2010 NBCA 92, 2010 NBCA 92

COURT OF APPEAL OF NEW BRUNSWICK 25-10-CA 051766 N.B. LTD., a body corporate (Plaintiff) APPELLANT 051766 N.B. LTD., personne morale (Demanderesse) APPELANTE - and - - et - ELIZABETH WILBUR, STEPHEN WILBUR, HAROLD GREW and WILBUR GREW (Defendants) RESPONDENTS ELIZABETH WILBUR, STEPHEN WILBUR, HAROLD GREW et WILBUR GREW (Défendeurs) INTIMÉS 051766 N.B. Ltd. v. Wilbur and Grew, 2010 NBCA 92 051766 N.B. Ltd. c.

Wilbur et Grew, 2010 NBCA 92 CORAM: The Honourable Justice Turnbull The Honourable Justice Bell The Honourable Justice Green CORAM : L’honorable juge Turnbull L’honorable juge Bell L’honorable juge Green Appeal from a decision of the Court of Queen’s Bench: January 29, 2010 Appel d’une décision de la Cour du Banc de la Reine : Le 29 janvier 2010 History of Case: Historique de la cause : Decision under appeal: 2010 NBQB 34 Décision frappée d’appel : 2010 NBBR 34 Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : S.O.

Appeal heard and judgment rendered: November 16, 2010 Appel entendu et jugement rendu : Le 16 novembre 2010 Reasons delivered: December 16, 2010 Motifs déposés : Le 16 décembre 2010

Counsel at hearing: For the appellant: James L. Mockler For the respondents: Ronald J. Ashfield, Q.C. Avocats à l'audience : Pour l’appelante : James L. Mockler Pour les intimés : Ronald J. Ashfield, c.r. THE COURT The appeal is dismissed with one set of costs to the respondents in the amount of $12,142.00, being 40% of the costs awarded at trial. LA COUR Rejette l’appel et accorde aux intimés une seule masse de dépens qui est fixée à 12 142 $, soit 40 % des dépens accordés au procès. The following is the judgment delivered by THE COURT [ 1 ] The appellant, 051766 N.B.

Ltd., challenges the dismissal of its action against the respondent lawyers and their firm in a decision dated January 29, 2010, reported at 2010 NBQB 34 . [ 2 ] In April 1996, 047438 N.B. Inc. engaged the respondent, Elizabeth Wilbur, to represent it on a transaction in which 047438 N.B. Inc. was the borrower and the appellant was the lender of up to $1.2 million to be repaid in two months. Ms. Wilbur took instructions from William West, the principal in 047438 N.B. Inc. Those instructions included advice that Mr.

West had received from the appellant regarding the particulars necessary to register a chattel mortgage under the Personal Property Security Act , S.N.B. 1993, c. P-7.1 (PPSA). Prior to registration, Ms. Wilbur provided copies of all documents to the appellant for review and comment. Upon registration of the security, she forwarded to the appellant the following reporting letter: April 9, 1996 VIA FAX 051766 N.B. LTD. 45 Queen Street East St. Stephen, NB E3L 2J5 ATTENTION: WINNIFRED YOUNG RE: LETTER OF CREDIT

Please find enclosed the “Verification of Registration” which indicates the chattel mortgage from 047438 NB Inc. was filed under the Personal Property Registry on April 9, 1996. A subsearch was conducted and I hereby confirm that the chattel mortgage dated April 8, 1996 from 047438 NB Inc. to 051766 NB Ltd. was registered second to a Debenture to the Caisse Populaire de Shippagan Limitée. I will be forwarding the original documentation in the mail forthwith. Yours very truly, Wilbur Grew Elizabeth A.

Wilbur [ 3 ] The Verification of Registration included, in the opening lines, notice that the registration expired on April 9, 1997. Neither the appellant (lender), nor Ms. Wilbur, renewed the registration on that date. The appellant claims to have suffered loss as a result, and the underlying litigation ensued. [ 4 ] The trial judge made the following findings of fact, all of which are relevant to the adjudication of this matter: […] It was also agreed that Mrs. Wilbur would register the chattel mortgage securing the financing as a second charge on the PPSA registry for a period of one year.

I find that these were the express terms of the retainer agreed to by the [appellant] and Mrs. Wilbur. […] […] The proposed PPSA filing form forwarded by Mrs. Wilbur to the [appellant] in her correspondence clearly indicated that the chattel mortgage would be registered for a period of one year and that the registration would occur on April 9, 1996. […] In

summary, I find that Mrs. Wilbur had a very limited retainer with the [appellant]. In my view, this conclusion is supported by the [appellant’s] conduct between April 9, 1996 and April 9, 1997 when it agreed to extend the term of the period of financing without consulting Mrs. Wilbur and also signed two Subordination Agreements to postpone or subordinate their security behind another creditor, again without consulting Mrs. Wilbur. […] […] there was not, since at least April 9, 1996 a continuing retainer or relationship of trust and confidence between the [appellant] and Mrs. Wilbur [...].

The [appellant] was not relying on Mrs. Wilbur for continuing or ongoing advice in any manner and she was under no contractual, professional or fiduciary duty to so advise. [paras. 35, 36, 53 and 59] [ 5 ] The trial judge’s findings of fact are only reversible by this Court in the event he committed palpable and

overriding error: Housen v. Nikolaisen , 2002 SCC 33 , [2002] 2 S.C.R. 235 . [ 6 ] We can find no error in the trial judge’s findings of fact. Furthermore, we do not find the trial judge erred in law in determining that the legal relationship between Ms. Wilbur and the appellant terminated on April 9, 1996 for the reasons set out in his decision. [ 7 ] Accordingly, the appeal is dismissed. The respondents are entitled to one set of costs of $12,142.00, being 40% of the costs awarded at trial as prescribed by Tariff “A”. ____________________________________ WALLACE S.

TURNBULL, J.A. _____________________________________ B. RICHARD BELL, J.A. ______________________________________ BRADLEY V. GREEN , J.A.