Michaud v. Bank of Montreal, (1994) 154 N.B.R.(2d) 134 (CA)

• Judge: Rice, Ayles and Ryan, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: October 27, 1994
• Jurisdiction: New Brunswick
• Citations: (1994), 154 N.B.R.(2d) 134 (CA)

Michaud v. Bk. of Mtrl. (1994), 154 N.B.R.(2d) 134 (CA);

    154 R.N.-B.(2e) 134; 395 A.P.R. 134

MLB headnote and full text

[French language version follows English language version]

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

....................

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

(26/94/CA)

Indexed As: Michaud v. Bank of Montreal

New Brunswick Court of Appeal

Rice, Ayles and Ryan, JJ.A.

November 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, in a decision reported 143 N.B.R.(2d) 161; 366 A.P.R. 161, dis­missed the action. The plaintiff appealed.

The New Brunswick Court of Appeal dismissed the appeal.

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 - The New Brunswick Court of Appeal affirmed the decision.

Restitution - Topic 903

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

Counsel:

Robert B. Jackson, for the appellant;

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

This appeal was heard on October 27, 1994, before Rice, Ayles and Ryan, JJ.A., of the New Brunswick Court of Appeal. The following decision was delivered by the court on November 4, 1994.