Royal Bank of Canada v. Wirth, (1998) 133 Man.R.(2d) 246 (QB)

• Judge: Schulman, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: November 02, 1998
• Jurisdiction: Manitoba
• Citations: (1998), 133 Man.R.(2d) 246 (QB)

Royal Bk. v. Wirth (1998), 133 Man.R.(2d) 246 (QB)

MLB headnote and full text

Temp. Cite: [1998] Man.R.(2d) TBEd. NO.032

Royal Bank of Canada (applicant) v. Gladys Pauline Wirth (respondent)

(CI 98-01-09819)

Indexed As: Royal Bank of Canada v. Wirth

Manitoba Court of Queen's Bench

Winnipeg Centre

Schulman, J.

November 2, 1998.

Summary:

Wirth's husband negotiated a business loan with the Royal Bank. The bank required that Wirth sign a guarantee and provide a collat­eral mortgage against the family home, which was registered in her name. The bank arranged for Wirth to obtain independent legal advice from Voechting. Wirth attended at Voechting's office where she signed the mortgage, a guarantee and a certificate acknowledging that she had received inde­pendent advice. Wirth's husband defaulted on payment. The bank sought an order for possession. Wirth challenged the validity of the mortgage, complaining that she did not receive independent legal advice as she received no advice from Voechting.

The Manitoba Court of Queen's Bench granted the bank an order for possession. The bank fulfilled its duty to Wirth with respect to independent legal advice and there was insufficient information to support a finding that there was a fiduciary relation­ship between the bank and Wirth.

Banks and Banking - Topic 708

Duties of banks - Duty respecting indepen­dent legal advice - Wirth's husband negoti­ated a business loan with the Royal Bank -The bank required that Wirth sign a guar­antee and provide a collateral mortgage against the family home, which was regis­tered in her name - The bank arranged for Wirth to obtain independent legal advice from Voechting - Wirth attended at Voech­ting's office where she signed the mort­gage, a guarantee and a certificate acknow­ledging that she had received independent advice - Wirth's husband defaulted on payment - The bank sought an order for possession - Wirth challenged the validity of the mortgage, complaining that she did not receive independent legal advice as she received no advice from Voechting - The Manitoba Court of Queen's Bench held that the bank fulfilled its duty to Wirth with respect to independent legal advice - Further a fiduciary relationship between the bank and Wirth was not established where Wirth did not prove there was more than a creditor/debtor relationship.

Banks and Banking - Topic 745

Duties of banks - Fiduciary relationships - Conditions precedent - [See Banks and Banking - Topic 708 ].

Equity - Topic 3607

Fiduciary or confidential relationships - Relationships which are not fiduciary - [See Banks and Banking - Topic 708 ].

Cases Noticed:

Lloyd's Bank Ltd. v. Bundy, [1975] Q.B. 326, refd to. [para. 8].

Vita Health Co. (1985) Ltd. v. Toronto-Dominion Bank (1994), 95 Man.R.(2d) 255; 70 W.A.C. 255 (C.A.), refd to. [para. 8].

Hong Kong Bank of Canada v. Phillips (1997), 119 Man.R.(2d) 243 (Q.B.), refd to. [para. 8].

Royal Bank of Canada v. Omoerah (1995), 102 Man.R.(2d) 319; 93 W.A.C. 319 (C.A.), refd to. [para. 10].

Authors and Works Noticed:

Bullen, Leake and Jacob, Precedents of Pleadings (13th Ed.), pp. 928-933 [para. 6].

Counsel:

David M. Skwark, for the applicant;

Dave Hill, for the respondent.

This application was heard before Schul­man, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following decision on November 2, 1998.