2011 QCCA 150, 2011 QCCA 150

Osadchuk c. Financière Banque Nationale inc. 2011 QCCA 150 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-019265-099 ( 750-17-000987-069 ) MINUTES OF THE HEARING DATE: January 26, 2011 CORAM: THE HONOURABLE JACQUES CHAMBERLAND, J.A. FRANÇOIS DOYON, J.A. NICOLE DUVAL HESLER, J.A. APPELLANT(

S) ATTORNEY(

S) BORIS OSADCHUK Mtre Yvon Robichaud ROBICHAUD & ASSOCIÉS RESPONDENT(

S) ATTORNEY(

S) LA FINANCIÈRE BANQUE NATIONALE INC. et CLAUDE RÉMILLARD Mtre Elisabeth Laroche HEENAN, BLAIKIE ATTORNEY(

S) On appeal from a judgment rendered on December 1, 2008 by the Honourable Mr. Justice Louis Crête of the Superior Court district of Saint-Hyacinthe. NATURE OF THE APPEAL : Liability Clerk: MARC LEBLANC Court Room: PIERRE-BASILE-MIGNAULT HEARING 10 h 07 Beginning of the hearing. 10 h 07 Argument of Mtre Robichaud. 10 h 17 Argument of Mtre Laroche. 10 h 29 Representations of Mtre Robichaud. 10 h 30 Suspension of the hearing. 10 h 47 Resumption of the hearing. Judgment rendered – see page 3. 10 h 49 The hearing is concluded. Marc Leblanc Clerk BY THE COURT JUDGMENT

[ 1 ] Appellant dislikes both the tone and the content of the judgment under appeal. [ 2 ] Admittedly, the judgment is caustic, but that does not give rise to the intervention of the Court. [ 3 ] The judge rightly came to the conclusion that there was no firm order to buy and that, in any event, the scenario which the parties had discussed (to purchase three thousands Baidu shares at $35 U.S.) turned out to be unrealizable. [ 4 ] The stock was at $66 U.S. per share at the opening of the market, reached $80 U.S. per share in the afternoon and, eventually, $150 U.S. per share by the end of the day. [ 5 ] The simple truth is that appellant did not have the resources to make such a purchase. [ 6 ] He now says that all his positions should have been liquidated ($151,000 Cdn) and invested in Baidu shares at whatever price. [ 7 ] However, he knew that Mr.

Rémillard was not going to be in the office for the rest of the day and when he spoke to Mr. Massé, at Mr. Rémillard's office, he declined to purchase the shares at $80 U.S. and said he would call back. When he phoned Mr. Massé a second time, the shares had again jumped in price. [ 8 ] The broker committed no fault. The findings of the trial judge to that effect are amply justified by the evidence. Appellant simply never gave a firm mandate to purchase. [ 9 ] FOR THESE REASONS, THE COURT : [ 10 ] DISMISSES the appeal, with costs. JACQUES CHAMBERLAND, J.A. FRANÇOIS DOYON, J.A. NICOLE DUVAL HESLER, J.A.