2012 NBCA 30, 2012 NBCA 30

COURT OF APPEAL OF NEW BRUNSWICK 3-10-CA CONSTRUCTION B.H.M. LIMITÉE and NORMAN BRIDEAU (Plaintiffs) APPELLANTS CONSTRUCTION B.H.M. LIMITÉE et NORMAN BRIDEAU (Demandeurs) APPELANTS - and - - et - CAISSE POPULAIRE DE SHIPPAGAN LIMITÉE (Defendant) RESPONDENT CAISSE POPULAIRE DE SHIPPAGAN LIMITÉE (Défenderesse) INTIMÉE Construction B.H.M. Limitée and Brideau v. Caisse populaire de Shippagan Limitée, 2012 NBCA 30 Construction B.H.M. Limitée et Brideau c.

Caisse populaire de Shippagan Limitée, 2012 NBCA 30 CORAM: The Honourable Justice Deschênes The Honourable Justice Richard The Honourable Justice Bell CORAM : L’honor able juge Deschênes L’honorable juge Richard L’honorable juge Bell Appeal from a decision of the Court of Queen’s Bench: December 7, 2009 Appel d’une décision de la Cour du Banc de la Reine : Le 7 décembre 2009 History of Case: Historique de la cause : Decision under appeal: 2009 NBQB 323 – (Unreported) Décision frappée d’appel : 2009 NBBR 323 – (Inédite) Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : S.O.

Appeal heard: January 11, 2012 Appel entendu : Le 11 janvier 2012

Judgment rendered: April 5, 2012 Jugement rendu : Le 5 avril 2012 Counsel at hearing: For the appellants: Norman Brideau appeared in person and on behalf of Construction B.H.M. Limitée For the respondent: Ivan Robichaud Avocats à l’audience : Pour les appelants : Norman Brideau, en son nom et au nom de Construction B.H.M. Limitée Pour l’intimée : Ivan Robichaud THE COURT The appeal is dismissed with costs of $2,500. LA COUR L’appel est rejeté avec dépens de 2 500 $.

English version of the judgment delivered by THE COURT [ 1 ] The appellants filed suit against the respondent arguing they had sustained losses as a result of the breach of an oral contract and other wrongs. At trial, the appellants contended that there was an oral contract between them and the respondent for the development of land and construction of residential housing in the Riverview, New Brunswick area. According to the appellants, the project provided for more than 40 houses. The respondent, on the other hand, argued that the appellants had been hired to build only four houses.

Nevertheless, the respondent acknowledged that if the project had gone ahead as planned, other houses would have been built. However, the respondent categorically denies there was an agreement or undertaking between the respondent and the appellants with respect to the development of other lots. [ 2 ] In a decision rendered on December 7, 2009 ( 2009 NBQB 323 – unreported), a judge of the Court of Queen’s Bench concluded: [Translation] I will begin […] by pointing out that in general, the allegations of wrongdoing against the Caisse are unfounded and the allegations of losses are not consistent with the facts.

Specifically, the allegations of breach of contract, undue influence, breach of trust, misrepresentations, conflict of interest, breach of fiduciary duty, and of losses are not supported by the evidence presented. There was no oral contract between the parties and the only agreements were the ones with respect to four houses as evidenced by the signed contracts. [paras. 26, 27 and 28] [ 3 ] The appellants raise several grounds of appeal which are clearly related to the trial judge’s findings of fact.

A highly deferential standard of review applies to these findings: the standard of palpable and overriding error ( Housen v. Nikolaisen , 2002 SCC 33 , [2002] 2 S.C.R. 235 ). [ 4 ] Although the appellants have raised several grounds of appeal, a close examination of the arguments in

support of those grounds shows that the appellants are in effect asking us to retry the case on appeal. Essentially, the appellants invite this Court to reassess the evidence, draw conclusions that are favourable to them and substitute those findings for those of the trial judge. It is settled law that is not the role of an appellate court. [ 5 ] The trial judge heard oral testimony and received some written evidence concerning the issues. He assessed the credibility of the witnesses, made findings of fact and drew inferences.

By applying the law to those facts and inferences, he reached those conclusions the appellants would now have us set aside. We find no error of law, error in principle or overriding error in the

interpretation of the evidence in the decision appealed from. We have underlined the qualifier “overriding” because the appellants did show that the judge had erred when he concluded, for instance, that the appellants had no work in the Shippagan area, and that this was the reason why they had agreed to take

part in the Riverview project. The evidence clearly shows the appellants had work in Shippagan restoring a ferry. Nevertheless, the appellants have failed to satisfy this Court that that particular error or any other is overriding, in the sense that it could have had an impact on the judge’s final decision. [ 6 ] It follows that by applying the appropriate standard of review, we would dismiss the appeal with costs of $2,500. ______________________________ Alexandre Deschênes, j.c.a. ________________________________ J.C. Marc Richard, j.c.a. ________________________________ B. Richard Bell, j.c.a.