Date: 20001016
Docket: T-458-99
CALGARY, ALBERTA, MONDAY, THIS 16TH DAY OF OCTOBER, 2000
BEFORE: THE HONOURABLE MR. JUSTICE TEITELBAUM
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,
THE MINISTER OF INDIAN AND NORTHERN AFFAIRS CANADA,
and THE ENOCH CREE NATION #440
Respondents
ORDER AND REASONS FOR ORDER
TEITELBAUM, J:
[1] On August 30, 2000, the Court heard an appeal made pursuant to section 47 of the Indian Act appealing the decision of the Minister made on February 23, 1999, wherein it was found that the will of Adolphus Morin dated December 17, 1986 would not be approved and that the will of Adolphus Morin dated March 10, 1954 is the approved document.
[2] For the purpose of the present application, I do not believe it necessary to give the facts for the appeal. The facts can be found in both the Appellants' Appeal Record and the Respondents' Record.
[3] At the end of the hearing on August 30, 2000, it was agreed that the Appellants would file an application to be permitted to produce the original document of the will dated December 17, 1986 which original document was never produced for consideration to the Minister's representative.
[4] Not having the original document which it is alleged is the will, the Minister's representative could not tell whether the document is a valid will, that is to say whether the signature of the late Adolphus Morin is authentic or, for any other reason, the will can be accepted as authentic.
[5] The appellants now make a motion for:
| 1) An Order granting leave for the Appellants to present new evidence on appeal on the question of the existence of an original copy the last will and testament of Adolphus Morin in such form and manner as this Honourable Court may deem fit and necessary; |
| 2) An Order granting leave for the Appellants to present new evidence on appeal on the question of the valid execution of the last will and testament of Adolphus Morin in such form and manner as this Honourable Court may deem fit and necessary; |
| 3) Granting that this motion be decided on the basis of written representations; and |
| 4) Such further and other orders as this Honourable Court may deem necessary. |
[6] As grounds for the present motion, the appellants state:
| 1) The Appellants could not have presented the evidence to the Minister below upon the exercise of due diligence; |
| 2) The evidence is relevant to an issue before the Minister and before this appellate Court; |
| 3) The evidence is credible and reasonably capable of belief; and |
| 4) The evidence might reasonably have affected the result reached by the Minister. |
[7] The respondents oppose the present application on the basis that the appellants or some of them were aware of the existence of the December 17, 1986 will at or about the time it was prepared and it is thus now late to attempt to file this new evidence.
[8] I am satisfied that it is in the interest of justice that all documentation be placed before the decision-maker, such as the original of the second will, for the decision-maker to decide which will should have effect, taking into account all of the circumstances of a particular case.
[9] I am going to allow the present application and allow the appellants (applicants) to present this new evidence on appeal and grant leave for the appellants (applicants) to present new evidence on appeal on the question of the valid execution of the last will and testament of Adolphus Morin.
[10] At the request of the respondents, the appeal herein is adjourned for a period of six months to permit the respondents to consider the fresh evidence.
[11] The appellants (applicants) at the end of six months from today's date shall file a request for a hearing date.
[12] I shall not be seized with the present appeal as I will not likely be available for the new hearing.
"Max M. Teitelbaum"
| J.F.C.C. |
Calgary, Alberta
October 16, 2000