FOR IMMEDIATE RELEASE
OCTOBER 23, 1998

The CBA BC Branch Wills and Estates - Vancouver Section today issued a notice to the profession regarding the October 22, 1998 Supreme Court of Canada decision Eurig Estate (Re), File No. 25866.

By a 7-2 majority, the Court found that Ontario probate fees are a tax and that while the Ontario legislature has the authority to implement a direct tax, it must do so through the legislature and not by Lieutenant Governor in Council (i.e. by regulation). The declaration of invalidity has been suspended for a period of six months to enable the Province of Ontario to deal with this problem. The Appelant, however, is to receive a full refund of the probate fees paid.

The Court indicated that not only must taxes be passed by legislatures, but that the amount levied must bear some relation to the service being provided. This decision may have implications for the status of other Government fees.

As in Ontario, probate fees in British Columbia are a product of regulation. The Attorney General of British Columbia was an intervenor in the Appeal. It is anticipated that the Government of BC will introduce legislation to re-institute the probate fee, and may make it retroactive.

"In the interim, practitioners could consider filing probate applications only paying the flat fee of $208, but this will likely result in a refusal to issue probate by the Probate Registry," said Deidre J. Herbert, Chair of the Wills and Trusts-Vancouver Section. "At the very least, probate fees ought to be paid under protest in light of the Re: Eurig decision, which should assist applicants in applying for refunds should the Government not pass retroactive legislation."

For more information, contact:

Deidre Herbert, Chair
Wills and Trusts - Vancouver Section
T: 604.683.5254
Canadian Bar Association British Columbia