Thomas v. Thomas Estates, (2016) 381 Nfld. & P.E.I.R. 223 (PEICA)

JudgeJenkins, C.J.P.E.I., Murphy and Mitchell, JJ.A.
Case DateJune 22, 2016
JurisdictionPrince Edward Island
Citations(2016), 381 Nfld. & P.E.I.R. 223 (PEICA)

Thomas v. Thomas Estates (2016), 381 Nfld. & P.E.I.R. 223 (PEICA);

    1181 A.P.R. 223

MLB headnote and full text

Temp. Cite: [2016] Nfld. & P.E.I.R. TBEd. JL.004

William L.S. Thomas (appellant) and in the Matter of the Estate of Albert L. Thomas, late of the Atlantic Baptist Home, in Charlottetown in Queens County, in the Province of Prince Edward Island, married, deceased (respondent)

(S1-CA-1321)

William L.S. Thomas (applicant) and in the Matter of the Estate of Lorraine Williamson Thomas, late of Charlottetown, in Queens County, Province of Prince Edward Island, deceased, testate (respondent)

(S1-CA-1322; 2016 PECA 13)

Indexed As: Thomas v. Thomas Estates

Prince Edward Island Court of Appeal

Jenkins, C.J.P.E.I., Murphy and Mitchell, JJ.A.

July 6, 2016.

Summary:

Thomas applied for extensions of time for filing a Notice of Appeal of the passing of the accounts of his parents' estates.

The Prince Edward Island Court of Appeal dismissed the applications.

Executors and Administrators - Topic 2206

Duties and powers of executors and administrators - Powers - General - Public trustee - [See Executors and Administrators - Topic 5041 ].

Executors and Administrators - Topic 5041

Actions by and against representatives - Parties - General - Thomas applied for extensions of time for filing a Notice of Appeal of the passing of the accounts of his parents' estates - Thomas asserted irregularities regarding the proceedings in the Supreme Court leading to the passing of accounts, and in the case of his father's estate he also asserted the presence of a "second" will, which brought into question the validity of the will that was probated - Thomas had attempted to involve the Public Trustee in both applications, by appointment as power of attorney - The Public Trustee responded that his office did not accept any such appointment, and would not provide representation, opinion or advice, as the issues in these estate matters were well beyond the scope of the duties of that office - The Prince Edward Island Court of Appeal held that the provisions of the Public Trustee Act fully supported the Public Trustee's position - See paragraph 25.

Practice - Topic 9002

Appeals - Notice of appeal - Extension of time for filing and serving notice of appeal - The Prince Edward Island Court of Appeal discussed when an extension of time to commence an appeal would be granted - The court stated that: "In previous decisions, our Court of Appeal has cited the applicable factors this way: 1. Does the appeal have merit? 2. Was there a bona fide intention to appeal? 3. Is there a reasonable excuse for a delay in not filing within the prescribed time? 4. Are there exceptional or special circumstances justifying the extension of time? The Ontario Court of Appeal treats the question of whether the 'justice of the case' requires that an extension be given as the governing principle, and employs all of the mentioned factors, as well as prejudice to the other party, as factors. ... [T]hat approach facilitates a full assessment of the competing interests." - See paragraphs 2 to 8.

Practice - Topic 9002

Appeals - Notice of appeal - Extension of time for filing and serving notice of appeal - Thomas applied for extensions of time for filing a Notice of Appeal regarding the passing of the accounts of his parents' estates - The Prince Edward Island Court of Appeal dismissed the applications - The court stated that "Eleven months passed after closing of the estates before Mr. Thomas brought his applications for extension of time to commence appeals. After that, a further six months has elapsed to the hearing date. The applicant has not provided any basis for an extension of time, and the respondents have demonstrated real potential for prejudice." - See paragraphs 9 to 24.

Counsel:

William L.S. Thomas, on his own behalf;

Graham W. StewartQ.C., for the Estate of Albert L. Thomas;

M. Lynn Murray, Q.C., and Cynthia A. Taylor, for the Estate of Lorraine Williamson Thomas.

These applications for an extension of time to commence appeals were heard at Charlottetown, P.E.I., on June 22, 2016, by Jenkins, C.J.P.E.I., Murphy and Mitchell, JJ.A., of the Prince Edward Island Court of Appeal. Jenkins, C.J.P.E.I., delivered the following decision for the court on July 6, 2016.

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