2012 NBCA 44, 2012 NBCA 44

COURT OF APPEAL OF NEW BRUNSWICK 92-11-CA RICHARD BARTLETT (Applicant) APPELLANT RICHARD BARTLETT (Requérant) APPELANT - and - - et - MICHELLE MURPHY ( Respondent) RESPONDENT MICHELLE MURPHY (Intimé

e) INTIMÉE Bartlett v. Murphy, 2012 NBCA 44 Bartlett c. Murphy, 2012 NBCA 44 CORAM: The Honourable Justice Richard The Honourable Justice Quigg The Honourable Justice Green CORAM : L’honorable juge Richard L’honorable juge Quigg L’honorable juge Green Appeal from a decision of the Court of Queen’s Bench: May 27, 2011 Appel d’une décision de la Cour du Banc de la Reine : Le 27 mai 2011 History of Case: Historique de la cause : Decision under appeal: 2011 NBQB 139 Décision frappée d’appel : 2011 NBBR 139 Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : S.O.

Appeal heard: April 19, 2012 Appel entendu : Le 19 avril 2012 Judgment rendered: May 17, 2012 Jugement rendu : Le 17 mai 2012

Counsel at hearing: For the appellant: Richard Bartlett appeared in person For the respondent: Peter J.C. White Avocats à l’audience : Pour l’appelant : Richard Bartlett a comparu en personne Pour l’intimée : Peter J.C. White THE COURT The appeal is dismissed with costs of $1,500. LA COUR L’appel est rejeté avec dépens de 1 500 $. The following is the judgment delivered by THE COURT [ 1 ] After five years of cohabitation, during which a child was born of their union, Richard Bartlett and Michelle Murphy separated. During their time together, Ms.

Murphy acquired a house purchased from money her mother gave her as a gift. The couple made renovations to the home and to the property and used it as a place from which they operated a business. After their separation, the house was sold at a profit. Mr. Bartlett applied to the Court of Queen’s Bench for a share of the proceeds of the sale, claiming the work he had done on the property unjustly enriched Ms. Murphy. In a decision reported at 2011 NBQB 139 , 374 N.B.R. (2d) 270 , a judge of the Family Division dismissed his application. Mr.

Bartlett now appeals on grounds that all effectively raise questions of fact. Ms. Murphy seeks the dismissal of the appeal for the reasons set out in the trial judge’s decision. Alternatively, in a Notice of Contention, she seeks a set off for debts accumulated over the period of cohabitation. [ 2 ] Time and again we have said that the role of the Court of Appeal is not to retry cases; so much so that it is no longer necessary to cite authority for the proposition. A superficial browse through the cases of this Court quickly reveals the Court’s admonition against retrying cases.

Similarly, anyone so inclined to browse through appellate decisions will quickly find that deference is afforded to a trial judge’s findings of fact that are not the product of a palpable and overriding error and to the findings of mixed law and fact that form the basis for the ultimate conclusion of an issue raised at trial. [ 3 ] In the present case, the application judge rightly noted that the claim grounded on the principle of unjust enrichment is “a very fact sensitive inquiry” (para. 3). The judge followed the law as set out by the Supreme Court in Kerr v. Baranow , 2011 SCC 10 , [2011] 1 S.C.R. 269 .

None of the grounds of appeal alleges an error of law. Rather, they challenge the judge’s credibility or factual findings or inferences, but they do not do so on the applicable palpable and overriding standard. Effectively, Mr. Bartlett invites us to re-weigh the evidence, and to make our own credibility findings and factual determinations. In short, he asks us to retry the case. This is simply not our role. [ 4 ] We find no reversible error in the application judge’s credibility findings, in his determination of the facts or in the factual inferences he drew from these.

In our view, none of the grounds of appeal have any merit. [ 5 ] Although not raised as a ground of appeal, Mr. Bartlett also argued he had not had a proper opportunity to advance his case at trial because Ms. Murphy adduced certain evidence he had not foreseen and was not prepared to counter. In our view, this argument is also without merit. Although objection was taken with the relevance of evidence relating to the business the

parties operated, the experienced counsel who represented Mr. Bartlett at trial did not request any adjournment to reply to this evidence, nor did he argue procedural unfairness. Moreover, it was certainly foreseeable this evidence would be adduced. In any event, the evidence in question did not play any determinative role in the outcome of the matter. [ 6 ] For these reasons, the appeal is dismissed. It is therefore not necessary to pass judgment on the issues raised in the Notice of Contention. In the circumstances, Mr. Bartlett is ordered to pay costs to Ms.

Murphy in the amount of $1,500. _____________________________ J.C. MARC RICHARD, J.A. _____________________________ KATHLEEN A. QUIGG, J.A. _____________________________ BRADLEY V. GREEN, J.A.