Pitblado LLP v. Zenyk Estate, 2015 MBCA 97

• Judge: Monnin, Cameron and Pfuetzner, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: October 06, 2015
• Jurisdiction: Manitoba
• Citations: 2015 MBCA 97;(2015), 323 Man.R.(2d) 137 (CA)

Pitblado LLP v. Zenyk Estate (2015), 323 Man.R.(2d) 137 (CA);

      657 W.A.C. 137

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. OC.013

Pitblado LLP (plaintiff/respondent) v. Janice Marie Kowalyk and Geraldine Joan Garand as Executrices of the Estate of Marjorie Joan Zenyk and The Estate of Marjorie Joan Zenyk (defendants/respondents) and Daryl Frank Zenyk (applicant/appellant)

(AI 14-30-08310; 2015 MBCA 97)

Indexed As: Pitblado LLP v. Zenyk Estate

Manitoba Court of Appeal

Monnin, Cameron and Pfuetzner, JJ.A.

October 6, 2015.

Summary:

Pitblado LLP brought an action against the executors of an estate over legal fees. Zenyk was a residual beneficiary of the estate. He sought to be added as a party to the action. The motion was denied. Zenyk appealed.

The Manitoba Court of Appeal dismissed the appeal.

Practice - Topic 603

Parties - Adding or substituting parties - General principles - Bars - [See Practice - Topic 630 ].

Practice - Topic 604

Parties - Adding or substituting parties - General principles - Considerations - [See Practice - Topic 630 ].

Practice - Topic 630

Parties - Adding or substituting parties - Necessary parties - General - Pitblado LLP brought an action against the executors of an estate over legal fees - Zenyk was a residual beneficiary of the estate - He sought to be added as a party to the action - In denying the motion, the motion judge found that there was nothing sufficiently unique and necessary that justified adding Zenyk as a party - Zenyk, like the other residual beneficiaries, would not add anything to the underlying dispute - Zenyk could not make a useful contribution without causing injustice to the immediate parties - Zenyk appealed - The Manitoba Court of Appeal dismissed the appeal - A discretionary decision such as this called for review on a standard of great deference - Nothing showed that the motion judge had misdirected himself or that the decision was so clearly wrong that it amounted to an injustice - The motion judge had properly interpreted "sufficiently unique and necessary" in Queen's Bench Rule 13.01(1).

Practice - Topic 8804

Appeals - General principles - Duty of appellate court regarding discretionary orders - [See Practice - Topic 630 ].

Cases Noticed:

Towers Ltd. v. Quinton's Cleaners Ltd. et al. (2009), 245 Man.R.(2d) 70; 466 W.A.C. 70; 2009 MBCA 81, refd to. [para. 2].

Cropo Estate, Re (2008), 230 Man.R.(2d) 236; 2008 MBQB 194, refd to. [para. 4].

Buccilli et al. v. Pillitteri et al. (2014), 318 O.A.C. 365; 2014 ONCA 365, refd to. [para. 4].

Counsel:

G.R. Clay, for the appellant;

T.W. Turner, for the respondent, Pitblado LLP;

T.A. McMahon, on a watching brief for the respondents, J.M. Kowalyk et al.

This appeal was heard on October 6, 2015, by Monnin, Cameron and Pfuetzner, JJ.A., of the Manitoba Court of Appeal. On the same date, Cameron, J.A., pronounced the following decision for the court.