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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...85. As regards r 38.09, see this Court’s decisions in Garwood v Garwood Estate, 2007 MBCA 160 at paras 37-39; and Janz et al v Janz et al, 2016 MBCA 39 at paras [22] While those decisions arise in the context of civil, rather than family, proceedings, the issue is the same: whether the affi......
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Brotherston v Christiansen et al, 2018 MBCA 70
...2005 MBCA 17 at para 4; Lenko v The Government of Manitoba et al, 2016 MBCA 52; 2016 MBCA 84; 2016 MBCA 85; and Janz et al v Janz et al, 2016 MBCA 39 at paras 45-46, [34] I now turn to each of the defendant’s arguments with respect to the credibility and sufficiency issues he raises. [35] F......
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Heritage Electric Ltd et al v Sterling O & G International Corporation et al, 2017 MBCA 85
...2005 MBCA 17 at para 4; Lenko v The Government of Manitoba et al, 2016 MBCA 52; 2016 MBCA 84; 2016 MBCA 85; and Janz et al v Janz et al, 2016 MBCA 39 at paras 45-46, 49.) [17] As she was required to do, the motion judge took a hard look at the evidence of both parties in determining whether......
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Eckert v Cork-Eckert, 2018 MBCA 105
...is such that the dispute cannot be fairly resolved with confidence without the formalities of a trial (see Janz et al v Janz et al, 2016 MBCA 39 at para 49; Heritage Electric Ltd et al v Sterling O & G International Corporation et al, 2017 MBCA 85 at para 16; and Virden Mainline Motor P......
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Sawatzky v Sawatzky, 2018 MBCA 102
...85. As regards r 38.09, see this Court’s decisions in Garwood v Garwood Estate, 2007 MBCA 160 at paras 37-39; and Janz et al v Janz et al, 2016 MBCA 39 at paras [22] While those decisions arise in the context of civil, rather than family, proceedings, the issue is the same: whether the affi......
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Brotherston v Christiansen et al, 2018 MBCA 70
...2005 MBCA 17 at para 4; Lenko v The Government of Manitoba et al, 2016 MBCA 52; 2016 MBCA 84; 2016 MBCA 85; and Janz et al v Janz et al, 2016 MBCA 39 at paras 45-46, [34] I now turn to each of the defendant’s arguments with respect to the credibility and sufficiency issues he raises. [35] F......
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Heritage Electric Ltd et al v Sterling O & G International Corporation et al, 2017 MBCA 85
...2005 MBCA 17 at para 4; Lenko v The Government of Manitoba et al, 2016 MBCA 52; 2016 MBCA 84; 2016 MBCA 85; and Janz et al v Janz et al, 2016 MBCA 39 at paras 45-46, 49.) [17] As she was required to do, the motion judge took a hard look at the evidence of both parties in determining whether......
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Eckert v Cork-Eckert, 2018 MBCA 105
...is such that the dispute cannot be fairly resolved with confidence without the formalities of a trial (see Janz et al v Janz et al, 2016 MBCA 39 at para 49; Heritage Electric Ltd et al v Sterling O & G International Corporation et al, 2017 MBCA 85 at para 16; and Virden Mainline Motor P......