Oliver et al v Blais et al, 2015 MBCA 99

Citation: Oliver et al v Blais et al, 2015 MBCA 99 Date: 20151013 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 (Applicants) Appellants ) S. A.

Gabor ) for the Respondents - and - ) ) Appeal heard: SANDRA BLAIS and SHELLEY THOMAS ) September 22, 2015 ) (Respondents) Respondents ) Decision pronounced: ) October 13, 2015 PER CURIAM [ 1 ] This is an appeal from the trial judge’s decision dismissing an application by the applicants 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. [ 2 ] In their notice of appeal, the applicants raise 27 grounds of appeal, and in their factum, they list 8 issues. [ 3 ] The appeal turns largely on factual findings made by the trial judge. For that reason, following extensive oral submissions, the decision was reserved, and the evidentiary record was again carefully reviewed. [ 4 ] We are unanimously of the view that there is no basis for appellate intervention.

In particular, we have not been persuaded that the trial judge made any palpable and overriding error in relation to the facts, that he misunderstood or misapplied the law, or that any exercise of judicial discretion was so clearly wrong as to amount to an injustice. [ 5 ] One issue requires short commentary. Although asked to do so, the trial judge failed to decide whether a power of attorney made by the applicants’ mother was void due to her incapacity to grant it and/or her being coerced into granting it.

The trial judge found that the use of the mother’s power of attorney by the respondents to transfer her interest in the family farm was moot as she predeceased the father, and under the terms of her will, she left her entire estate to him. While we agree with the trial judge’s conclusion, the evidentiary record is clearly sufficient to support a finding that the mother had the required mental capacity when she executed the power of attorney, and there was no evidence of coercion. [ 6 ] As noted by the trial judge, costs on a lawyer and client basis are only awarded in rare and exceptional cases.

We also agree with the trial judge that this is such a case. In our view, the trial judge did not err in exercising his discretion to award lawyer and client costs, particularly given the serious but unfounded allegations of fraud and undue influence, and the numerous unnecessary issues and proceedings raised and advanced by the applicants. [ 7 ] In their appeal materials and in oral argument, the applicants continued to advance allegations of fraud and undue influence, but they have failed to persuade us of the existence of any evidence or other basis for advancing such allegations. The appeal

is therefore dismissed with lawyer and client costs payable to the respondents on the same basis as costs were awarded in the court below. JA JA JA