2019 NLCA 68, 2019 NLCA 68

Office of the Public Trustee (appellant) v. Stephen Brake (first respondent), Weldon Brake (second respondent) and Hayward Brake (third respondent) (18/95) Indexed As: Re: Office of the Public Trustee; Brake v. Brake 2019 NLCA 68 5 C.A.N.L.R. 120 Court of Appeal of Newfoundland and Labrador White, O’Brien and Butler JJ.A. October 21, 2019

Summary: At trial, the judge made an order under

section 119 of the Judicature Act regarding the administration of the estate of the late Myles Brake. Paragraph 2(

b) of that order stated that the Public Trustee was required to apply for approval of its fees pursuant to the Trustee Act . The Public Trustee appealed, arguing that the judge relied upon repealed legislation in making that portion of the order. Held: Appeal allowed. Butler J.A. (White and O’Brien JJ.A. concurring): Despite not being a party at trial, the Public Trustee had standing to commence the appeal as the order was final, vis-à-vis the Public Trustee, and the Public Trustee was directly affected by the order. As such, the Public Trustee should not be left without any appellate recourse (paragraphs 3-10).

The judge relied on subsection 52(7) of the Trustee Act for authority to require the Public Trustee to make an application for the approval of its fees. However,

section 30 of the Public Trustee Act, 2009 , which repealed subsection 52(7) of the Trustee Act , provided for compensation of the Public Trustee in accordance with the Act and Regulations . The judge erred by relying upon repealed legislation (paragraphs 14-22). Cases cited: Re: Carroll; Kent v. Kent , 2010 NLCA 53 Re: Power; Yetman v. Yetman , 2015 NLCA 10 Housen v. Nikolaisen, 2002 SCC 33 , [2002] 2 S.C.R. 235 Statutes considered: Judicature Act, RSNL 1990, c. J-4,

section 119 Trustee Act, RSNL 1990, c. T-10,

section 52 Court of Appeal Act , SNL 2017, c. C-37.002, section 6(1) Public Trustee Act , 2009 , SNL 2009, c. P-46.1, sections 4 , 16(1) , 30(2) Regulations considered: Public Trustee Compensation Regulations , NLR 86/13,

section 2

Rules considered: Court of Appeal Rules , NLR 38/16, rule 6 Rules of the Supreme Court, 1986 , rule 55 Counsel: Mark P. Sheppard, for the appellant; No appearance, for the first, second and third respondents. The appeal was heard on October 7, 2019 before White, O’Brien and Butler JJ.A. The following judgment was filed on October 21, 2019 by Butler J.A. for the Court. ______________________________________________________________ Butler J.A.: INTRODUCTION [ 1 ] The Office of the Public Trustee (“the Public Trustee) appeals one paragraph only of an order (the “Order”) which was made under

section 119 of the Judicature Act , R.S.N.L. 1990, c. J-4 . The paragraph established the manner of the Public Trustee’s compensation as administrator of the estate of the late Myles Brake. [ 2 ] The appellant suggests that the judge erred in paragraph 2(

b) of the Order wherein he required that the Public Trustee should, as part of his duties and before the Estate was distributed, “make application for approval of the Public Trustee’s fee pursuant to

section 52 of the Trustee Act , R.S.N.L. 1990, c. T-10 .” STANDING [ 3 ] The Public Trustee was not a party to the action in which the Order was made and did not receive any notice of the proceedings. His office learned of the appointment following the filing of the Order on October 4, 2018. [ 4 ] Thus, this appeal addresses, in part, the ability of a non-party to appeal an Order to this Court. [ 5 ] This Court has previously recognized that a non-party may have a right of appeal. See Re : Carroll ; Kent v.

Kent , 2010 NLCA 53 , where a witness appealed an order that she produce personal records in family law litigation to which she was not a party and Re : Power ; Yetman v. Yetman , 2015 NLCA 10 , where a solicitor was permitted to appeal a costs order made against her. [ 6 ] The consistent feature of these cases is that the non-party’s legal interests were effectively finally determined by the order in question and, if they could not appeal the order directly affecting them, they were without legal recourse. [ 7 ] Subsection 6(1) of the Court of Appeal Act, S.N.L. 2017, c.

C-37.002 , provides that an appeal lies to this court from an order of the Supreme Court or an order of a judge of the Supreme Court. It does not reference the requirement that the appeal be brought by a party to the action from which the appeal emanates. It would be reasonable however to interpret subsection 6(1) as requiring a non-party to be directly affected by the order, as the Public Trustee is here. [ 8 ] I would conclude that subsection 6(1) of the Court of Appeal Act supports the Public Trustee’s ability to appeal paragraph 2(

b) of the Order to this Court. [ 9 ] The Order was, vis-à-vis the Public Trustee, final; the Public Trustee was directly affected and the Public Trustee should not be left without any appellate recourse. [ 10 ] I pause to acknowledge that Stephen Brake has filed an appeal from the Order appointing the Public Trustee (201801H0088). While I agree it is possible for the Public Trustee to seek to intervene in Stephen Brake’s appeal, intervenors are generally restricted to making submissions on issues raised by the parties and in addition, Stephen Brake’s appeal could be deemed abandoned or discontinued.

STYLE OF CAUSE [ 11 ] The appeal was presented in the format of Office of the Public Trustee, Appellant vs. Stephen, Weldon and Hayward Brake, Respondents. [ 12 ] There is no specific provision in the Court of Appeal Rules , N.L.R. 38/16 , to address the appropriate style of cause and citation

for a case where the appellant was not a party to the action from which the appeal emanates. Rule 6 applies to gaps in the Rules and permits the Court to adopt an appropriate procedure. Relying upon the approach taken in Re : Carroll; and Re : Power ; I would amend the style of cause in the within matter to read as indicated on page 1 of this decision. [ 13 ] The citation to this decision should be Re : Office of the Public Trustee ; Brake v Brake , 2019 NLCA 68.

MERITS OF THE APPEAL [ 14 ] The legislative provision upon which the trial judge relied for authority to require the Public Trustee to make application for approval of his fee was section 52(7) of the Trustee Act , R.S.N.L. 1990, c. T-10 , which, until 2011, had stated: “

(7) Notwithstanding the other provisions of this Act, the compensation of the Registrar of the Supreme Court, when acting as a trustee or guardian, shall be governed by the rules of the court.” [ 15 ] The Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42,

Schedule D , (if they were applicable) would have required the Office of the Public Trustee (the successor to the Registrar) to submit its account for taxation to a taxing master who would tax the account based upon units of service allowed and applying the unit value in effect on the date of the assessment to these units (Rule 55, Appendix). [ 16 ] The Public Trustee Act, 2009 , S.N.L. 2009, c. P-46.1 , came into effect on June 10, 2011 and established the Office of the Public Trustee which is a corporation. “Public Trustee” is defined as the person appointed under that Act to have the powers and fulfill the duties set out in

section 4 of the Act and which includes acting as the administrator of an estate. [ 17 ] Section 30(2) of the Public Trustee Act, 2009 repealed subsection 52(7) of the Trustee Act effective on the date of proclamation and substituted the following: “

(7) Notwithstanding another provision of this Act, the compensation of the public trustee shall be governed by the Public Trustee Act, 2009 ” [ 18 ] In contrast to the previous wording of subsection 52(7) , effective June 10, 2011, the Public Trustee was not required to make application for approval of his fee under the Rules of the Supreme Court . Instead, section 16(1) of the Public Trustee Act, 2009 , provided that “the public trustee shall be compensated in the manner prescribed by the regulations”. [ 19 ] The Public Trustee Compensation Regulations NLR 86/13 (the “ Regulations ”) came into effect in

Section 2 established a

Schedule of fees to which the Public Trustee would be entitled for specified services. In comparison to the Appendix to Rule 55, the Regulations prescribe that the Public Trustee’s fee is a commission on capital assets, interest, or income received, and proceeds of sale of real property and chattels. [ 20 ] The question for determination is whether the judge made an error of law in relying upon a legislative provision that had been repealed and replaced at the time of the Order. [ 21 ] It is established that the standard of review for an error of law is that of correctness ( Housen v.

Nikolaisen , 2002 SCC 33 , [2002] 2 S.C.R. 235 , at para. 8 ). Reliance upon repealed legislation is an error of law which warrants setting aside the challenged provision of the Order, being paragraph 2(b). [ 22 ] I would set aside paragraph 2(

b) of the judge’s Order and replace it with the following text: “The Public Trustee shall be remunerated in accordance with

section 16 of the Public Trustee Act , 2009 , SNL 2009, c. P-46.1 .” CONCLUSION [ 23 ] I would conclude that: 1. The Public Trustee has standing to appeal the Order; 2. Paragraph 2(

b) of the Order is set aside and replaced with the following text: “The Public Trustee shall be remunerated in accordance with

section 16 of the Public Trustee Act, 2009 , SNL 2009, c. P-46.1 .” [ 24 ] Nothing contained herein shall be taken as a predetermination of any issue raised in Stephen Brake’s appeal (201801H0088). Appeal allowed.