Janz et al v Janz et al, 2016 MBCA 39

Citation: Janz et al v Janz et al, 2016 MBCA 39 Date: 20160418 Docket: AI14-30-08312 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Holly C. Beard Mr. Justice William J. Burnett Madam Justice Janice L. leMaistre BETWEEN : MARIE JANZ and ) L. W. Donald and MARCIA ANN ZABOLOTNEY ) R. P. Majewski ) for the Appellants (Applicants) Respondents ) ) E. G. Zazelenchuk - and - ) for the Respondents ) DENNIS MALCOLM JANZ and ) Appeal heard: ROBERT MURRAY JANZ as Executors ) November 2, 2015 of the Estate of Douglas Ovas Janz ) ) Judgment delivered: (Respondents) Appellants ) April 18, 2016 BEARD JA I. THE ISSUE [ 1 ] This is an appeal of an order granted under r 38.09(

b) of the Manitoba Court of Queen’s Bench Rules , wherein the motion judge granted the motion of the applicants (Marie and Marcia) and directed the trial of four specified issues. The respondents (Dennis and Murray) have appealed that order on the following bases: (

i) that the motion judge erred in law in failing to evaluate the evidence before him and in failing to determine whether there is a substantial dispute of fact with respect to each of the four issues raised by the applicants prior to directing a trial of those issues pursuant to r 38.09(b); (ii) the motion judge erred in law in ordering the trial and ordering the respondents to defend a statement of claim on the issue of the shareholder’s loan and the payment of rent for land on which they have no personal liability; (iii) the motion judge erred in misapprehending the proceedings before him both in relation to the matters for which an order directing trial was sought and with respect to the issue of the oil royalties; and (iv) the motion judge erred in exercising his discretion to direct a trial without first reviewing the evidence and identifying the specific substantial disputes of fact, which resulted in an injustice to the respondents.

II. THE FACTS [ 2 ] This matter involves the administration of the estate of Douglas Ovas Janz (Doug), who passed away on July 19, 2007, when he was 88 years old. The parties are four of Doug’s five children. The fifth child, James Archibald Janz (Jim), has filed an affidavit but is not a party to the litigation. That said, his affidavit is generally supportive of the respondents. The children presently range in age from 63 to 70 years old, and some of them are now retired. [ 3 ] The respondents are the executors of Doug’s estate pursuant to a will dated September 1, 2000.

The validity of that will is not at issue. In that will, Doug left a piece of farm land legally described as SE ¼ 13-7-22 WPM (the home quarter) to Dennis and Murray, he made two small monetary bequests and directed that the residue of his estate be divided equally among Marie, Marcia and Jim (the residual beneficiaries). [ 4 ] A brief history of the family will explain the context of the issues. Doug and his first wife (the mother of his children)

farmed near Brandon, acquiring the home quarter from Doug’s father in 1966. Dennis and Murray began actively farming with Doug in the early 1970s and, effective January 1, 1977, they incorporated Do-Mur-Den Farms Ltd. (the Corporation) for the purpose of their joint farming operation. The other children chose other career paths. [ 5 ] Doug, Dennis and Murray each owned farm land individually, which was rented to the Corporation, while the Corporation was responsible for the farming operation. [ 6 ] Doug wanted to retire, so, in 1997, he transferred his shares in the Corporation to Dennis and Murray.

The transaction was structured as a sale by Doug to Dennis and Murray, with Dennis and Murray each signing a promissory note in favour of Doug for the value of the shares. Dennis and Murray then each gave Doug a cheque to pay their loans, and Doug immediately gave each his cheque for the same amount. The end result was that Dennis and Murray acquired the shares without paying Doug for them. [ 7 ] Doug retained ownership of the home quarter, on which his house and the farm buildings were located.

Doug continued to live in the house, but, as Dennis and Murray required the use of the farm buildings to continue the farming operation, the Corporation agreed to pay rent to Doug. [ 8 ] Doug remarried in 2000, and, in 2005, he and his second wife moved to Brandon. Doug had signed a power of attorney dated January 26, 2000, appointing Murray as his attorney. Doug moved into a personal care home in June 2006, after which Murray began to act under the power of attorney.

That notwithstanding, there is no proceeding that challenges Doug’s mental capacity to manage his affairs prior to his death. [ 9 ] In 2007, Dennis and Murray were approaching retirement and had an opportunity to sell the entire farming operation, including the home quarter. Doug had indicated that he was going to gift the home quarter to Dennis and Murray in his will, but he transferred it to them in February 2007, to facilitate the sale of the property.

Again, no net funds were paid to Doug for this property. [ 10 ] When the September 1, 2000 will was probated in December 2007, it still included the provision that bequeathed the home quarter to Dennis and Murray. [ 11 ] While Dennis and Murray were in the process of administering the estate, they were contacted, as Doug’s executors, to lease the mine and mineral rights on

section 13-7-22 WPM for the purpose of petroleum exploration and production. At that point, they became aware that Doug owned the rights to the mines and minerals on all of

section 13-7-22 WPM, which were on a separate title from the land. They signed the lease and received royalty payments totalling $34,560. [ 12 ] These rights were not mentioned in Doug’s will, which led to a discussion among the five children as to how both the rights and the royalty payments should be divided. Jim proposed that the royalty payments be divided equally among the five children. After a family meeting in 2008, Dennis and Murray were of the belief that Jim’s proposal was acceptable to all five of the children, and they paid out the royalty payments on that basis.

All of those cheques were accepted by the recipients. [ 13 ] At some point, Marie indicated that she was not supporting the agreement and felt that the mine and mineral rights and royalties should be divided among the three residual beneficiaries, including those that related to the home quarter. Marie retained legal counsel, as did Dennis and Murray. In June 2011, Marie filed her underlying application, which included a request for an order for disclosure and for accountings by the executors regarding the administration of Doug’s estate and by Murray, acting under the power of attorney.

Marcia later joined Marie as an applicant. [ 14 ] Affidavits were filed by all five children, extensive cross-examinations were conducted and voluminous documentation was provided by way of answers to undertakings. Further, Brian Forrest, Doug’s long-time lawyer, was cross-examined as a witness under r 39.03(1) and produced a significant number of documents. [ 15 ] The applicants then filed the motion for the order that is now under appeal requesting that a trial be directed on five issues.

They also brought forward five issues from the original application; however, several of those were resolved by agreement before or during the hearing and one was adjourned sine die . In the end, the only matter before the motion judge was to determine whether a trial should be ordered on four of the issues in the motion, being issues (

i) to (iv) in para 16 herein (the four issues). [ 16 ] In the motion, the applicants asked that a trial be directed on the following issues: (

i) whether the 1997 transfer of shares from Doug to Dennis and Murray was a gift or a sale; (ii) whether Doug’s shareholder loan was repaid; (iii) whether rent was paid by the Corporation to Doug regarding the home quarter; (iv) whether Dennis and Murray owe the estate $80,000 for the purchase of the home quarter in 2007; and (

v) whether the devise of the home quarter includes the mineral rights to that property. [ 17 ] The parties agreed that the last issue regarding the mine and mineral rights would be adjourned, and it was not an issue to be determined by the motion judge. III. THE MOTION JUDGE’S DECISION [ 18 ] The motion judge gave his decision orally, at the time of the hearing. While the motion judge gave a brief synopsis of the background and the position of each party on the four issues in his reasons, he did not review any of the extensive evidence as it related to those issues.

It would be fair to say that he had his mind made up as to the outcome of the motion before the arguments started, given that, very early on, he stated to the respondents’ counsel:

THE COURT: Okay, how do they stay on as executors then when I authorize this morning a lawsuit on behalf of Douglas Janz – because that’s where Mr. Zazelenchuk seems to be going? I say there has to be a lawsuit started to deal with the purchase price of the property – the home quarter – and there has to be a lawsuit to deal with the corporate affairs, the shareholders’ loans, the sale of the shares.

How do they stay on as executors then? [emphasis added] [ 19 ] The motion judge expressed his view on several occasions, both during the argument and in his reasons, that the applicants were unlikely to be successful, but indicated that they had the right to a trial. He did not do any analysis of the evidence to determine whether there was, in fact, a “substantial dispute of fact” (see r 38.09(b)) related to the issues that were before him. IV.

THE POSITIONS OF THE PARTIES The (Appellants’) Respondents’ Position [ 20 ] The main thrust of the (appellants’) respondents’ position is that the motion judge erred in principle by failing to refer to or to analyze the evidence in relation to the four issues that were set out in the motion or to make any determination as to whether there was any substantial dispute of fact that required a trial, as is required by r 38.09(b).

They argue that there was ample evidence presented, with no contrary evidence from the applicants, upon which to decide the four issues without ordering a trial. [ 21 ] The respondents argue that this matter should be considered in the context of the comments of the Supreme Court of Canada in Hryniak v Mauldin , 2014 SCC 7 , [2014] 1 SCR 87, regarding proportionality in the adjudication of disputes. They argue that there is an obligation on the court to dispose of issues on a

summary basis where possible, as that is a more cost effective alternative to directing a trial. [ 22 ] The respondents also argue that the motion judge erred in not addressing their argument that the applicants’ claim related to the 1997 sale of the shares by Doug to Dennis and Murray was statute-barred and, for that reason, should not be allowed to proceed. [ 23 ] Further, the respondents take the position that the motion judge came to several unfair and unsubstantiated conclusions regarding the circumstances surrounding the mine and mineral rights and the related royalties and, from that, to conclude, for example, that the respondents had abused their authority as executors and dealt dishonestly with some of the estate assets.

In doing so, he completely overlooked the evidence of Jim regarding the distribution of the royalties. The (Respondents’) Applicants’ Position [ 24 ] The (respondents’) applicants’ position is that the issues that they have raised cannot be answered on the affidavit evidence because they raise questions of credibility.

They argue that there are material facts in dispute which require an assessment of credibility to be appropriately answered. [ 25 ] On the question of whether their claim regarding the 1997 sale of the shares is statute-barred, they argue that “It is well established law that when a debtor of the deceased becomes the executor of the deceased’s estate, equity presumes that he has paid the debt to the estate.” They argue that the law is that the money is then in their hands as an estate asset and would fall under an exemption to a limitation defence relating to trust funds. V.

LEGISLATION AND STANDARD OF REVIEW [ 26 ] The underlying application has been filed under r 14.05(2)(

c) as it relates to the administration of an estate, the execution of a trust and the declaration of an interest in land. The motion narrows the issues and asks that a judge exercise his discretion under r 38.09 to order a trial of those issues. This provision states: DISPOSITION OF APPLICATION 38.09 On hearing an application, a judge may, (

a) allow or dismiss the application or adjourn the hearing, with or without terms; or (

b) where satisfied that there is a substantial dispute of fact, direct that the application proceed to trial or direct the trial of a particular issue or issues and, in either case, give such directions and impose such terms as may be just, subject to which the proceeding shall thereafter be treated as an action. [ 27 ] An appeal from a decision under r 38.09 was considered by this Court in Garwood v Garwood Estate , 2007 MBCA 160 , 225 ManR (2d) 30, wherein Hamilton JA described the standard of review as follows (at paras 37-39): The appellant’s application called for the judge to exercise his discretion under Queen’s Bench Rule 38.09. . . .

As is well known, a discretionary order is not to be set aside lightly. As explained recently in Homestead Properties (Canada)Ltd. v. Sekhri et al. (2007), 2007 MBCA 61 , 214 Man.R. (2d) 148; 395 W.AC. 148; 2007 MBCA 61, Freedman, J.A., wrote(at para. 13): “... that discretion should not be overturned unless the judge has misdirected himself or if his decision is so clearly wrong as to amountto an injustice (Elsom v. Elsom, (SCC), [1989] 1 S.C.R. 1367; 96 N.R. 165, at 1375; see also R. v.

Regan (G.A.),2002 SCC 12 , [2002] 1 S.C.R. 297; 282 N.R. 1; 201 N.S.R. (2d) 63; 629 A.P.R. 63; 2002 SCC 12, at para. 117).” As to whether there has been misdirection by the judge, the standard of review is correctness. With respect to questions of fact andmixed fact and law, the standard of review is palpable and overriding error, “unless an error of mixed fact and law involves an errorrelating to an extricable principle of law, in which case the standard of correctness applies to that extricable legal question.” SeeHomestead Properties applying Housen v.

Nikolaisen et al., 2002 SCC 33 , [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1;272 W.A.C. 1; 2002 SCC 33 (at para. 13). VI. ANALYSIS Mine and Mineral Rights and Royalties [28] It was clear from the beginning of the proceeding that the motion judge had formed a negative opinion of the respondents,an opinion that he expressed on many occasions during the argument and in his reasons. Early in the argument, the respondents’ counselstated that the difference over the royalty payments was minor, involving only $1,700 for each respondent, and that they had acted ingood faith.

The motion judge then stated: THE COURT: You can repeat that as long as you want. The one person in court who doesn’t believe that is me, so keep repeating itthat they acted in good faith because they didn’t -- and that’s my judicial opinion. [29] Later during the argument, the motion judge stated: THE COURT: Well actually there was and there still is a substantive dispute. The executors did not fulfil their duty. They wentcontrary to the Will and they have not remedied that.

They’ve agreed to – finally, this morning – and as a result of that they’ve lost a lotof their credibility that you’ll be depending upon to buttress these paper transactions. [30] This conclusion is based on a misunderstanding of the evidence and the issues surrounding the mine and mineral rightsand royalties.

First, the motion judge stated that the respondents “decided themselves that the mines and minerals would not be dividedup in accordance with the Will”, and that they acted “contrary to their father’s own instructions”. [31] In fact, the mine and mineral rights were not mentioned at all in the will, which is the cause of the problem. The mineand mineral rights and related royalties relate to all of

section 13-7-22 WPM. At issue is the entitlement to the one-quarter of the rightsand royalties that are attached to the home quarter, the legal question being whether they are considered to be “land” and, as such, werebequeathed to the respondents together with the home quarter, or are separate from the home quarter and form part of the residual assets. This is a live legal issue, the resolution of which will depend upon the proper construction of the will.

Thus, it was not correct to say thatthe respondents “decided themselves that the mines and minerals would not be divided up in accordance with the Will.” [32] The motion judge also stated that “[t]hey took things into their own hands” and “the evidence basically is uncontradictedthat Dennis and Murray decided themselves that the mines and minerals would not be divided up in accordance with the Will.

They feltsome entitlement to some or all of them and eventually purported to say that there was an agreement among everybody that the minesand minerals were to be divided equally.” [33] The conclusion that the respondents decided that the royalties should be divided equally does not accord with theevidence. In fact, Jim stated in his affidavit and confirmed in his cross-examination that he was of the view that the royalties should besplit evenly and he made that known to the respondents.

The respondents confirmed that the equal sharing was Jim’s idea, which wasnot contradicted. [34] The motion judge also seems to have been mistaken as to the amount of money that was at stake from the royalties, as hesaid, “[t]hey clearly got more money than in their possible wildest dreams they should have ever had by any legal position”. In fact, thetotal royalties paid was $34,560, and the amount received by each respondent under the equal sharing payment was $6,912. Thus, themaximum amount lost by each of the respondents is $6,912.

This hardly fits the description of the motion judge. [35] Thus, the motion judge’s negative assessment of the respondents’ credibility is based on a misapprehension of the

evidence and of the legal issues related to the mine and mineral rights and royalties. His credibility finding clearly affected his entire view of the respondents, as demonstrated by his many references to them in very negative terms such as that they were not acting in good faith, that they did not fulfil their duty and that they had lost a lot of credibility.

This, in turn, affected his view of the evidence, as demonstrated by his statement that “they’ve lost a lot of their credibility that you’ll be depending upon to buttress these paper transactions.” [ 36 ] A credibility finding is a finding of fact and, assuming without deciding that it was appropriate for the motion judge to make such a finding, it is entitled to deference and should be reviewed on the standard of palpable and overriding error. In this case, for the reasons set out above, I am satisfied that the errors in this regard are both palpable and overriding.

Substantial Dispute of Fact [ 37 ] Before a motion judge can direct the trial of an issue or issues, he must be “satisfied that there is a substantial dispute of fact” pursuant to r 38.09(b). Duval J explained the application of this criterion in Smith Estate , Re , 2011 MBQB 49 , 263 ManR (2d) 89 (at para 52 ): It is, therefore, incumbent on the court to consider whether there is a substantial dispute of fact(

s) requiring credibility determinations in respect of the issues raised on this application prior to directing a trial of the issues. A determination as to whether there is sufficient merit in the challenge to warrant a trial requires this court to firstly consider, in a

summary manner, the evidence led in respect of the issues, and to determine whether that evidence is contradictory and requires a credibility determination. [ 38 ] While both counsel referred to this criterion, the only finding by the motion judge of a substantial dispute of fact was in relation to the mine and mineral rights and royalties, as reflected in his comments set out at para 29 herein.

In the end, the parties agreed that the issue of the entitlement to the mine and mineral rights and royalties was a legal issue, and it was not included as an issue to be determined by the motion judge. [ 39 ] The motion judge made many statements throughout the argument and in his reasons that indicate that he was mistaken as to the nature of the criterion to be met before directing an issue for trial under r 38.09(b). [ 40 ] During argument, the motion judge made the following statements: [RESPONDENTS’ COUNSEL]: That’s right.

It would be – well, frivolous to initiate a court action that is clearly statute barred. THE COURT: Well, maybe, but that’s what Marie and Marcia want to do. I mean, they’re clearly here today. There’s material here like you wouldn’t believe, so they’re pretty serious about it. I don’t see any chance of them succeeding in any of it, but that doesn’t mean that because they don’t have a chance of success – in my opinion after looking at this file for a couple of hours – that doesn’t mean they don’t have the right to start an action, does it? . . . THE COURT: . . .

But surely, you know, you’re saying to me that Maria – or – excuse me – Marie and Marcia want these things determined. There’s no reason why I shouldn’t allow them to be determined, is there? . . . THE COURT: . . . [M]y tendency is to say you’ve raised the smoke here so why shouldn’t there be a trial on these issues? [ 41 ] In his reasons, the motion judge stated as follows: ... Marie and Marcia have called into question the sale of [Doug]’s shares and what has happened to the shareholders’ loans.

There have not been any proper explanations so far – not that there are inappropriate explanations – but so far Dennis and Murray have not had to answer in a detailed fashion to that. . . . They may well have occurred the way Dennis and Murray portray them. In fact I think that probably is the case, but certainly Marie and Marcia have the right to participate in this. The same comments really apply to the home quarter. Marie and Marcia want to know what happened to the rent on the home quarter and what happened to the sale proceeds of the home quarter.

An explanation has been proffered by Murray and Dennis, but that must be tested and therefore there should be a trial on that as well. [ 42 ] In my view, these comments raise three problems. First, the motion judge does not articulate the correct criterion to be met before a trial can be ordered under r 38.09(b). His comments suggest that he is of the view that, if the applicants want to have a trial, then he should order a trial. The fact that one or more parties wants a trial does not meet the test for ordering the trial of an issue under the rule – there has to be a substantial dispute of fact.

The failure to apply the correct law is an error of law.

[ 43 ] Further, the motion judge’s statements that “so far Dennis and Murray have not had to answer in a detailed fashion” regarding the sale of the shares and the payment of the shareholder loans does not reflect the substantial amount of evidence that was provided to the court. They filed affidavits, as did others, and were subjected to cross-examination.

The motion judge did not review, analyze or even refer in any meaningful way to that evidence in his reasons. [ 44 ] Finally, the motion judge’s statement that “a n explanation has been proffered by Murray and Dennis, but that must be tested” regarding the payment of rent to Doug on the home quarter does not reflect a proper application of the rule. It is for the motion judge to review the evidence to determine whether, after due consideration of all of the evidence and the arguments, there remains a substantial dispute of fact.

The time for testing is at the motion stage, not by simply referring the matter for trial because some of the parties are not in agreement. An error in the application of the law is also an error of law. Hryniak v Mauldin [ 45 ] The Supreme Court of Canada has recently addressed the growing concerns about access to justice in civil proceedings in its decision in Hryniak . Karakatsanis J stated (at paras 1-5): Ensuring access to justice is the greatest challenge to the rule of law in Canada today. Trials have become increasingly expensive and protracted.

Most Canadians cannot afford to sue when they are wronged or defend themselves when they are sued, and cannot afford to go to trial. Without an effective and accessible means of enforcing rights, the rule of law is threatened. Without public adjudication of civil cases, the development of the common law is stunted. Increasingly, there is recognition that a culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system.

This shift entails simplifying pre-trial procedures and moving the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case. The balance between procedure and access struck by our justice system must come to reflect modern reality and recognize that new models of adjudication can be fair and just.

Summary judgment motions provide one such opportunity. ... In interpreting these provisions, the Ontario Court of Appeal placed too high a premium on the “full appreciation” of evidence that can be gained at a conventional trial, given that such a trial is not a realistic alternative for most litigants. In my view, a trial is not required if a

summary judgment motion can achieve a fair and just adjudication, if it provides a process that allows the judge to make the necessary findings of fact, apply the law to those facts, and is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial. To that end, I conclude that

summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims. [ 46 ] These comments, and the principle of proportionality in civil litigation, have been endorsed by this Court in Rochelle v St Clements (Rural Municipality) et al , 2014 MBCA 102 at para 5 , 310 ManR (2d) 202; Vend-all Marketing Inc v Hunter et al , 2015 MBCA 10 at paras 71-72 , 315 ManR (2d) 84; and Lelond v Park West School Division , 2015 MBCA 116 at paras 79-80 , 323 ManR (2d) 188. [ 47 ] While Hryniak dealt with a motion for

summary judgment, the principle of proportionality applies to the entire civil justice system. The goal is to improve access to the civil justice system and, to that end, to make civil proceedings more timely and less expensive. In order to achieve that goal, each step in the civil justice procedure must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims. [ 48 ] Karakatsanis J states, “The

summary judgment motion is an important tool for enhancing access to justice because it can provide a cheaper, faster alternative to a full trial” (at para 34). Proceeding by way of application, where available, and deciding issues without having a full trial are two other ways of enhancing access to justice by providing a cheaper, faster alternative to a full trial. [ 49 ] To give full meaning to the principle of proportionality as it relates to r 38.09(

b) requires that a court take a hard look at the evidence that is presented to ensure that it discloses a substantial dispute of fact before directing a trial of an issue. This certainly entails more than a finding that, if a party alleges a disagreement on an issue, a trial should be ordered. It must also permit some weighing of the evidence to determine whether an apparent dispute of fact is truly substantial or whether it disappears when the relevant evidence is examined.

If every minor dispute of fact requires that an issue be directed for trial, the rule will not fulfil the ultimate goals of reducing cost and delay and thereby increasing access to justice.

That said, once a substantial dispute of fact is identified, that dispute is not to be resolved by the motion judge but is to be referred for trial. [ 50 ] In this case, the motion judge should have done more than find that the applicants were “pretty serious” and “want these things determined.” While he stated that the applicants had questioned what had happened regarding the sale of Doug’s shares, the shareholder’s loans, and the rent and sale proceeds regarding the home quarter, the answers to those questions may have been available from the extensive evidence and many documents that were already available.

Having expressed the view that “I don’t see any chance of them succeeding” and “[things] may well have occurred the way [the respondents portrayed] them. In fact I think that probably that is the case,” this case called out for an analysis of the evidence to determine whether there was any substantial dispute of fact. His failure to do so constituted an error in the application of the law.

Conclusion [ 51 ] Having found that the motion judge erred in fact in his credibility findings related to the respondents and in law by failing to analyze the evidence to determine whether there was a substantial dispute of fact on the four issues upon which he directed a trial, his

decision to order the trial of issues is not entitled to any deference. The question, then, is, what is the appropriate remedy? [ 52 ] The respondents take the position that, given that all of the evidence is before this Court, this Court should decide whether there is any substantial issue of fact that requires a trial. They take the position that there is no such issue, and that this Court should grant their appeal and dismiss the motion.

The applicants take the position that this Court should dismiss the appeal, but that, if we grant the appeal, we should send the matter back to the Court of Queen’s Bench. [ 53 ] In the spirit of Hryniak , I would be inclined to decide the issues raised by the motion, if that would resolve the matter. In this case, however, there are many issues that have been adjourned and remain outstanding, apart from the issues raised in the motion, which will not be resolved on this appeal.

There are legal issues related to whether portions of the application are statute-barred, who is entitled to the mine and mineral rights and royalties on the home quarter and whether the proper parties are before the court. There is also the claim for an accounting by both the executors and by Murray acting under the power of attorney. [ 54 ] Given the significant number of issues that remain outstanding and do not form part of this motion or this appeal, I am of the view that the better course is to return this matter to the Court of Queen’s Bench so that all matters can be determined in the same court. VII.

DECISION [ 55 ] Having found that the motion judge erred both in fact and in law, I would grant the appeal and set aside the order that was granted. For the reasons set out above, I would send the matter back to the Court of Queen’s Bench for a rehearing, which will be before a different judge, who will make his or her own credibility and factual findings, to the extent that such findings are appropriate on a motion under r 38.09(b). [ 56 ] I would order that costs on the appeal be in the cause. JA I agree: JA I agree: JA