Bank of Montreal v. Courtney, (2005) 239 N.S.R.(2d) 80 (CA)

• Judge: Saunders, Oland and Hamilton, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: September 26, 2005
• Jurisdiction: Nova Scotia
• Citations: (2005), 239 N.S.R.(2d) 80 (CA);2005 NSCA 153

Bk. of Mtrl. v. Courtney (2005), 239 N.S.R.(2d) 80 (CA);

    760 A.P.R. 80

MLB headnote and full text

Temp. Cite: [2005] N.S.R.(2d) TBEd. NO.059

Holly Courtney (appellant) v. Bank of Montreal (respondent)

(CA 237229; 2005 NSCA 153)

Indexed As: Bank of Montreal v. Courtney

Nova Scotia Court of Appeal

Saunders, Oland and Hamilton, JJ.A.

November 29, 2005.

Summary:

The Bank of Montreal claimed against the defendant based on several promissory notes that she and her husband had signed. The defendant resisted payment on the basis of (1) undue influence by her husband and (2) the bank's failure to advise her (i) of the risks of the transactions and (ii) to seek independent legal advice.

The Nova Scotia Supreme Court, in a decision not reported in this series of reports, allowed the action. The defendant appealed.

The Nova Scotia Court of Appeal dismissed the appeal.

Banks and Banking - Topic 708

Duties of banks - General - Duty respecting independent legal advice - The Bank of Montreal claimed against the defendant based on several promissory notes that she and her husband had signed - The defendant resisted payment on the basis of (1) undue influence by her husband and (2) the bank's failure to advise her (i) of the risks of the transactions and (ii) to seek independent legal advice - The trial judge allowed the action - The defendant appealed - The Nova Scotia Court of Appeal dismissed the appeal - The trial judge's finding that the defendant stood to benefit from the loans was supported by the evidence - The defendant was not unfamiliar with loans and financial terms - The trial judge made no palpable and overriding error in finding that the defendant fully understood the obligation that she was entering into and that she did so freely and voluntarily - The trial judge did not err by failing to consider the presumption of undue influence or by failing to find that the Bank erred in its duty of inquiry to the defendant.

Barristers and Solicitors - Topic 1555

Relationship with client - Duty to client - General - Respecting independent legal advice - [See Banks and Banking - Topic 708 ].

Barristers and Solicitors - Topic 1560.1

Relationship with client - Duty to client - General - Where possibility of undue influence or unconscionability - [See Banks and Banking - Topic 708 ].

Fraud and Misrepresentation - Topic 784

Undue influence - Presumed undue influence - General - Circumstances which raise presumption - [See Banks and Banking - Topic 708 ].

Cases Noticed:

Flynn v. Halifax (Regional Municipality) et al. (2005), 232 N.S.R.(2d) 293; 737 A.P.R. 293; 2005 NSCA 81, refd to. [para. 19].

Waxman et al. v. Waxman et al. (2004), 186 O.A.C. 201 (C.A.), refd to. [para. 19].

Goodman Estate v. Geffen, [1991] 2 S.C.R. 353; 127 N.R. 241; 125 A.R. 81; 14 W.A.C. 81, refd to. [para. 29].

Barclays Bank plc v. Coleman - see Barclays Bank plc. v. O'Brien et al.

Barclays Bank plc v. O'Brien et al., [1994] 1 A.C. 180; 160 N.R. 214; [1993] 4 All E.R. 417 (H.L.), refd to. [para. 30].

Gold v. Rosenberg, [1997] 3 S.C.R. 767; 219 N.R. 93; 104 O.A.C. 1; 152 D.L.R.(4th) 385, refd to. [para. 31].

Royal Bank of Scotland plc v. Etridge et al., [2001] 4 All E.R. 449; 280 N.R. 58; [2002] 2 A.C. 773 (H.L.), not appld. [para. 33].

Eftimovski v. Faris, [2004] O.T.C. 727 (Sup. Ct.), refd to. [para. 42].

Bank of Montreal v. Collum (2004), 201 B.C.A.C. 207; 328 W.A.C. 207 (C.A.), leave to appeal denied (2005), 334 N.R. 191 (S.C.C.), refd to. [para. 42].

Counsel:

Tim Hill, for the appellant;

William Chisholm, for the respondent.

This appeal was heard in Halifax, Nova Scotia, on September 26, 2005, by Saunders, Oland and Hamilton, JJ.A., of the Nova Scotia Court of Appeal. Oland, J.A., delivered the following decision for the court on November 29, 2005.