VICTORIA HOLLY FRANCES SCOTT APPLICANT/APPELLANT AND: KATHLEEN FLORENCE RUTH SCOTT RESPONDENT, 2023 NLCA 6

IN THE COURT OF APPEAL OF NEWFOUNDLAND AND LABRADOR Citation : Scott v. Scott, 2023 NLCA 6 Date : February 23, 2023 Docket Number : 202201H0011 BETWEEN: VICTORIA HOLLY FRANCES SCOTT APPLICANT/APPELLANT AND: KATHLEEN FLORENCE RUTH SCOTT RESPONDENT Coram: G. D. Butler J.A. Court Appealed From : Court of Appeal of Newfoundland and Labrador 2022 NLCA 61 Application Heard: February 21, 2023 Memorandum of Disposition Rendered: February 23, 2023 Counsel for the Applicant/Appellant: Self-represented Counsel for the Respondent: M. Alexandra Kindervater Authorities Cited:

CASES CITED: RJR – MacDonald Inc. v. Canada (Attorney General), (SCC), [1994] 1 S.C.R. 311; Churchill v.Unifund Assurance Company, 2017 NLCA 4; King v. King, 2015 NLCA 54; Vout v. Hay, (SCC), [1995] 2 S.C.R. 876;Federation of Newfoundland Indians v. Benoit, 2019 NLCA 52; Jadhav v. Kielly, 2018 NLCA 50; E.M. v. Y.C., 2018 NLCA 21. STATUTES CONSIDERED: Supreme Court Act, R.S.C. 1985, c. S-26,

section 65.1(1). MEMORANDUM OF DISPOSITION G. D. Butler J.A.: Introduction [1] This is an application by Victoria Scott to stay the enforcement of this Court’s decision in Scott v. Scott, 2022 NLCA 61 (the“Decision”) pending the outcome of her application for leave to appeal to the Supreme Court of Canada. [2] The Decision found that relative to the estate of John Scott, the Applications Judge in 2022 NLSC 11, had not erred in either: (

i) determining that letters of probate of the last will and testament of John Scott dated August 30, 2016, should be issued toKathleen Scott; (ii) dismissing Victoria Scott’s request to remove Kathleen Scott as an executor; or (iii) granting Kathleen Scott’s application to be appointed sole executor. [3] The terms of John Scott’s August 30, 2016 will entitle his second wife to receive a specified bank account, a vehicle, and hishousehold contents. The Applicant and the Respondent, who are John Scott’s surviving children, are the residuary beneficiaries in equalshares and will inherit the bulk of his estate.

The principal asset is a house at 34 Poplar Avenue, St. John’s, Newfoundland andLabrador, valued at approximately $400,000.00. [4] The Applicant appropriately relies upon

section 65.1(1) of the Supreme Court Act, R.S.C. 1985, c. S-26: The Court, the court appealed from or a judge of either of those court may, on the request of the party who has served and filed a noticeof application for leave to appeal, order that proceedings be stayed with respect to the judgment from which leave to appeal is beingsought, on the terms deemed appropriate. [5] Citing RJR – MacDonald Inc. v. Canada (Attorney General), (SCC), [1994] 1 S.C.R. 311, this Courtconfirmed the well-established test for staying a court order in such circumstances in Churchill v. Unifund Assurance Company, 2017NLCA 4: (

i) Is there a serious issue to be tried? A serious issue in this context means an issue that is not frivolous or vexatious. (ii) Would the litigant seeking a stay be irreparably harmed if the stay is not granted? and (iii) The balance of convenience as between the litigants. Serious Issue to be Argued [6] The first consideration requires a preliminary assessment of the merits of the appeal (King v.

King, 2015 NLCA 54, at para. 5). [7] On the issue of John Scott’s testamentary capacity, this Court addressed the Applicant’s assertion that her father had beenmisled and therefore had neither known nor approved of the contents of his August 30, 2016 will. Relying upon the test for a valid willestablished in Vout v. Hay, (SCC), [1995] 2 S.C.R. 876, the Court found no error in the Applications Judge’sconclusions that testamentary capacity was established and that no suspicious circumstances had been demonstrated to call into questionthe validity of the will (at para. 13).

[ 8 ] On the appointment of the executor, the Court acknowledged that good reason must be established for removing a designated executor; it referenced the threshold test for removal and reviewed situations where removal had been found to be justified (at paras. 15- 18).

The Court referred to the direction that the Applications Judge had given to himself and how he had applied the established legal principles to the facts. [ 9 ] The Court found no error in the Applications Judge’s conclusion that the Applicant lacked the intention and will to carry out the trusts imposed on her by John Scott’s will and that this justified her removal (at para. 26). [ 10 ] While there are “no specific requirements which must be met in order to satisfy” the first consideration ( RJR – MacDonald Inc., at 337) what is expected of an Applicant is identification of a legal principle, a question of law or mixed fact and law, or demonstration of how the Court misapprehended the facts.

As examples see Federation of Newfoundland Indians v. Benoit , 2019 NLCA 52 , at paragraph 8 and Churchill v. Unifund, at paragraph 3. [ 11 ] In this case the Applicant alleges criminal activity, international surveillance, and fraud connected to John Scott’s August 30, 2016 will. She characterizes this Court’s error as a failure to address these issues without reasonable explanation and goes so far as suggesting that this Court was protecting the identities of two police agents acting for CSIS and the RCMP.

The Applicant did not elaborate on how this Court erred in approving the Applications Judge’s statement of the legal principles and/or in the application of these principles to the facts. [ 12 ] I acknowledge that the threshold to be met by the Applicant to establish that there is a serious issue to be argued on appeal to the Supreme Court of Canada is low ( Jadhav v. Kielly , 2018 NLCA 50 , at para. 7 ).

However, even on this low standard I conclude that the Applicant has not identified a serious issue to be argued. [ 13 ] Generally, if there is no serious issue to be argued on the intended appeal, the stay application is dismissed ( Federation of Newfoundland Indians , at para. 7 citing E.M. v. Y.C ., 2018 NLCA 21 , and King v. King ). Nevertheless, for the benefit of the Applicant who is a self-represented litigant, I will briefly address the other considerations.

Irreparable Harm and Balance of Convenience Between the Litigants [ 14 ] The Applicant submits that she will suffer irreparable harm if the will is admitted to probate and the estate is distributed because the bequests to John Scott’s second wife would fail if his testamentary incapacity is established. [ 15 ] The Applicant was required to file a motion to extend the time to file and serve her leave application and did so on February 6, 2023. The Applicant does not challenge the Respondent’s estimate that a decision on the leave application will follow in approximately six months.

I agree that this is reasonable. [ 16 ] Firstly, it is not likely that distribution of John Scott’s estate would occur within the next six months and secondly, even if the bequests to the second wife were honoured, there is no evidence that she is impecunious. [ 17 ] In fact, I conclude that irreparable harm may result to both the Applicant and the Respondent if the stay is granted. [ 18 ] The Applicant is currently residing in John Scott’s house at 34 Poplar Avenue but acknowledges that she has been unable to secure insurance on the property (presumably, because the will of John Scott has not been probated).

In the event of significant damage or catastrophic loss, irreparable harm could result to both parties. Time is therefore of the essence. [ 19 ] These same facts would also tip the scales in the Respondent’s favour on the balance of convenience between the litigants, which is the final consideration. Conclusion and Disposition [ 20 ] For these reasons I would deny the Applicant’s request for a stay of execution pending the result of her leave application to the Supreme Court of Canada. [ 21 ] The Respondent has been successful and seeks party and party costs on column 3.

I agree that this is appropriate and that the Respondent’s costs should be paid from the estate. The Applicant shall pay her own costs. ___________________________ G. D. Butler J.A.