MILAVSKY v 353396 ALBERTA INC, 2013 ABCA 253


5.33: Confidentiality and use of information

Case Summary

In 2009, the Respondent, Ms. Milavsky, commenced divorce proceedings against her husband, who died in 2012. Ms. Milavsky claimed she was entitled to a share of the assets that were conveyed by her husband to certain Trusts, or in the alternative, to compensation for the services he provided to the Trusts. Ms. Milavsky also sued the Trustees, claiming unjust enrichment, and sought to set aside conveyances to the Trusts. In October 2012, the Appellants applied to the Case Management Judge to sever the issue relating to the liability of the Trusts from the issues of unjust enrichment and the Respondent’s entitlement to damages. The Appellants argued that the factual underpinnings of the entitlement issue were distinct from the remedies that may be engaged. As such, the issues were severable and distinct. The Chambers Judge characterized the issue as whether Mr. Milavsky’s transfers to the Trusts defeated the Respondent’s Claim for an equitable division of matrimonial property and spousal support. Having considered the broader context of the litigation, the sheer volume of evidence, Rule 5.33, and other Court decisions on the issue of severance, the Chambers Judge dismissed the Application for severance.

The Court of Appeal held that Decisions “ordering or refusing severance of issues involve an element of discretion and should not be interfered with on Appeal unless they reflect an error of law or principle or are unreasonable”, particularly when such Decisions are rendered by a Case Management Judge who has detailed knowledge of the litigation. The Court held that the Respondent was required to establish, inter alia, whether she had any entitlement to the funds used to settle the Trusts. There was no clear demarcation between entitlement and remedy. As such, the Court dismissed the Appeal.

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