Department of Indian Affairs and Northern Development under section 42 of the Indian Act.

The Deceased was a registered status Indian of the Ross River First Nation. She lived in Ross River until 2009, when she moved to a long-term care facility in Whitehorse. Prior to her move to Whitehorse, the Deceased had been in a common law relationship with Mr. Ladue. She died intestate in September 2010 at the age of 81.

Following the Deceased’s death, a DIAND officer was appointed as administrator of the estate. The DIAND officer notified Ms. Johnny of this appointment, and advised that the Deceased’s estate would devolve to her common law partner Ladue.

Ms. Johnny believed that the Deceased wanted her estate to go to her, and not to Mr. Ladue. In July 2011, she applied to the Yukon Supreme Court for a grant of letters of administration with respect to the Deceased’s estate. She did not notify DIAND of her application. She did not obtain the consent of DIAND to her appointment as required by Rule 64(7) of the Yukon Rules of Court. On August 2, 2011, Mr. Justice Veale granted her administration of the estate (the “Veale Order”). In November 2011, DIAND applied to set aside the Veale Order, and Ms. Johnny filed a cross-application.

The Court reviewed some technical arguments about the probate rules (Rules 64 and 65) in Yukon’s Rules of Court. Gower J. was satisfied that Ms. Johnny should have pursued an appeal to the Federal Court under section 47 of the Indian Act in relation to DIAND’s decision to appoint an administrator for the estate, rather than apply to the Yukon court for a grant of administration. The Court stated:

Ms. Johnny was aware of the Minister’s appointment of an administrator for Ms. Dickson’s estate. If she was unhappy about that appointment, she had the option of appealing the Minister’s decision to the Federal Court under s. 47 of the Indian Act. Having chosen to come to this Court, Ms. Johnny should have commenced a probate action under Rule 65 to seek a “revocation” of the Minister’s appointment. At the very least, having chosen to proceed under Rule 64, Ms. Johnny was obliged to provide the Minister with notice of her application for the Veale order, if not further obliged to get the Minister’s consent, pursuant to the combined effect of Rules 47(5) and 64(7). Having failed to do so, it is open to Canada to seek to set aside the Veale order pursuant to Rule 50(16).

It was therefore not open to Ms. Johnny to argue that Canada should have taken a more circuitous route of commencing a probate action. Canada’s application was properly seen as an application to set aside the Veale Order as a nullity.

Section 42 of the Indian Act provides that all jurisdiction and authority relating to the testamentary matters of deceased Indians is vested exclusively in the Minister. Pursuant to s. 4(3) of the Act, the provisions relating to Indian estates do not apply if the Indian “does not ordinarily reside on a reserve or on lands belonging to her Majesty in right of Canada or a province”. The issue was whether the Deceased was no longer ordinarily resident in Ross River due to her move to the care facility in Whitehorse.

The leading case on the meaning of “ordinarily resident” is Canard v. Canada, [1976] 1 S.C.R 170, which was subsequently applied in Earl v. Canada, 2004 FC 897. In Canard, the Court contrasted ordinary residence with “special or occasional or casual residence”. The facts in Earl were comparable, as the deceased Indian had moved from a reserve to a care facility in Vernon, BC shortly before his death. Applying Canard, the Court in Earl held that the deceased remained ordinarily resident on the reserve because “the laws governing descent of property should not vary when an individual is required to live off reserve due to illness and residence in a medical facility is not a customary mode of life but rather is a special residence”.

The Yukon Court rejected the submissions of Ms. Johnny that this passage in Earl was obiter dicta, and applied the same reasoning to the Deceased’s move to the Whitehorse facility. There was additional evidence suggesting that the Deceased maintained her ordinary residence in Ross River.

The Court therefore allowed Canada’s application to set aside the August 2011 Order of Mr. Justice Veale. If Ms. Johnny was unhappy about DIAND’s decision to administer the estate, her option was to bring an appeal under section 47 of the Indian Act. Canada indicated that it would be willing to extend the 2-month time limit in this case.

http://www.canlii.ca/en/yk/yksc/doc/2012/2012yksc71/2012yksc71.html

Scott Kerwin, Partner
Aboriginal Law
BLG, Vancouver
604-604-4029
skerwin@blg.com

Author

Scott Kerwin 
SKerwin@blg.com
604.640.4029

Expertise

Aboriginal Law