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Klimashewski v. Klimashewski Estate, [1987] 2 S.C.R. 754


Vladimir Petrowich Klimashewski                                                    Appellant




Peter Klimashewski, as Administrator of the Estate of Anastasia Klimashewski, late of the City of Winnipeg, in the Province of Manitoba, and Peter Klimashewski                        Respondent


indexed as: klimashewski v. klimashewski estate


File No.: 19639.


1987: December 2; 1987: December 17.


Present: Estey, McIntyre, Wilson, La Forest and L'Heureux‑Dubé JJ.


on appeal from the court of appeal for manitoba


                   Courts ‑‑ Appeal ‑‑ Evidence ‑‑ Appeal Court erred in substituting its view of weight of the evidence for that of trial judge.


                   Held: The appeal should be allowed.


                   APPEAL from a judgment of the Manitoba Court of Appeal (1985), 37 Man. R. (2d) 188, allowing an appeal from a judgment of Smith J. Appeal allowed.


                   Gavin Wood and Andrew Bunn, for the appellant.


                   Anthony H. Dalmyn, for the respondent.


                   The following is the judgment delivered by


1.                       The Court‑‑The Court is unanimously of the view that the Court of Appeal erred in substituting its view of the weight of the evidence in favour of an outright gift of a one‑half interest in the property in question by the mother to the son, for that of the trial judge who had the benefit of seeing the witnesses, including the parties, while giving their evidence. The appeal is accordingly allowed and the judgment of the trial judge is restored with costs to the appellant throughout.


                   Appeal allowed with costs.


                   Solicitors for the appellant: Taylor Brazzell McCaffrey, Winnipeg.


                   Solicitors for the respondent: Walsh, Micay & Company, Winnipeg.



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