Balders Estate v. Nova Scotia (Registrar of Probate, County of Halifax)

Balders Estate v. Nova Scotia (Registrar of Probate, County of Halifax) Court Court of Appeal Date 1999-10-08 Citation 1999 NSCA 119 Docket CA 156442 Judge/Registrar/Adjudicator Roscoe, Elizabeth A. (Honourable Justice) (CA); Glube, Constance R. (Honourable Chief Justice) (CA); Cromwell, Thomas A. (Honourable Justice) Document Type Decision Relations Library Sheet - Balders Estate v. Nova Scotia (Registrar of Probate, County of Halifax) - 1999 NSCA 119 - 1999-10-08 - Library Sheet Decision Content Date: 19991008 Docket: CA 156442 NOVA SCOTIA COURT OF APPEAL [Cite as: Balders Estate v. Nova Scotia (Registrar of Probate, County of Halifax, 1999 NSCA 119] Glube, C.J.N.S.; Roscoe and Cromwell, JJ.A. BETWEEN: ) ) THE REGISTRAR OF PROBATE FOR ) Reinhold M. Endres, Q.C. THE COUNTY OF HALIFAX and THE ) for the Appellants ATTORNEY GENERAL OF NOVA ) SCOTIA, REPRESENTING HER MAJESTY ) THE QUEEN IN RIGHT OF THE PROVINCE ) OF NOVA SCOTIA ) ) Appellants ) ) - and - ) ) HUGH BALDERS and DAVID A. STEWART, ) John MacL. Rogers AS CO-EXECUTORS OF THE ESTATE OF ) and John E. MacDonell NORA LANGTON BALDERS ) for the Respondents ) Respondents ) ) ) ) Appeal Heard: ) October 8, 1999 ) ) ) Judgment Delivered: ) October 8, 1999 THE COURT: Leave to appeal is denied with costs to the respondents in the amount of $1,500 plus disbursements, as per oral reasons for judgment of Roscoe, J.A.; Glube, C.J.N.S. and Cromwell, J.A. concurring. The reasons for judgment of the Court were delivered orally by: ROSCOE, J.A.: [1] The issue in this appeal is whether a Chambers judge erred in refusing the appellants’ application to strike out an affidavit filed on behalf the respondents in support of their action, commenced by Originating Notice (Application Inter Partes), to have certain probate fees declared unconstitutional. [2] The affidavit in issue on appeal was sworn by John W. Arnold, Q.C., a solicitor engaged as an expert to provide an opinion to the respondents. In the affidavit Mr. Arnold: - sets out the legislative history of probate fees in Nova Scotia, and attaches as exhibits the referenced Orders in Council, Acts and schedules; - notes the standard probate procedures for opening estates and attaches the applicable forms; - and states his opinion derived from his observations of the process, that the fees, based on the value of the estate, that are levied by the Registrar of Probate bear no relationship to the cost of the service provided to the estate. [3] Saunders J. rejected the appellants’ argument that the affidavit was impermissible because it contained opinion, explanations of the law, and argument. He concluded that, while unusual, in the context of the application before him, and considering the opportunity for cross-examination, the affidavit was not objectionable. He determined that the opinions were: ... properly expressed within the strictures of the Rules and meet the requirements of the authorities to which I have already referred. The weight, if any, to be given to them is for me alone. [4] Normally this Court will not entertain appeals from interlocutory rulings on the admissibility of evidence. (See Children’s Aid Society of Halifax v. L.H. (1989), 90 N.S.R. (2d) 44). However, since the respondents have urged us not to deny leave on that basis, and given that the record before the Court is sufficient to consider the context of the ruling under appeal, we will address the issue of the admissibility of the affidavit on its merits. [5] The discretionary interlocutory order of the Chambers judge will not be set aside unless there has been an application of a wrong principle of law or a patent injustice would result. (See Exco Corp. v. Nova Scotia Savings and Loan Co. (1983), 59 N.S.R. (2d) 331.) [6] After considering the record and the submissions of counsel, we have not been persuaded that there is reversible error. Much of the affidavit simply cited legislative fact or fact that would have been suitable for judicial notice. The opinions expressed were obviously within Mr. Arnold’s area of expertise, and were consistent with facts asserted by the Executive Director of Courts and Registries in an affidavit filed by appellants. Mr. Arnold’s opinions with respect to the relationship between probate fees and the cost of providing the service were, in essence, nothing more than a summing-up of his observations. To use the words of MacKeigan, C.J.N.S. cited in the respondents’ factum, although portions of the affidavit admitted by the Chambers judge “fell close to the line”, or, we would add, may have fallen short of technical compliance with the Rules, we “would not on this interlocutory appeal presume to question his exercise of discretion in admitting them”. (See Gordon et al. v. N.S. Teachers’ Union (1983), 59 N.S.R. (2d) 124 at p. 126.) [7] Leave to appeal is denied with costs to the respondents in the amount of $1,500 plus disbursements. Roscoe, J.A. Concurred in: Glube, C.J.N.S. Cromwell, J.A.