Hyczkewycz v. Hupe, 2016 MBCA 23

• Judge: Chartier, C.J.M., Beard and Mainella, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: February 10, 2016
• Jurisdiction: Manitoba
• Citations: 2016 MBCA 23;(2016), 326 Man.R.(2d) 137 (CA)

Hyczkewycz v. Hupe (2016), 326 Man.R.(2d) 137 (CA);

      664 W.A.C. 137

MLB headnote and full text

Temp. Cite: [2016] Man.R.(2d) TBEd. FE.035

Mary Viola Hyczkewycz (plaintiff/respondent) v. Paul Hupe (defendant/appellant) and Sharon Linda Hupe (defendant)

(AI 15-30-08472; 2016 MBCA 23)

Indexed As: Hyczkewycz v. Hupe

Manitoba Court of Appeal

Chartier, C.J.M., Beard and Mainella, JJ.A.

February 10, 2016.

Summary:

A husband and wife separated after 37 years of marriage. At issue was the ownership of three properties. The first was a residence that was owned solely by the wife, but had been transferred to the wife by her mother (the plaintiff). The second was a rental property that had been purchased by the plaintiff and had been transferred to the wife and plaintiff as joint tenants. The third was a cottage owned jointly by the husband and wife. The plaintiff claimed that she was entitled to a declaration that she was the sole beneficial owner of the residence and the rental property and that she was a beneficial owner of a 50% interest in the cottage. The husband moved for summary dismissal of the claim.

A Master of the Manitoba Court of Queen's Bench, in a decision reported at (2015), 316 Man.R.(2d) 51, granted the motion. The action was dismissed. The plaintiff appealed.

The Manitoba Court of Queen's Bench, in a decision reported at (2015), 320 Man.R.(2d) 126, allowed the appeal. The husband's application for summary judgment was dismissed. The husband appealed.

The Manitoba Court of Appeal dismissed the appeal.

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - [See Real Property - Topic 8024 ].

Practice - Topic 5708

Judgments and orders - Summary judgment - Bar to application - Existence of issue to be tried - [See Real Property - Topic 8024 ].

Practice - Topic 5719

Judgments and orders - Summary judgments - To dismiss action - [See Real Property - Topic 8024 ].

Practice - Topic 5724

Judgments and orders - Summary judgments - Reasons - A Master summarily dismissed a plaintiff's claim - A Queen's Bench judge overturned the decision - The defendant appealed - The Manitoba Court of Appeal dismissed the appeal - However, the court took the "opportunity to say something about reasons where a judge hearing a motion for summary judgment decides not to grant summary judgment. Judges deciding motions for summary judgment are strongly discouraged from making statements about law, where the law is in dispute, if they are referring that same legal issue back for determination by another judge. A short endorsement that the moving party has not met the test for summary judgment for a stated reason(s) is all that is required. Making statements as to the interpretation of a law in a case where the responsibility will fall to another judge in the same case to interpret that same law is an unnecessary use of judicial resources and, more importantly, jeopardizes judicial comity; the trial judge is placed in the difficult position of potentially having to disagree with a colleague." - See paragraph 5.

Real Property - Topic 8014.1

Title - Registration of instruments, etc. - Land titles system - Registration - Property interests held in trust - [See Real Property - Topic 8024 ].

Real Property - Topic 8024

Title - Registration of instruments, etc. - Land titles system - Certificate of title - Reliance on issue of - A husband and wife separated after 37 years of marriage - At issue was the ownership of three properties - The first was a residence that was owned solely by the wife, but had been transferred to the wife by her mother (the plaintiff) - The second was a rental property that had been purchased by the plaintiff and had been transferred to the wife and plaintiff as joint tenants - The third was a cottage owned jointly by the husband and wife - The plaintiff claimed that she was entitled to a declaration that she was the sole beneficial owner of the residence and the rental property and that she was a beneficial owner of a 50% interest in the cottage - A Master summarily dismissed the claim on the basis that a resulting trust could not overcome the indefeasibility provision of s. 59(1) of the Real Property Act - A Queen's Bench judge allowed the plaintiff's appeal - The judge held that the title created by s. 59 was not iron clad - Section 59 created a statutory presumption as to indefeasibility of title, placing bona fide purchasers for value in a very strong position regarding equitable claims such as a resulting trust - Here, there was credible evidence on which the plaintiff might be able to rebut the statutory presumption of indefeasibility - The presumption of a resulting trust arose because the transfers were made gratuitously to an adult child - The husband had not established a prima facie defence to the resulting trust claim - Summary judgment was not appropriate - The Manitoba Court of Appeal dismissed the husband's appeal - The court stated that it was "satisfied that there are triable issues as to the proper interpretation of section 59, given the approaches in other provinces and the case law in Manitoba, and also as to the facts surrounding the alleged resulting trusts. As the law is unsettled and there are material credibility issues regarding the parties, ... this is not an appropriate case to be decided by summary judgment. A trial of these issues is required. In reaching our decision, we are neither endorsing nor disagreeing with the interpretation of section 59 given by the motion judge. Whether that section is an absolute bar, a rebuttable presumption or something else is a question we think is best left for the trial judge to decide, with the benefit of a full record." - See paragraphs 3 and 4.

Trusts - Topic 1901

Resulting trusts - General principles - General (incl. when available) - [See Real Property - Topic 8024 ].

Trusts - Topic 2044

Resulting trusts - Voluntary property transfers - Presumption of resulting trust - [See Real Property - Topic 8024 ].

Statutes Noticed:

Real Property Act, R.S.M. 1988, c. R-30; C.C.S.M., c. R-30, sect. 59(1) [para. 1 et seq.].

Counsel:

C.B. Paul, for the appellant;

W.S. Gange and K.B. Bomback, for the respondent.

This appeal was heard by Chartier, C.J.M., Beard and Mainella, JJ.A., of the Manitoba Court of Appeal, on February 10, 2016. The following decision was delivered per curiam on the same date.