Oliver et al v Blais et al, 2015 MBCA 115

Citation: Oliver et al v Blais et al, 2015 MBCA 115 Date: 20151209 Docket: AI15-30-08315 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Mr. Justice Alan D. MacInnes Mr. Justice William J. Burnett BETWEEN : ) Bryan Oliver BARRY OLIVER, BRYAN OLIVER, ) on his own behalf and DOUGLAS OLIVER, KIMBERLEY ) on behalf of all Appellants MAXWELL ) ) G. P. S. Riley and ) S. A.

Gabor (Applicants) Appellants ) for the Respondents ) ) Appeal heard: ) September 22, 2015 - and - ) ) Judgment delivered: ) October 13, 2015 ) SANDRA BLAIS and ) Motion under Court of SHELLEY THOMAS ) Appeal Rule 46.2 ) ) Decision pronounced: (Respondents) Respondents ) December 9, 2015 PER CURIAM [ 1 ] The applicants move for an order pursuant to Rule 46.2 of the Court of Appeal Rules , Man Reg 555/88R, for the rehearing of their appeal that was dismissed on October 13, 2015.

No certificate of decision has yet been entered. [ 2 ] The applicants filed a memorandum of argument in support of their motion; the respondents filed a memorandum of argument in response to the motion, and then the applicants filed a reply. [ 3 ] For the following reasons, we are satisfied that oral argument on the motion for a rehearing is not required and that the applicants have not met their heavy burden of establishing special or unusual circumstances that would justify the Court rehearing the appeal. [ 4 ] The applicants appealed from the trial judge’s decision dismissing their application to invalidate their father’s last will and testament and seeking a constructive trust interest in his estate.

Costs were awarded by the trial judge against the applicants on a lawyer and client basis. [ 5 ] In their notice of appeal, the applicants raised 27 grounds of appeal, and in their factum they listed 8 issues. The appeal turned largely on factual findings made by the trial judge and, after a careful review of the facts and arguments, this Court found that the trial judge had not made any palpable and overriding error in relation to the facts.

In addition, this Court also found that the trial judge did not misunderstand or misapply the law and that he exercised his discretion appropriately (see 2015 MBCA 99 at para 4 ). [ 6 ] The applicants apply for a rehearing on many grounds including: - that this Court was in error in finding that the trial judge did not misapply the law;

- that the judgment does not reflect the argument presented at the appeal hearing; - that this Court did not rule on the ground of appeal with respect to unjust enrichment; - that the award of costs violates

section 12 of the Canadian Charter of Rights and Freedoms prohibiting cruel and unusual punishment; - that “allowing our non aboriginal father to strip his M e tis wife (our mom) of her property and having the courts enforce this, violates section 35(4) of the [ Charter ]”; and - that the principle of mootness violates section 35(4) of the Charter as well. [ 7 ] The rehearing of an appeal is an extraordinary remedy that is rarely granted. It is to be granted only in exceptional circumstances, where the interests of justice demand it.

The heavy burden for a rehearing may be satisfied in circumstances including, but not limited to, where: 1. there is a patent error on a material point on the face of the reasons; 2. the appeal was decided on a point of law that counsel had no opportunity to address, and which point could not have reasonably been foreseen and dealt with at the hearing; or 3. the court has clearly overlooked or misapprehended the evidence or the law in a significant respect and there is a consequential serious risk of miscarriage of justice.

See Samborski Garden Supplies Ltd v MacDonald (Rural Municipality) , 2015 MBCA 53 , 319 ManR (2d) 138; R é millard v R é millard , 2015 MBCA 42 , 319 ManR (2d) 94; Director of Child and Family Services (Man) v AC et al , 2007 MBCA 59 , 214 ManR (2d) 177; and Willman v Ducks Unlimited (Canada) , 2005 MBCA 13 , 192 ManR (2d) 39. [ 8 ] The applicants’ position centers on the third point, submitting that this Court has misapprehended the evidence and the law. [ 9 ] Fundamentally, their argument is that if this Court disagrees with the arguments they submitted at the appeal hearing, then it must follow that we have misapprehended those arguments.

In essence, they wish to reargue matters argued in their factum or at the hearing. For example, they argue that the Court failed to deal with their argument regarding unjust enrichment. While the Court stated that the case dealt largely with factual issues, the Court also stated that the trial judge did not misapply the law.

In other words, the applicants did not convince us that the trial judge erred in his application of the legal principles related to unjust enrichment so as justify appellate intervention. [ 10 ] In one instance, the argument related to section 35(4) of the Charter , the applicants wish to raise matters on a rehearing not raised before by them. I would point out that, even if there were a basis to the section 35(4) argument, there was no evidence before us that the mother was M é tis.

It was never mentioned until now. [ 11 ] A motion for a rehearing is not to be used as a “second kick at the can”, to revisit the unsuccessful arguments made at trial and appeal. “To allow a rehearing in such circumstances would too quickly sacrifice the important principle of finality in litigation which is central to the proper administration of justice” ( Samborski at para 24). [ 12 ] The motion for a rehearing of the appeal is dismissed with costs. JA JA JA