In Janz et al v Janz et al, 2016 MBCA 39, the Court of Appeal set aside a lower court order under QB Rule 38.09(b) directing a trial on four issues arising from the administration of an estate. The court found that the motion judge erred in fact in his credibility findings 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. While the appeal court would have been inclined, “in the spirit of Hryniak,” to simply decide whether a trial was required, outstanding issues made a rehearing more practical. The court’s comments on proportionality in Rule 38.09 motions are instructive: 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. (para. 49)

The master dismissed the executor’s application to pass accounts in Estate of Mary I. McLean, 2016 MBQB 74, finding that he had no jurisdiction to do so in light of the executor’s failed stewardship. The executor, the deceased’s nephew, had purchased the deceased’s home for less than half its sworn value, and defended his actions by arguing that it was always the deceased’s intent that he would have her land and premises.

In Penner v. Brandon et al., 2016 MBQB 64, the court was asked to consider whether a residual clause in a will was capable of two constructions (one resulting in an intestacy and the other not) and, if so, whether to prefer the one that did not. The court rejected the grandchildren’s argument that the first two clauses dealing with the deceased’s property (a bequest to the testator’s wife who predeceased him and a bequest to the testator’s children, both of which set out a fraction of the "rest and residue of the estate") were gifts of the "residuary of the estate" whereas the final gift to them was a gift of the "residue of the residuary estate" and that only if the latter lapses is there an intestacy. The court found no substantive difference in the wording of the three clauses and ordered that the wife’s share failed and would be distributed pursuant to the provisions of The Intestate Succession Act.

A Gimli subdivision homeowner was unsuccessful in quashing conditional use and variation orders allowing for the construction of a condominium project with a height variance in Saurette v. R.M. of Gimli, 2016 MBQB 41. While the homeowner had standing to challenge the validity of the orders, the scope of review of the jurisdictional grounds referred to in The Municipal Act is very narrow, said the court, and to succeed the homeowner would have to establish that the R.M. made a true jurisdictional error in the sense that the tribunal was acting outside the scope of its authority irrespective of whether the ultimate decision was right or wrong. The court found that none of the homeowner’s complaints established jurisdictional error, bad faith or breach of procedural unfairness by the R.M.

A Strong Endorsement of Testamentary Freedom: Spence v BMO Trust (The Court); Testamentary Freedom Reaffirmed (Slaw); and Daughter to seek SCC leave for racist bequest (Legal Feeds) – these articles comment on the Ontario Court of Appeal decision in Spence v. BMO Trust Company, 2016 ONCA 196, constraining the scope for judicial interference with a testator’s private testamentary dispositions. The tax implications of a Canadian owning property in the United States – this Fillmore Riley LLP article reviews some of the rules affecting Canadians owning U.S. vacation property. Wrestling over Wills and Wealth in Neuberger v York – this case comment from The Court discusses Neuberger v York, 2016 ONCA 191, an Ontario Court of Appeal decision considering, among other things, the public policy considerations at play in challenges to the validity of wills. Pursuing previous owners of real property for the cost of environmental remediation – the author of this Fillmore Riley LLP article notes that recovering remediation costs became much easier with the 2014 enactment of regulatory amendments to The Contaminated Sites Remediation Act. Legal Focus On Smoking In Condominiums – this Gowlings post discusses three cases which shed light on the thorny issue of smoking in condominiums in Ontario.

Consider bringing a non-member buddy to one of these MBA section meetings: Inland Port Special Planning Authority – join members of the Municipal Law section as they discuss Bill 13, which replaces provisions of The Planning Act dealing with special planning areas. The session takes place from 5:00 – 6:30 pm on May 11, 2016, at Aikins. Medical Assistance in Dying (MAID) also known as Physician Assisted Death (PAD) – counsel for Manitoba’s first MAID case will discuss the procedural approaches taken in the case, the new Bill before Parliament, and things to keep in mind when dealing with cases of this sort at this Health Law section lunch session on May 25, 2016. The program will be held in the Law Society classroom.

The Winnipeg section of the Society of Trust and Estate Practitioners will present its final program of the season, Cross-Border Issues, on May 10, 2016. For further details or to register check the website.