Mallet v. Caisse populaire de Shippagan ltée et al., (2012) 388 N.B.R.(2d) 193 (TD)

• Judge: LaVigne, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: April 05, 2012
• Jurisdiction: New Brunswick
• Citations: (2012), 388 N.B.R.(2d) 193 (TD);2012 NBQB 194

Mallet v. Caisse Pop. (2012), 388 N.B.R.(2d) 193 (TD);

    388 R.N.-B.(2e) 193; 1006 A.P.R. 193

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Temp. Cite: [2012] N.B.R.(2d) TBEd. JN.027

Renvoi temp.: [2012] N.B.R.(2d) TBEd. JN.027

Caisse populaire de Shippagan ltée, a body corporate pursuant to the Credit Unions Act, S.N.B. 1992, c. C-32.2 (plaintiff) v. Bélonie Mallet (defendant)

(B/C/15/09)

Pierre Ulysse Mallet (plaintiff) v. Caisse populaire de Shippagan ltée, un corps constitué selon la Loi sur les caisses populaires, L.N.-B. 1992, c. C-32.2, Brunswick Credit Union Federation Stabilization Board Limited, un corps constitué selon la Loi sur les caisses populaires et Darrell Kuhn, agissant à titre de superviseur (defendants)

(B/C/339/04)

Donald Hachey (plaintiff) v. Caisse populaire de Shippagan Limitée, a body corporate pursuant to the Credit Unions Act, S.N.B. 1992 c. C-32-3 (defendant)

(B/C/279/05)

Johnny Jones (plaintiff) v. Caisse populaire de Shippagan Limitée, a body corporate pursuant to the Credit Unions Act, S.N.B. 1992 c. C-32-3 (defendant)

(B/C/280/05; 2012 NBQB 194; 2012 NBBR 194)

Indexed As: Mallet v. Caisse populaire de Shippagan ltée et al.

Répertorié: Mallet v. Caisse populaire de Shippagan ltée et al.

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Bathurst

LaVigne, J.

April 24, 2012.

Summary:

Résumé:

A credit union suffered multi-million dollar losses. The Stabilization Board retained a chartered accounting firm to conduct an inspection. Following receipt of the inspection report, the Board took control of the credit union in June 2004. Four senior management employees (B. Mallet, P.U. Mallet, Hachey and Jones) were fired. Three employees commenced separate wrongful dismissal actions. The credit union counterclaimed for damages in each action, then commenced an action for damages against the fourth member (B. Mallet). The credit union moved under rule 6.01 for an order that the four actions be consolidated or heard together. The three plaintiff employees opposed the motion.

The New Brunswick Court of Queen's Bench, Trial Division, in a judgment reported (2011), 373 N.B.R.(2d) 340; 964 A.P.R. 340, held that although consolidation was precluded where the credit union was a defendant in three actions and a plaintiff in the fourth, the four actions could still be heard together. The court ordered the actions heard together to "achieve the just, least expensive, and most expeditious process for determining these matters on their merit. B. Mallet's son applied under rule 7.03(d) to be appointed his father's litigation guardian on the ground that his 75 year old father was "mentally incompetent or incapable of managing his own affairs".

The New Brunswick Court of Queen's Bench, Trial Division, dismissed the application.

Person of Unsound Mind - Topic 1287

Legal proceedings - Representation of incompetents - Guardian ad litem - A credit union suffered multi-million dollar losses - After retaining a chartered accounting firm to conduct an inspection, the Stabilization Board took control of the credit union in June 2004 and fired four senior management employees (B. Mallet, P.U. Mallet, Hachey and Jones) - Three employees commenced separate wrongful dismissal actions - The credit union counterclaimed for damages in each action, then commenced an action for damages against the fourth member (B. Mallet) - The actions were to be heard together - B. Mallet's son applied under rule 7.03(d) to be appointed his father's litigation guardian on the ground that his 75 year father was "mentally incompetent or incapable of managing his own affairs" - Examination of B. Mallet for discovery was incomplete purportedly because he suffered from severe cerebral atrophy and his psychiatric condition impeded his ability to follow and understand the judicial process or effectively communicate with and instruct his lawyer - The New Brunswick Court of Queen's Bench, Trial Division, dismissed the application - On the evidence, including expert evidence from two psychiatrists, the son failed to establish that B. Mallet was "mentally incompetent" (as defined in the Interpretation Act and Infirm Persons Act) or that he was "incapable of managing his own affairs" (i.e., unable by reason of disability to instruct counsel or exercise judgment respecting the litigation) - B. Mallet suffered from depression and anxiety, he was not delusional, psychotic or hallucinating - He had good contact with reality - B. Mallet's unwillingness or lack of comfort in communicating with his lawyer and discussing the litigation was his choice or preference, not the result of mental incompetence or an inability to manage his own affairs.

Incapables mentaux - Cote 1287

Procédure judiciaires - Représentation des incapables - Tuteur d'instance - [Voir Persons of Unsound Mind - Topic 1287 ].

Cases Noticed:

Kirby v. Leather, [1965] 2 All E.R. 441 (C.A.), refd to. [para. 20].

Guimond et al. v. Canada (1991), 45 F.T.R. 107 (T.D.), refd to. [para. 20].

Vienneau v. Flieger, 1995 CanLII 3882 (N.B.Q.B.), refd to. [para. 23].

Bugden v. Bugden (1974), 15 N.S.R.(2d) 535; 14 A.P.R. 535 (T.D.), refd to. [para. 26].

Statutes Noticed:

Rules of Court (N.B.), rule 7.03(d) [para. 16].

Authors and Works Noticed:

Robertson, Gerald B., Mental Disability and the Law in Canada (2nd Ed. 1994), p. 354 [para. 21].

Counsel:

Avocats:

Kelly VanBuskirk and Nathalie Godbout, for the Caisse populaire de Shippagan ltée;

Patrick Hurley, Q.C., for the applicant, Éric Mallet;

Martin Siscoe, for Mr. Bélonie Mallet;

Rick Nesbitt, for the Brunswick Credit Union Federation Stabilization Board Limited and Darrell Kunh.

This application was heard on April 5, 2012, before LaVigne, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Bathurst, who delivered the following judgment orally on April 24, 2012.