Dolynchuk v D’Saint, 2018 MBCA 56

Citation: Dolynchuk v D’Saint, 2018 MBCA 56 Date: 20180511 Docket: AF17-30-08806 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Holly C. Beard Mr. Justice Christopher J. Mainella Madam Justice Jennifer A. Pfuetzner BETWEEN : ZENON JOHN DOLYNCHUK ) V. M. D’Saint ) on her own behalf (Petitioner) Respondent ) ) L. M.

Scollin - and - ) for the Respondent ) violet marion d’saint ) Appeal heard and ) Decision pronounced: (Respondent) Appellant ) May 11, 2018 PFUETZNER JA (for the Court): [ 1 ] The trial judge in this case dealt with several claims arising out of the breakdown of the parties’ common-law relationship.

Ms D’Saint (the respondent) appeals only the trial judge’s decision on the petitioner’s claim in unjust enrichment. [ 2 ] The trial judge found that the parties were in a common-law relationship for about six years and, during that time, they resided in a house that the respondent had inherited from her father. [ 3 ] The petitioner claimed that he expended his own funds on extensive renovations to the house that increased its value beyond what would have otherwise been attributable to normal market forces.

The trial judge allowed the petitioner’s claim in unjust enrichment and ordered that the respondent pay him $50,000 and costs. [ 4 ] The respondent does not argue that the trial judge erred in law. Rather, she takes issue with all of the trial judge’s factual findings and her credibility assessments. She also says that the trial judge had a reasonable apprehension of bias against her. [ 5 ] This Court will not intervene in orders made in family law cases absent a material error.

In Horch v Horch , 2017 MBCA 97 , Mainella JA wrote (at para 50): The appellate court also will not reconsider the evidence or interfere with the judge’s findings of fact unless the reasons demonstrate palpable and overriding error or an omission that gives rise to a reasoned belief that the judge forgot, ignored or misconceived the evidence in a way that affected the result (see Van de Perre [ v Edwards , 2001 SCC 60 ] at para 15). [ 6 ] In addition, appellate courts show great deference to trial judges’ credibility assessments unless there has been palpable and overriding error. [ 7 ] In her reasons, the trial judge correctly stated and applied the law of unjust enrichment and made careful and detailed findings of fact and credibility.

She found the petitioner to be a credible and truthful witness. However, she had “a lot of difficultly with the credibility of the respondent”, finding her evidence to be “exaggerated, self-serving and implausible.” The trial judge gave specific and cogent reasons for her negative assessment of the respondent’s credibility. [ 8 ] All of the impugned factual findings raised by the respondent were argued by her at trial and were specifically

addressed by the trial judge. We have carefully reviewed the record and conclude that the trial judge’s findings are supported by the evidence; there is nothing approaching an obvious error, nor did the trial judge engage in speculation. Although we can understand the respondent’s dissatisfaction with the credibility findings, they are reasonably supported by the record. [ 9 ] The Court of Appeal is not a forum to retry cases, which is essentially what the respondent is seeking.

Absent palpable and overriding error, there is no basis for this Court to interfere with the decision of the trial judge. [ 10 ] The allegation of a reasonable apprehension of bias is unfounded and without merit. [ 11 ] The appeal is dismissed with costs to the petitioner on a Tariff B basis. JA JA JA