Mireault et al v Podolsky et al, 2020 MBCA 9

Citation: Mireault et al v Podolsky et al, 2020 MBCA 9 Date: 20200123 Docket: AI19-30-09276 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Barbara M. Hamilton Mr. Justice Marc M. Monnin Madam Justice Lori T. Spivak BETWEEN : AUDREY CHRISTINE PODOLSKY ) MIREAULT and ARLENE DONNA ) W. M. Onchulenko KOWALCHUK ) for the Appellants ) (Applicants) Respondents ) I. B. Scarth ) for the Respondents - and - ) A. C. Podolsky Mireault and ) A. D. Kowalchuk ROBERT LARRY PODOLSKY, KENNETH ) WILLIAM PODOLSKY, VALERIE ELAINE ) E. N.

Blouw MACLEOD and JUDITH DORIS LEHN ) for the Respondent ) The Estate of John Allan (Respondents) Appellants ) Podolsky ) - and - ) Appeal heard and ) Decision pronounced: SYLVIA PODOLSKY as the Executrix of ) January 20, 2020 THE ESTATE OF JOHN ALLAN ) PODOLSKY ) Written reasons: ) January 23, 2020 (Respondent) Respondent ) On appeal from 2019 MBQB 32 SPIVAK JA (for the Court): [ 1 ] Robert Larry Podolsky, Kenneth William Podolsky, Valerie Elaine MacLeod and Judith Doris Lehn (the respondents) appeal the decision of the application judge which set aside the Master’s decision and ordered that three parcels of land owned by the parties be listed for sale pursuant to section 19(1) of The Law of Property Act , CCSM c L90 .

The applicants had filed a notice of application seeking partition or sale of the parcels and, by consent, the matter was referred to the Master, who ordered the sale of one of the parcels of land. We dismissed the appeal at the hearing with brief reasons to follow. These are those reasons. [ 2 ] The parties are siblings except for the widow of John Allan Podolsky, who is the executrix of his estate and sister-in- law to the other parties (the executrix). Each is a registered owner of an undivided 1/7 interest in the three parcels of land.

The applicants wished to sell the land in its entirety while the respondents wanted portions of the land to remain in the family. The Master ordered the sale of only one parcel, as he concluded that this would be sufficient to satisfy the applicants’ interests. [ 3 ] While the executrix took no position at the proceeding before the Master, she successfully moved before the application judge pursuant to Manitoba, Court of Queen’s Bench Rules , Man Reg 553/88 , r 62.01(13), to file an affidavit in support of the applicants’ position that all of the land be sold.

Prior to the hearing, the respondents had not yet cross-examined her on her affidavit and sought an adjournment to do so. The application judge denied the adjournment and stated that, regardless of the content of the affidavit, the applicants and the executrix had a prima facie right to an order for sale in the absence of any oppressive or vexatious behaviour.

Given that the sale of the one parcel would not satisfy payment of these interests, he allowed the appeal and ordered the sale of the three parcels collectively, with a right of first refusal to the respondents. [ 4 ] The respondents essentially argue that the application judge erred in admitting the executrix’s affidavit into evidence

and in ordering the sale of all three parcels, which did not allow the respondents to keep any part of the land. [ 5 ] The decisions of the application judge were discretionary in nature. The standard of review of an appeal of a discretionary decision is highly deferential.

As noted by this Court in Perth Services Ltd v Quinton et al , 2009 MBCA 81 ; and Mucz et al v Popp et al , 2018 MBCA 6 , failing a misdirection by the judge on the law or the facts, this Court will not intervene unless the order is so clearly wrong as to amount to an injustice. [ 6 ] We are all of the view that the respondents have failed to demonstrate any material misapprehension of the facts or error in law.

Moreover, we have not been convinced that the decision of the application judge is wrong, let alone so clearly wrong as to amount to an injustice. [ 7 ] The application judge correctly concluded that, pursuant to Queen’s Bench r 62.01(13), the appeal of the Master’s decision is a fresh hearing where the judge hearing the appeal can substitute his or her own discretion.

In admitting the executrix’s affidavit into evidence and disallowing cross-examination, he appropriately considered the principle of proportionality and that, irrespective of the admission of any further evidence, the executrix could restate the estate’s position in support of the applicants on the fresh hearing before him. Key to his decision was the prima facie right to an order for sale and the change of the executrix’s position, which rendered the sale of the one parcel insufficient to satisfy the interests of the two applicants and the executrix.

Importantly, the application judge also provided reasonable protection to the respondents in the order; in particular, a right of first refusal. [ 8 ] We see no basis for appellate intervention. Therefore, the appeal was dismissed. As for costs in this Court, we order two sets of costs in accordance with Tariff C against the respondents—one in favour of the applicants and the other in favour of the executrix. JA JA JA