Zalizniak v. Zalizniak et al., 2007 MBCA 118

• Judge: Steel, Hamilton and Chartier, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: April 11, 2007
• Jurisdiction: Manitoba
• Citations: 2007 MBCA 118;(2007), 220 Man.R.(2d) 194 (CA)

Zalizniak v. Zalizniak (2007), 220 Man.R.(2d) 194 (CA);

      407 W.A.C. 194

MLB headnote and full text

Temp. Cite: [2007] Man.R.(2d) TBEd. OC.008

Cheryl Lynn Zalizniak (petitioner/respondent) v. Roger Peter James Zalizniak (respondent/respondent) and Merlin Scott (purchaser and party pursuant to Q.B.R. 55.06(11)/appellant)

(AF 06-30-06308; AF 07-30-06594; 2007 MBCA 118)

Indexed As: Zalizniak v. Zalizniak et al.

Manitoba Court of Appeal

Steel, Hamilton and Chartier, JJ.A.

October 5, 2007.

Summary:

In family law proceedings, a Master ordered jointly owned farm property sold using a sealed tender process. It was known that the wife was profoundly attached to the property. The Master stipulated that the conditions of sale and the public advertisements would contain a privilege clause, stating that the highest or any bid would not necessarily be accepted. Either party as well as members of the public could bid. A tendering process ensued. The highest bid ($235,000) was submitted by Merlin and Donna Scott and this was accepted by the Master. The wife, who had bid $230,000, moved for an order setting aside the sale, arguing that fairness should dictate that she have the property because it was her home and that the privilege clause should be interpreted so as to allow that result.

The Manitoba Court of Queen's Bench allowed the wife's application and ordered that the sale be set aside and that title be vested in the wife, subject to an equalization payment. The Scotts appealed.

The Manitoba Court of Appeal, in a decision reported at 177 Man.R.(2d) 173; 304 W.A.C. 173, allowed the appeal. The court stated that there was neither reason nor precedent to justify the motions court judge's interpretation of the privilege clause. In March 2004, the purchase and sale transaction had not closed. The wife had continued to live in the house. The applicant alleged that he suffered damages as a result of the occupancy of the property by the wife, late possession and loss of earnings and he sought adjustments to the purchase price. The parties appeared before Allen, J., to address several motions, including one by Merlin Scott seeking directions on how to resolve the issues related to the closing. Allen, J., referred the matter to a Master. The Master instructed counsel to draft pleadings. In a decision reported at [2005] Man.R.(2d) Uned. 59, the Master issued a report in which he, inter alia, awarded Scott some of the damages that he sought. Scott opposed confirmation of the report. Sinclair, J., confirmed the report. Scott filed a notice of appeal of the confirmation order on January 20, 2006. Scott filed notices of motion to extend the time for filing his factum and to amend the notice of appeal.

The Manitoba Court of Appeal, per Hamilton, J.A., in a decision reported at 212 Man.R.(2d) 114; 389 W.A.C. 114, allowed the motions on certain conditions. Scott had demonstrated that there was an arguable issue concerning the Master's jurisdiction in the proceedings. A lack of jurisdiction rendered a proceeding a nullity. A nullity could not be waived by lapse of time, delay, acquiescence, or the taking of subsequent proceedings. Delay in applying for a declaration of nullity was not a bar to relief. The possibility of such a nullity was an exceptional circumstance that, by itself, compelled the court to allow Scott's motions to amend his notice of appeal and to extend the time for him to file his factum.

The Manitoba Court of Appeal held that the proceeding referred to the Master was a trial of an action. In light of the prohibition in s. 92 of the Queen's Bench Act against the conferral on Masters of the trial of actions, the proceeding was beyond the Master's jurisdiction. Thus, the Master's decision was a nullity and could not be confirmed.

Courts - Topic 1041

Masters - Jurisdiction - General - At issue on an appeal was whether a Master had jurisdiction, pursuant to a reference from a Court of Queen's Bench judge, to determine issues of liability and damages arising from a delayed closing of a real property transaction - The Manitoba Court of Appeal held that the proceeding referred to the Master was a trial of an action - In light of the prohibition in s. 92 of the Queen's Bench Act against the conferral on Masters of the trial of actions, the proceeding was beyond the Master's jurisdiction - Thus, the Master's decision was a nullity and could not be confirmed.

Courts - Topic 1041

Masters - Jurisdiction - General - The Manitoba Court of Appeal made two recommendations that it hoped would be of assistance to judges, masters and lawyers when addressing whether a matter should be the subject of a reference - The court stated that "First, the question of the Master's jurisdiction should always be addressed before the reference is ordered. Typically, this will be an obvious and straightforward consideration, which should start with identifying the specific subsection of the Queen's Bench Rules under which the reference is made. So identifying the subsection will require the judge to address the issue of jurisdiction. Second, a master should carefully consider whether to decline proceeding if there is concern about a lack of jurisdiction. Obviously litigants will be better served if the matter is referred back to the judge for further consideration rather than putting at risk the proceeding. In Maitre, this court wrote favourably about the master declining jurisdiction and referring the matter back to the judge. Q.B. Rule 54.05(1) also contemplates this" - See paragraphs 65 to 67.

Courts - Topic 1042

Masters - Jurisdiction - Referrable matters - [See both Courts - Topic 1041 and Courts - Topic 2221 ].

Courts - Topic 2221

Jurisdiction - Consent - General - At issue on an appeal was whether a Master had jurisdiction, pursuant to a reference from a Court of Queen's Bench judge, to determine issues of liability and damages arising from a delayed closing of a real property transaction - One of the respondents argued that Queen's Bench Rule 54.02(1)(a) contemplated a reference where "all affected parties consent" - The Manitoba Court of Appeal stated that "While that is so, such wording cannot override the fundamental principle that consent of the parties cannot clothe a court or a master with jurisdiction that does not exist." - See paragraph 60.

Practice - Topic 5421

Judgments and orders - Validity - General - [See first Courts - Topic 1041 ].

Words and Phrases

Trial of an action - The Manitoba Court of Appeal discussed the meaning of this phrase as found in s. 92(1) of the Queen's Bench Act, S.M. 1988-89, c. 4; C.C.S.M., c. C-280 - See paragraphs 25 to 59.

Cases Noticed:

Heinrichs Estate v. Baker, Zivot & Co. et al. (1996), 108 Man.R.(2d) 47 (Q.B.), refd to. [para. 24].

Evans v. Evans, [2002] Man.R.(2d) Uned. 74; 2002 MBCA 44, refd to. [para. 24].

Hilhorst v. Hilhorst (2002), 169 Man.R.(2d) 129; 2002 MBQB 280 (Fam. Div.), refd to. [para. 24].

Maitre v. Chisvin and Chisvin (1958), 15 D.L.R.(2d) 120, refd to. [para. 28].

Lobel v. Williams (1915), 25 Man.R. 161 (C.A.), dist. [para. 30].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 33].

Reference Re Young Offenders Act and Youth Court Judges, [1991] 1 S.C.R. 252; 121 N.R. 81; 89 Nfld. & P.E.I.R. 91; 278 A.P.R. 91; 62 C.C.C.(3d) 385, refd to. [para. 34].

Residential Tenancies Act of Ontario, Re, [1981] 1 S.C.R. 714; 37 N.R. 158, refd to. [para. 35].

Quebec (Attorney General) v. Grondin et al., [1983] 2 S.C.R. 364; 50 N.R. 50, refd to. [para. 36].

Sobeys Stores Ltd. v. Yeomans and Labour Standards Tribunal (N.S.) et al., [1989] 1 S.C.R. 238; 92 N.R. 179; 90 N.S.R.(2d) 271; 230 A.P.R. 271; 57 D.L.R.(4th) 1, refd to. [para. 36].

MacMillan Bloedel Ltd. v. Simpson et al., [1995] 4 S.C.R. 725; 191 N.R. 260; 68 B.C.A.C. 161; 112 W.A.C. 161, refd to. [para. 36].

Reference Re Residential Tenancies Act (N.S.), [1996] 1 S.C.R. 186; 193 N.R. 1; 149 N.S.R.(2d) 1; 432 A.P.R. 1, refd to. [para. 36].

Baril v. Obelnicki (2007), 214 Man.R.(2d) 7; 395 W.A.C. 7 (C.A.), refd to. [para. 37].

Dunlop v. Haney, [1899] B.C.J. No. 62 (S.C.), refd to. [para. 45].

Leong v. Sin (1981), 29 B.C.L.R. 387 (S.C.), refd to. [para. 45].

McGrath v. St. Phillip's (1985), 51 Nfld. & P.E.I.R. 276; 150 A.P.R. 276 (Nfld. C.A.), dist. [para. 47].

Knight v. Coales (1887), 19 Q.B.D. 296 (C.A.), refd to. [para. 50].

Pye v. Pye (2006), 229 B.C.A.C. 102; 379 W.A.C. 102; 2006 BCCA 352, refd to. [para. 60].

Schaff v. Schaff (1997), 93 B.C.A.C. 248; 151 W.A.C. 248; 38 B.C.L.R.(3d) 89 (C.A.), refd to. [para. 60].

Rothgiesser v. Rothgiesser (2000), 128 O.A.C. 302; 46 O.R.(3d) 577 (C.A.), refd to. [para. 60].

Manitoba Windmill Co. v. Vigier (1909), 18 Man.R. 427 (C.A.), refd to. [para. 60].

Brent v. Brent (2004), 183 O.A.C. 187; 69 O.R.(3d) 737 (C.A.), refd to. [para. 60].

Ontario (Attorney General) v. Victoria Medical Building Ltd., [1960] S.C.R. 32, refd to. [para. 61].

Statutes Noticed:

Court of Queen's Bench Act, S.M. 1988-89, c. 4; C.C.S.M., c. C-280, sect. 92(1) [para. 9].

Rules of Court (Man.), Queen's Bench Rules, rule 54.02(l), rule 54.02(2) [para. 11].

Authors and Works Noticed:

Sullivan, Ruth, Sullivan and Driedger on the Construction of Statutes (4th Ed. 2002), p. 272 [para. 59].

Counsel:

C.A. Everard, for the appellant;

J.C. Robinson, for the respondent, C.L. Zalizniak;

R.P.J. Zalizniak, on his own behalf.

These appeals were heard on April 11, 2007, by Steel, Hamilton and Chartier, JJ.A., of the Manitoba Court of Appeal. Hamilton, J.A., delivered the following reasons for judgment for the court on October 5, 2007.