Baird Estate - The Courts of Nova Scotia

IN THE SUPREME COURT OF NOVA SCOTIA
Citation: Baird Estate (Re), 2014 NSCC 427 Date: 2014/11/28
Docket: Pictou Probate No. 20947
Registry: Pictou
IN THE ESTATE OF HELEN BAIRD, Deceased
Judge:
The Honourable Justice N. Scaravelli
Heard:
November 28, 2014, in Pictou, Nova Scotia
Counsel:
Keith MacKay, counsel for the Applicant
Jill Graham-Scanlan, for Edward Baird and Barbara D’Eon
Subject:
Reconsideration of Judge’s decision prior to issuance of an order.
Summary: Trial judge issued a decision and was appointed to the Court of appeal
prior to issuance of an order. Applicant filed Notice of Appeal and also requested
reconsideration by successor judge.
Issues: Should appointed successor judge use court’s inherent discretion to
reconsider decision of prior judge?
Result: Application dismissed. To reconsider decision of prior judge in these
circumstances would be an inappropriate use of the court’s discretion.
THIS INFORMATION SHEET DOES NOT FORM PART OF THE
COURT’S DECISION. QUOTES MUST BE FROM THE DECISION, NOT
THE COVER SHEET.
IN THE SUPREME COURT OF NOVA SCOTIA
Citation: Baird Estate (Re), 2014 NSCC 427
Date: 2014/11/28
Docket: Pictou Probate No. 20947
Registry: Pictou
IN THE ESTATE OF HELEN BAIRD, Deceased
Judge:
The Honourable Justice N. Scaravelli
Heard:
November 28, 2014, in Pictou, Nova Scotia
Counsel:
Keith MacKay, counsel for the Applicant
Jill Graham-Scanlan, for Edward Baird and Barbara D’Eon
Page 2
Orally By the Court:
[1]
For the record, Grace Whitford made an application for Proof in Solemn
Form in matter of the Estate of Helen Baird. Following a hearing of June 2nd, 3rd
and 5th, 2014, Justice Cindy Bourgeois reserved her decision as to whether the Last
Will and Testament of Helen Baird, dated November 25th, 2011 ought to be
admitted to Probate. At issue was Mrs. Baird’s testamentary capacity at the time.
[2]
Two Notices of Objection were filed by Edward Baird and Barbara D’Eon
asserting that Helen Baird had the testamentary capacity.
[3]
By written decision of July 11, 2014, Justice Bourgeois concluded Mrs.
Baird had the requisite testamentary capacity and that the Will be admitted to
Probate. Further, if the parties were not able to agree with respect to costs, written
submissions were to be provided by August 31st, 2014.
[4]
Justice Bourgeois was appointed to the Nova Scotia Court of Appeal on June
22nd, 2014.
Pursuant to Civil Procedure Rule 82.19, Chief Justice Kennedy
appointed me to complete the work in this file.
[5]
In the meantime, Grace Whitford filed a Notice of Appeal of Justice
Bourgeois’ decision on August 15th, 2014. I note from the record in the file a
Page 3
motion is scheduled before the Court of Appeal in Chambers, December 4th, 2014
to set a date for hearing of the appeal and further directions.
[6]
Following the filing of the Notice of Appeal, Grace Whitford has requested
that I reconsider the decision of Justice Bourgeois on the basis that no order was
entered after the issuance of her judgement.
[7]
Edward Baird and Barbara D’Eon, named as respondents in the Notice of
Appeal, oppose reconsideration of the decision.
Following appearance in chambers I requested counsel provide me with briefs
regarding this issue, which they have done and I have heard submissions this
morning. Civil Procedure Rule 82.19 does not specifically authorize a successor
judge to conduct a reconsideration of a decision of another judge. The essence of
the rule is to appoint another judge to complete a trial or hearing, or render a
decision following a completed trial. It is clear however, that a judge does have
the discretion to withdraw, modify or even reverse a decision that has not been
formalized by an order. I refer to MacDonald v. MacDonald, 2010 NSCA 34.
However, as stated by Justice Cromwell in Griffin v. Corcoran, 2001 NSCA 73,
the decision to reconsider a judgement is an extraordinary remedy, used in
Page 4
situations where to refuse to do so, would create an injustice to one or both parties.
Quoting Justice Cromwell at paragraph 68.
While fair and orderly procedure is essential, so is reaching a correct result
on the merits. Genuine mistakes, oversights or even poor judgement should rarely
defeat a just cause. If key evidence has been overlooked or an untruth only lately
detected, there are strong arguments of justice in favour of allowing the court to
reopen its consideration of the matter. The more important the evidence would be
to the outcome of the case, the stronger the argument in favour of its reception. To
rephrase a familiar adage, justice must not only appear to be done, it must in fact be
done.
[8]
Although the court has an inherent jurisdiction to reconsider a decision
where no order has been formalized in order to prevent an injustice, there were no
cases provided by counsel where a court exercised discretion to reconsider a
decision on the merits rendered by another judge.
[9]
The decision which is under appeal has grounds identical to the grounds put
forth for reconsideration by me. This is not a case of seeking reconsideration
because of a blatant mistake or oversight or evidence later detected or obvious
serious procedural error on its face.
[10] The Court of Appeal is subject to a standard of review when dealing with the
grounds of appeal in this case. For this court to reconsider Justice Bourgeois’
decision under these circumstance would be akin to hearing de novo where no
deference is given to the judge’s findings.
Page 5
[11] In my view a rehearing would not be an appropriate exercise of judicial
discretion under these circumstances and I decline to do so.
[12] I am also awarding costs against Grace Whitford in the amount of $750,
payable forthwith.
Scaravelli, J.

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