While I was correct in predicting the outcome of the recent application objecting to the disinternment of Cst. Leo Johnston, it turns out that the argument centred on something different. I guess that is a hazard of relying solely on reported evidence.
I had suggested that Kelly Basness (also known as Kelly Johnston) would be successful in being allowed to disinter her husband's remains and move them to the RCMP depot in Regina based on her standing as administrator of her husband's estate. However, according to Johnston v. Alberta (Director of Vital Statistics) 2007 ABQB 597, the court case centred on whether the Director of Vital Statistics applied the appropriate tests and followed the correct procedure when deciding to issue the permit to disinter to Kelly. It was an application for judicial review of the decision, with Justice Thomas determining that based on the standard of reasonableness, the decision the Director made to issue the permit would stand.
What is interesting to note is that s. 11 of the Cemeteries Act General Regulation, Kelly Basness had priority to Leo Johnston's parents in determining his final resting place because she was his spouse, not because she was administrator of his estate. In fact, the Regulation only recognizes personal representatives named in a will and does not mention administrators at all. However, as Justice Thomas referenced in his decision, that section is likely there to deal with cases where there is a dispute as to the initial disposition of remains. In most circumstances, the decision as to disposition of remains must be made before there can be any proceedings taken to appoint an administrator.
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