Mucz et al v Popp et al, 2018 MBCA 6

Citation: Mucz et al v Popp et al, 2018 MBCA 6 Date: 20180124 Docket: AI17-30-08902 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Madam Justice Barbara M. Hamilton Mr. Justice Christopher J. Mainella BETWEEN : CHERYL ANGELA MUCZ and ) D. G. Ward, Q.C. and CAREN AGNES SYCH ) E. N. Blouw ) for the Appellants (Applicants) Respondents ) ) J. E. Crane - and - ) for the Respondents ) MICHAEL JOHN POPP and ) Appeal heard and BARRY MICHAEL POPP ) Decision pronounced: ) January 24 , 2018 (Respondents) Appellants ) On appeal from 2017 MBQB 101 mainella JA (for the Court): [ 1 ] This is an appeal from a judgment for the sale of land located near Winnipeg under

section 20 of The Law of Property Act , CCSM c L90 (the Act ). [ 2 ] The parties, who are siblings, are in a dispute as to the future of what was their parents’ family farm. As a result of absolute bequests from their late mother, the parties now own the land as tenants in common. The parties did not enter into a co- ownership agreement when they took title to the land. [ 3 ] The applicants, Cheryl Angela Mucz (Cheryl) and Caren Agnes Sych (Caren), have no interest in farming and want to sell their interests for the highest price.

Their brothers, Michael John Popp (Michael) and Barry Michael Popp (Barry), want Barry to continue farming the land and have unsuccessfully offered to purchase their sisters’ respective interests based on two appraisals. The complicating factor is that, while the sisters have been offered a premium in excess of the appraised value, an arms-length land developer has made an unsolicited expression of interest in purchasing the land for an even higher price.

Each of the sisters would receive more for their interest in the land if it were sold to the land developer as opposed to their brothers. [ 4 ] The brothers resisted the application for the compelled sale on essentially two grounds: the sisters came to court with unclean hands or acted vexatiously (by rejecting a fair offer) and sale of the land to a third party would be oppressive (as it would prejudice Barry’s livelihood as a farmer and forever end the family’s connection to the land) (see Collins (Keith

G) Ltd v McKenzie , 2005 MBCA 35 at para 18 ; Dickson v Dickson , 2009 MBQB 274 at para 126 ; and Chevalier v Chevalier , 2012 MBQB 208 at paras 27-31 ). [ 5 ] Decisions to grant or refuse an order of partition or sale under the Act are discretionary in nature (see Collins at para 18; and Simcoff v Simcoff , 2009 MBCA 80 at para 50 ).

Accordingly, the standard of review on an appeal is highly deferential; an appellate court may only interfere if there has been a misdirection or the decision is so clearly wrong as to amount to injustice (see Perth Services Ltd v Quinton et al , 2009 MBCA 81 at para 25 ). [ 6 ] While the reasons of the application judge are limited as to his findings and as to why a compelled sale was more advantageous than the alternative of partitioning the land amongst the parties, we have not been persuaded that there is reason to interfere with his decision that there be a court-supervised sale of the land to the highest bidder subject to the right of Barry to match any offer made by a third party within one week.

While the brothers made an eminently reasonable offer to their sisters for their interests in the land in excess of the appraised value, there is nothing improper, let alone egregious, about the sisters wanting to attempt to obtain an even higher price given there is a reasonable prospect of such based on the land developer’s genuine interest in purchasing the land. In addition, while the brothers may have a sentimental attachment to the land and the sale of it may impair Barry’s farming operations, such

inconvenience or hardship is not sufficient reason, nor would it result in the circumstances to an injustice, to refuse the sisters their prima facie right as tenants in common to sell the land. [ 7 ] In the result, the appeal is dismissed with costs. JA JA JA