Bank of Montreal v. MacCallum, (1994) 151 N.B.R.(2d) 138 (TD)

• Judge: Riordon, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: January 06, 1994
• Jurisdiction: New Brunswick
• Citations: (1994), 151 N.B.R.(2d) 138 (TD)

Bk. of Mtrl. v. MacCallum (1994), 151 N.B.R.(2d) 138 (TD);

    151 R.N.-B.(2e) 138; 387 A.P.R. 138

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Bank of Montreal (applicant) v. Donald MacCallum and Heather MacCallum (respondents)

(N/C/173/93)

Indexed As: Bank of Montreal v. MacCallum

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Newcastle

Riordon, J.

August 12, 1994.

Summary:

The bank sued a husband and wife on a promissory note. The husband was noted in default. The wife defended the claim and cross-claimed against the husband. The husband was noted in default on the cross-claim.

The New Brunswick Court of Queen's Bench, Trial Division, allowed the claim against the wife.

Banks and Banking - Topic 741

Duties of banks - Fiduciary relationships - General - The husband signed a promis­sory note to secure a truck purchase - He took it home for his wife to sign - The wife telephoned the bank manager and told him she was reluctant to sign because they were separating - The manager explained that monies would be advanced only if both signed - The wife signed, but now claimed her husband pressured her to sign and the bank breached its fiduciary duty to her by failing to advise her to obtain inde­pendent legal advice - The New Bruns­wick Court of Queen's Bench, Trial Divi­sion, held that there was no fiduciary rela­tionship between the bank and the wife - The bank manager knew of her reluctance to sign, but had no reason to suspect the husband pressured her into signing and no duty to advise her to obtain legal advice.

Banks and Banking - Topic 5146

Loans - Duties of bank - To co-signors - [See Banks and Banking - Topic 741 ].

Equity - Topic 3606

Fiduciary or confidential relationships - Fiduciary relationships - What constitute -[See Banks and Banking - Topic 741 ].

Cases Noticed:

Bank of Nova Scotia v. MacLellan (1980), 30 N.B.R.(2d) 596; 70 A.P.R. 596; 31 N.B.R.(2d) 141; 75 A.P.R. 141 (C.A.), refd to. [para. 16].

Michaud v. Bank of Montreal (1994), 143 N.B.R.(2d) 161; 366 A.P.R. 161 (T.D.), refd to. [para. 17].

Royal Bank v. Hinds (1979), 88 D.L.R.(3d) 428 (Ont. H.C.), dist. [para. 18].

E. & R. Distributors v. Atlas Drywall Ltd. (1980), 118 D.L.R.(3d) 339 (B.C.C.A.), dist. [para. 18].

Counsel:

Nicolas S. Rodger, for the applicant;

Rhonda K. Allison, for the respondent Heather MacCallum.

This action was heard on January 6, 1994, before Riordon, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Newcastle, who delivered the following judgment on August 12, 1994.