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There has now been Ontario government reaction to the judgment of the Supreme Court of Canada in Re Eurig Estate, this being the case in which the Court struck down as unconstitutional probate fees imposed by regulation. The ruling that these fees were a tax which could not be imposed by subordinate legislation created the spectre of a massive number of law suits for recovery of what was estimated to be $1.5 billion paid to the province since the fees were first imposed in May of 1950.

Whether any of these actions would have been successful is an interesting question. However, the Conservative Government has now ensured that we will never know the answer to it by introducing legislation on November 24, 1998 (the Estate Administration Tax Act, 1998, being a Schedule to the Tax Credit and Revenue Protection Act, 1998, Bill 81). Under this legislation, a retroactive tax dating back to May 15, 1950 has been imposed on estates at the same levels as the then applicable probate fees with those estates which have paid the probate fees entitled to a credit against the tax now being levied.

However, the government did show a modicum of restraint in its response to the Supreme Court's judgment. It did not go as far as depriving the Eurig Estate of the fruits of the order that the government repay the "fees" that the estate had paid under protest. Section 7(2) of the Act provides: "The estate of Donald Valentine Eurig, who died on or about October 14, 1993, is exempt from tax under this Act".

David Mullan,
Faculty of Law,
Queen's University,
Kingston, ON