Janz et al. v. Janz, 2016 MBCA 39
| Judge | Beard, Burnett and leMaistre, JJ.A. |
| Court | Court of Appeal (Manitoba) |
| Case Date | November 02, 2015 |
| Jurisdiction | Manitoba |
| Citations | 2016 MBCA 39;(2016), 330 Man.R.(2d) 1 (CA) |
Janz v. Janz (2016), 330 Man.R.(2d) 1 (CA);
675 W.A.C. 1
MLB headnote and full text
Temp. Cite: [2016] Man.R.(2d) TBEd. AP.013
Marie Janz and Marcia Ann Zabolotney (applicants/respondents) v. Dennis Malcolm Janz and Robert Murray Janz, as Executors of the Estate of Douglas Ovas Janz (respondents/appellants)
(AI 14-30-08312; 2016 MBCA 39)
Indexed As: Janz et al. v. Janz
Manitoba Court of Appeal
Beard, Burnett and leMaistre, JJ.A.
April 18, 2016.
Summary:
Doug Janz died in 2007. The applicants were Doug's daughters, Marie and Marcia. The respondents were Doug's sons, Dennis and Murray. The respondents were the executors of Doug's estate. The applicants brought a motion asking that a trial be directed on four issues. The motion judge granted an order under rule 38.09(b) of the Court of Queen's Bench Rules granting the applicants' motion and directing the trial of the four issues. The respondents appealed.
The Manitoba Court of Appeal allowed the appeal, set aside the order of the motion judge and sent the matter back to the Court of Queen's Bench for a rehearing before a different judge.
Practice - Topic 3082
Applications and motions - Applications - Disposition - Application to proceed as action - Doug Janz died in 2007 - The applicants were Doug's daughters, Marie and Marcia - The respondents were Doug's sons, Dennis and Murray - The respondents were the executors of Doug's estate - The applicants brought a motion asking that a trial be directed on four issues - The motion judge granted an order under rule 38.09(b) of the Court of Queen's Bench Rules granting the applicants' motion and directing the trial of the four issues - The respondents appealed - The Manitoba Court of Appeal allowed the appeal and set aside the order of the motion judge - The motion judge erred in fact in his credibility findings related to the respondents 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 - Given the significant number of issues that remained outstanding and did not form part of the motion or the appeal, the court returned the matter to the Court of Queen's Bench for a rehearing before a different judge.
Practice - Topic 5209
Trials - General - Trial of issues directed by court - [See Practice - Topic 3082 ].
Practice - Topic 8820
Appeals - General principles - Duty of appellate court re findings of credibility by trial judge - [See Practice - Topic 3082 ].
Practice - Topic 9256
Appeals - Judgments by appeal court - Remittal to lower court - When appropriate - [See Practice - Topic 3082 ].
Counsel:
L.W. Donald and R.P. Majewski, for the appellants;
E.G. Zazelenchuk, for the respondents.
This appeal was heard on November 2, 2015, before Beard, Burnett and leMaistre, JJ.A., of the Manitoba Court of Appeal. The following judgment of the Court of Appeal was delivered by Beard, J.A., on April 18, 2016.
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