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With respect to the notion of disruption to public finances, it is worth noting the SCC's 1998 decision in Re Eurig: (1998) 165 DLR (4th) 1. The province of Ontario had enacted legislation that imposed certain probate "fees." On the death of her husband, Mrs Eurig paid the fee under protest after a trial judge upheld the validity of the legislation. The SCC subsequently held, however, that her objection was well founded as the "fee" in fact was an constitutionally prohibited tax. The widow therefore sought restitution of her payment.

Major J held that the plaintiff was entitled to restitution, but he also qualified his order so as to avoid disrupting public finances.

"An immediate declaration of invalidity would deprive the province of the revenue derived from probate fees, with no opportunity to remedy the legislation or find alternative sources of funding. Probate fees have a lengthy history in Ontario, and the revenue derived therefrom is substantial. For example, the evidence presented to this Court indicated that in 1993 and 1994, probate fees collected in Ontario totalled $51.8 million and $52.6 million, respectively. This revenue is used to defray the costs of court administration in the province. An immediate deprivation of this source of revenue would likely have harmful consequences for the administration of justice in the province. The declaration of invalidity is therefore suspended for a period of six months to enable the province to address the issue."

In response, the Ontario government introduced legislation that retroactively enacted the same tax in a constitutionally acceptable form. In a modicum of decency, however, it expressly exempted Mr Eurig's estate from its application.

Mitchell McInnes