Eblie v. Yankoski, (2007) 216 Man.R.(2d) 172 (QBFD)

• Judge: Yard, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: May 04, 2007
• Jurisdiction: Manitoba
• Citations: (2007), 216 Man.R.(2d) 172 (QBFD);2007 MBQB 106

Eblie v. Yankoski (2007), 216 Man.R.(2d) 172 (QBFD)

MLB headnote and full text

Temp. Cite: [2007] Man.R.(2d) TBEd. MY.037

Anno Johannes Roelof Eblie (petitioner) v. Michelle Christine Blanche Yankoski (respondent)

(FD 06-01-81672; 2007 MBQB 106)

Indexed As: Eblie v. Yankoski

Manitoba Court of Queen's Bench

Family Division

Winnipeg Centre

Yard, J.

May 4, 2007.

Summary:

In a family law proceeding, Eblie filed an affidavit in support of a motion seeking relief on procedural and property issues. The judge who heard the motion refused to grant any of the procedural or substantive relief sought. On a subsequent motion, Yankoski sought to expunge portions of the affidavit.

A Master of the Manitoba Court of Queen's Bench refused to determine the motion on the basis that it was improper to alter the record once evidence had been considered by a judge and an order pronounced on the basis of that evidence. Yankoski appealed.

The Manitoba Court of Queen's Bench, in a decision reported at 211 Man.R.(2d) 153, allowed the appeal, agreeing to hear and determine the motion to expunge on its merits. Fifteen of the 45 paragraphs of the affidavit were struck in whole or in part. The parties made submissions on costs.

The Manitoba Court of Queen's Bench, Family Division, awarded Yankoski party and party costs of $1,400 plus disbursements to be paid personally by counsel for Eblie.

Barristers and Solicitors - Topic 841

Duty to court - Liability for costs - General - The Manitoba Court of Queen's Bench, Family Division, reviewed the reported cases in Manitoba in which the circumstances had been found to justify an award of costs against counsel personally - See paragraphs 9 to 14.

Barristers and Solicitors - Topic 842

Duty to court - Liability for costs - For improper conduct - In a family law proceeding, Eblie filed an affidavit in support of a motion seeking relief on procedural and property issues - Yankoski moved to expunge portions of the affidavit - A Master refused to determine the motion on its merits - Yankoski's appeal of the refusal was allowed and the court agreed to determine the motion - Fifteen of the 45 paragraphs of the affidavit were struck in whole or in part - The parties made submissions on costs - The Manitoba Court of Queen's Bench, Family Division, awarded Yankoski party and party costs of $1,400 plus disbursements to be paid personally by counsel for Eblie - Yankoski was wholly successful on her appeal of the refusal and substantially successful on the motion's merits - The materials struck clearly and obviously breached a number of fundamental rules regarding presentation of evidence in affidavits - Eblie's counsel had caused costs to be incurred without reasonable cause - Further, it was difficult to accept that the materials were not prepared and filed for the improper purpose of prejudicing the court against Yankoski - An intention to gain undue advantage and to defeat justice clearly warranted an award of costs against counsel personally - See paragraphs 15 to 30.

Barristers and Solicitors - Topic 1577

Relationship with client - Liability for costs - For failure to comply with Rules of Court - [See Barristers and Solicitors - Topic 842 ].

Cases Noticed:

Gabb v. Gabb (2001), 153 Man.R.(2d) 157; 238 W.A.C. 157; 2001 MBCA 19, refd to. [para. 4].

Young v. Young et al., [1993] 4 S.C.R. 3; 160 N.R. 1; 34 B.C.A.C. 161; 56 W.A.C. 161, refd to. [para. 11].

Hunter v. Hunter (2000), 153 Man.R.(2d) 101; 238 W.A.C. 101; 2000 MBCA 138, refd to. [para. 12].

R. v. Smith (K.D.) (1999), 133 Man.R.(2d) 89 (Q.B.), refd to. [para. 12].

Myers v. Elman, [1940] A.C. 282 (H.L.), refd to. [para. 12].

M.E.M. v. E.O.S. and J.K.B. (1996), 113 Man.R.(2d) 186; 131 W.A.C. 186 (C.A.), refd to. [para. 13].

Cadotte v. Cadotte (1994), 92 Man.R.(2d) 242; 61 W.A.C. 242 (C.A.), refd to. [para. 13].

Coates v. Coates, [1990] M.J. No. 451 (Q.B. Master), refd to. [para. 13].

Bouteiller v. Bouteiller (1997), 116 Man.R.(2d) 153 (Q.B. Fam. Div.), refd to. [para. 14].

Sutton v. Sutton (1985), 33 Man.R.(2d) 78 (Q.B. Fam. Div.), refd to. [para. 29].

Authors and Works Noticed:

Law Society of Manitoba, Code of Professional Conduct, c. 9 [para. 21].

Counsel:

Allan Dueck and Candray D. Mehkary, for the petitioner;

Barry L. Gorlick, Q.C., and Maria M. Mitousis, for the respondent.

This matter was heard by Yard, J., of the Manitoba Court of Queen's Bench, Family Division, Winnipeg Centre, who delivered the following judgment on May 4, 2007.