Michaud v. Bank of Montreal, (1994) 143 N.B.R.(2d) 161 (TD)

• Judge: Russell, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: January 04, 1994
• Jurisdiction: New Brunswick
• Citations: (1994), 143 N.B.R.(2d) 161 (TD)

Michaud v. Bk. of Mtrl. (1994), 143 N.B.R.(2d) 161 (TD);

    143 R.N.-B.(2e) 161; 366 A.P.R. 161

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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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Janet Eileen Michaud (plaintiff) v. The Bank of Montreal, a body corporate (defendant)

(F/C/231/93)

Indexed As: Michaud v. Bank of Montreal

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Fredericton

Russell, J.

January 4, 1994.

Summary:

The plaintiff wife sought to set aside collateral mortgages against the marital home which was registered in her name in favour of a bank. She alleged that she exe­cuted the mortgages under undue influence and threats by her husband which would have been avoided if the bank had provided her with independent legal advice.

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

Banks and Banking - Topic 5141

Loans - Duties of bank - General - [See Equity - Topic 1122].

Contracts - Topic 1543

Formation of contract - Duty to disclose - Notice of special, unusual or onerous provisions - [See Equity - Topic 1122].

Equity - Topic 1122

Equitable relief - Contracts - Un­conscionable bargain defined - A wife sought to set aside as unconscionable collateral mortgages on the marital home (registered in her name) given to a bank as security for her husband's business loans - She alleged undue influence by her hus­band and breach of the bank's fiduciary duty to ensure that she obtained indepen­dent legal advice before executing the documents - The wife, a university gradu­ate and a civil servant, had substantial experience executing similar mortgages and guarantees which had been explained to her on previous occasions - The New Brunswick Court of Queen's Bench, Trial Division, declined to set aside the mort­gages.

Restitution - Topic 903

Benefit acquired from plaintiff - Relief from unconscionable bargain - Grounds for relief - Lack of independent advice - [See Equity - Topic 1122 ].

Cases Noticed:

Bertolo v. Bank of Montreal (1986), 18 O.A.C. 262; 33 D.L.R.(4th) 610 (C.A.), refd to. [para. 30].

Authors and Works Noticed:

Turner and Sutton, Actionable Non-Dis­closure (2nd Ed. 1990), pp. 569 [para. 29]; 570 [para. 26]; 665 [para. 27]; 666 [para. 30].

Counsel:

Robert B. Jackson, for the plaintiff;

Robert L. Kenny, Q.C., for the defendant.

This case was heard on November 23 and 24, 1993, before Russell, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Fredericton, who delivered the following judgment on January 4, 1994.