Fawson Estate, Re, (2013) 329 N.S.R.(2d) 329 (CA)

• Judge: Bryson, J.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: April 18, 2013
• Jurisdiction: Nova Scotia
• Citations: (2013), 329 N.S.R.(2d) 329 (CA);2013 NSCA 54

Fawson Estate, Re (2013), 329 N.S.R.(2d) 329 (CA);

    1042 A.P.R. 329

MLB headnote and full text

Temp. Cite: [2013] N.S.R.(2d) TBEd. MY.008

Sandra Marie Deveau (appellant) v. James Robert Fawson, Francis J. Fawson, Personal Representative of the Estate of Margaret Anne Fawson, deceased, Patrick J. Fawson, Samantha Alexandria Fawson, Sarah Marie Fawson, Jenna Fawson and Myles Fawson (respondents)

(CA 390659; 2013 NSCA 54)

Indexed As: Fawson Estate, Re

Nova Scotia Court of Appeal

Bryson, J.A.

April 30, 2013.

Summary:

Fawson died in December 2010. Her April 2004 will disinherited two of her three brothers. One of the disinherited brothers applied to have the will proved in solemn form. He claimed that because of Fawson's delusions about their mother's health and the two brothers' care of her, Fawson lacked testamentary capacity when she executed her will.

The Nova Scotia Supreme Court, in a judgment reported (2012), 313 N.S.R.(2d) 150; 990 A.P.R. 150, held that the will was invalid for lack of testamentary capacity. The doctrine of suspicious circumstances applied to rebut the presumption of testamentary capacity. The appointed executor (Deveau) failed to discharge the burden of proving testamentary capacity on a balance of probabilities. Deveau appealed personally (she was no longer executor). The brother moved to dismiss the appeal for noncompliance with the Civil Procedure Rules (notice of appeal filed on time, but deficient, and factum not filed at all). The motions judge adjourned the motion to permit Deveau to move to extend the time to perfect the appeal and to ensure that Deveau understood her vulnerability to personal liability for costs.

The Nova Scotia Court of Appeal, per Bryson, J.A., dismissed the motion to extend the time to perfect Deveau's appeal and allowed the motion to dismiss the appeal for noncompliance with the Rules. The court declined the brother's request for solicitor and client costs against Deveau, instead awarding party and party costs of $6,500, 50% payable by Deveau and 50% payable by her counsel personally.

Barristers and Solicitors - Topic 842

Duty to court - Liability for costs - For improper conduct - Deveau was appointed executor of Fawson's estate in her April 2004 will, which disinherited two of Fawson's brothers - One brother applied to have the will proven in solemn form - The trial judge found the will invalid for lack of testamentary capacity - Deveau appealed - The brother's motion to dismiss the appeal for noncompliance with the Civil Procedure Rules (failure to perfect appeal by filing deficient notice of appeal and filing no factum) was adjourned, with costs, by the motions judge to permit Deveau to move to extend the time to perfect the appeal and to ensure that Deveau understood that since she was appealing in her own right (no longer executor) she was vulnerable to costs personally - The Nova Scotia Court of Appeal, per Bryson, J.A., dismissed the motion to extend the time to perfect the appeal and dismissed the appeal for noncompliance with the Rules - The brother, entitled to solicitor and client costs out of the estate, sought solicitor and client costs against Deveau to indemnify the estate - The court limited costs to party and party costs of $6,500, stating that "the lethargic and neglectful manner in which this appeal has proceeded does not quite approach the 'exceptional circumstances' in which solicitor-client costs have been awarded. ... the conduct of Ms. Deveau and [her counsel] can better be characterized as 'sins of omission', rather than of positive malice or ill-will." - Further, since many of the problems with the appeal were attributable to counsel, the court exercised its discretion under rule 77.12 to order that 50% of the $6,500 costs awarded be paid personally by counsel - See paragraphs 87 to 89.

Practice - Topic 7454

Costs - Solicitor and client costs - Entitlement to - Improper, irresponsible, or unconscionable conduct - [See Barristers and Solicitors - Topic 842 ].

Practice - Topic 7455

Costs - Solicitor and client costs - Entitlement to - Estate and estate matters - [See Barristers and Solicitors - Topic 842 ].

Practice - Topic 9002

Appeals - Notice of appeal - Extension of time for filing and serving notice of appeal - The Nova Scotia Court of Appeal, per Bryson, J.A., held that the test for applying to extend the time to file and serve a notice of appeal applied to a motion to extend the time to perfect an appeal - That test was: "(1) the applicant had a bona fide intention to appeal when the right to appeal existed; (2) the applicant had a reasonable excuse for the delay in not having launched the appeal within the prescribed time; and (3) there are compelling or exceptional circumstances present which would warrant an extension of time, not the least of which being that there is a strong case for error at trial and real grounds justifying appellate interference. ... Where justice requires that the application be granted, the judge may allow an extension even if the three part test is not strictly met. ... The ultimate question is whether justice requires that an extension be granted. The three-part test is a useful, but not exhaustive guide for the exercise of the court's discretion" - See paragraph 14.

Practice - Topic 9003

Appeals - Notice of appeal - Extension of time for filing supporting documents - Deveau was appointed executor of Fawson's estate in her April 2004 will, which disinherited two of Fawson's brothers - One brother applied to have the will proven in solemn form - The trial judge found the will invalid for lack of testamentary capacity - Deveau appealed - The brother's motion to dismiss the appeal for noncompliance with the Civil Procedure Rules (failure to perfect appeal by filing deficient notice of appeal and filing no factum) was adjourned, with costs, by the motions judge to permit Deveau to move to extend the time to perfect the appeal and to ensure that Deveau understood that since she was appealing in her own right (no longer executor) she was vulnerable to costs personally - The Nova Scotia Court of Appeal, per Bryson, J.A., dismissed the motion to extend the time to perfect the appeal and dismissed the appeal for noncompliance with the Rules - The court stated that, assuming there were arguable, but not strong, issues on appeal, "Deveau's explanations for the delay in setting down the appeal, in filing incomplete appeal books, in failing to file her factum, in failing to remedy defects in the appeal books, are unsatisfactory, as is failure of her counsel to respond to reasonable queries from opposing counsel and the court" - The appeal was not being pursued in good faith - There was little or no prejudice to Deveau if the appeal were dismissed, but prejudice to the brothers and the administration of justice if the appeal proceeded - Deveau had yet to pay the "forthwith" costs ordered on the adjournment - The court was sceptical of Deveau's future compliance with the Rules - Counsel's argument that Deveau should not be penalized for his conduct was rejected - It was not in the "interests of justice" to continue the appeal - See paragraphs 1 to 86.

Cases Noticed:

Bellefontaine v. Schneiderman, [2006] N.S.R.(2d) Uned. 79; 2006 NSCA 96, refd to. [para. 14].

Farrell v. Casavant (2010), 294 N.S.R.(2d) 292; 933 A.P.R. 292; 2010 NSCA 71, refd to. [para. 15].

Cummings et al. v. Nova Scotia (Minister of Community Services) et al. (2011), 297 N.S.R.(2d) 331; 943 A.P.R. 331; 2011 NSCA 2, refd to. [para. 15].

Sevgur v. Islam (2011), 310 N.S.R.(2d) 266; 983 A.P.R. 266; 2011 NSCA 114, refd to. [para. 16].

Hay Estate, Re, [1995] 2 S.C.R. 876; 183 N.R. 1; 82 O.A.C. 161, refd to. [para. 59].

Nova Scotia (Attorney General) v. Spence, [2004] N.S.R.(2d) Uned. 57; 2004 NSCA 45, refd to. [para. 61].

Munroe v. Morgan Industrial Contracting et al. (2004), 222 N.S.R.(2d) 274; 701 A.P.R. 274; 2004 NSCA 49, refd to. [para. 74].

Powell (L.E.) and Co. v. Canadian National Railway Co. and Nova Scotia Building Supplies Ltd. (1975), 11 N.S.R.(2d) 532; 5 A.P.R. 532 (C.A.), refd to. [para. 74].

R. v. Liberatore (M.V.), [2010] N.S.R.(2d) Uned. 84; 2010 NSCA 33, refd to. [para. 78].

Marché d'Alimentation Denis Thériault ltée et al. v. Giant Tiger Stores Ltd. (2007), 247 O.A.C. 22; 2007 ONCA 695, refd to. [para. 79].

Hiscock v. Pasher (2008), 270 N.S.R.(2d) 169; 865 A.P.R. 169; 2008 NSCA 101, refd to. [para. 80].

Dominion Readers' Service Ltd. v. Brant et al. (1982), 41 O.R.(2d) 1 (C.A.), refd to. [para. 83].

Prevost Estate v. Prevost Estate (2013), 327 N.S.R.(2d) 152; 1036 A.P.R. 152; 2013 NSCA 20, refd to. [para. 87].

Norberg v. Wynrib, [1992] 2 S.C.R. 226; 138 N.R. 81; 9 B.C.A.C. 1; 19 W.A.C. 1, refd to. [para. 87].

Barrett v. Reynolds et al. (1998), 170 N.S.R.(2d) 201; 515 A.P.R. 201 (C.A.), refd to. [para. 87].

Counsel:

N. Kent Clarke, for the appellant;

Keith MacKay, for the respondent, James Fawson;

Francis J. Fawson, respondent, in person.

These motions were heard on April 18, 2013, at Halifax, N.S., in Chambers before Bryson, J.A., of the Nova Scotia Court of Appeal, who delivered the following judgment on April 30, 2013.