Rylaarsdam v Balcaen, 2020 MBCA 91

Citation: Rylaarsdam v Balcaen, 2020 MBCA 91 Date: 20200921 Docket: AI19-30-09373 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice William J. Burnett Madam Justice Jennifer A. Pfuetzner Madam Justice Lori T. Spivak BETWEEN: RAYMOND RYLAARSDAM ) M. A. Laham Szutiak and ) A. I. Dlugosh (Applicant) Respondent ) for the Appellant ) - and - ) J. G.

Fiorino ) for the RespondentDINA BALCAEN ) ) Appeal heard and (Respondent) Appellant ) Decision pronounced: ) September 21, 2020 PER CURIAM [1] The respondent appeals a decision appointing her brother (the applicant) as sole attorney for Arie Jacob Rylaarsdam,requiring the applicant to provide an annual accounting to her and an accounting to the Master every two years (unless waived by therespondent), denying other relief and ordering her to pay costs to the applicant on a Class II Tariff basis. [2] The respondent submits that the decision should be set aside in its entirety and, in her notice of appeal and factum, sheraises numerous grounds of appeal relating to the conduct of the hearing and the decision itself. [3] The standard of review for the issues raised is summarised in Kostic v Merrill Lynch Canada Inc, 2010 MBCA 81 (atpara 41): . . .

The motion judge’s exercise of discretion is entitled to deference and should not be interfered with unless he misdirected himself orif his decision is so clearly wrong as to amount to an injustice. (See Elsom v. Elsom, (SCC), [1989] 1 S.C.R. 1367, R.v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, and Homestead Properties (Canada) Ltd. v. Sekhri et al., 2007 MBCA 61, 214 Man.R.(2d) 148.) Whether there is a misdirection with respect to a question of law is assessed on the standard of correctness.

For errors ofmixed fact and law, or fact alone, the standard 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 question. See Housen v.Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, and Homestead, at para. 13. (See also Berscheid v Federated Co-operatives et al, 2018 MBCA 27 at para 13 and the authorities referred to in that paragraph.) [4] In our view, there is no merit to the appeal.

Having carefully considered the respondent’s submissions, we are notpersuaded that the application judge erred or misdirected himself, or that his decisions were so clearly wrong as to amount to an injustice. [5] One of the respondent’s submissions requires additional comment.

The respondent says that the application judgeerred by directing the applicant to file new evidence after the close of argument. [6] After the hearing on April 10, 2019, the application judge did request that the applicant “file an affidavit in which heexplains the cash withdrawals totalling $22,564.50 from July 1, 2017, to March 15, 2019, outlined in the motion brief of therespondent”. Following receipt of that affidavit (affirmed April 29, 2019), the application judge wrote to counsel for both parties andadvised: . . .

To the extent that [the respondent] would like to respond to the explanation provided, be it in the form of a cross-examination on this

affidavit or with other evidence, I ask that this be complete by May 24, 2019 . To the extent that counsel would like to make any further submissions, I ask that these be made in written form to me. Should any such written submissions be provided, I would ask that Mr. Fiorino provide his written submission by May 31, 2019 , and Ms Laham Szutiak provide any written submission by June 7, 2019 . . . . [ 7 ] Significantly, the respondent failed to file further evidence and failed to cross-examine the applicant on his affidavit.

She did, however, file an extensive supplementary motion brief analysing all of the evidence filed by the applicant, including the evidence in his affidavit affirmed April 29, 2019. In these circumstances, we are not satisfied that the application judge erred or that the procedure utilised by him resulted in an injustice. [ 8 ] The appeal is therefore dismissed with costs in favour of the applicant on a Tariff C basis. JA JA JA