2012 SKCA 122 Date:, 2012 SKCA 122

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 122 Date: 2012-12-10 Between: Docket: 1956 Shirley Milligan Moffat Appellant - and - Royal Bank of Canada Respondent Coram: Cameron, Jackson and Herauf JJ.A. Counsel: Shirley Moffat, the appellant with John Hillson assisting James Morrison for the respondent

Appeal: From: 2010 SKQB 191 Heard: December 10, 2012 Disposition: Dismissed Written Reasons: December 12, 2012 By: The Honourable Madam Justice Jackson In Concurrence: The Honourable Mr. Justice Cameron The Honourable Mr. Justice Herauf Jackson J.A. (orally) [1] Every trial judgment is made up of a series of decisions: some on the facts, some on the law and an ultimate conclusion.

The trialjudgment under consideration in this appeal turns on some crucial decisions, pertaining to the facts, that dictate the result. [2] In relation to the February 18, 2005 meeting at the offices of the Royal Bank, the trial judge found that Mr. Hylton of CHIP and Ms.Seymour of the Royal Bank were left with the general impression that the $140,000 received from CHIP would be applied against theRoyal Bank line of credit (para. 13 of the decision of Mills J. at 2010 SKQB 191). Ample testimony and documentary evidence supportsthis finding (see the trial testimony of Ms. Seymour and Mr.

Hylton and the March 4, 2005 letter sent by the former to the latter). EvenMrs. Moffat testified that, following the February 18, 2005 meeting, she and her husband discussed why Mr. Hylton and Ms. Seymourasked how the balance of the line of the credit in the amount $60,000 would be paid. The question was only pertinent if Ms. Seymourand Mr. Hylton believed the CHIP proceeds would be used to pay down the Royal Bank line of credit.

Given the evidentiary basesupporting the Bank’s view of the transaction, the trial judge’s finding of fact on this point cannot be challenged on the basis of palpableand overriding error (see H.L. v. Canada (Attorney General), 2005 SCC 25 , 2005SCC 25, [2005] 1 S.C.R. 401). [3] The second crucial finding of fact is that Mrs. Moffat was left with the impression following the February 18, 2005 meeting that shewould have $80,000 to use as she wished (para. 14). This view of the transaction, too, is amply supported by Mrs.

Moffat’s owntestimony and, as such, is unassailable on appeal. [4] What the trial judge made of these findings of fact is a question of law. He found that “there was no agreement between the parties,although they acted jointly in their mistaken assumption that an agreement had taken place” (see para. 30). Now, whether the trial judgehad to go this far is of no consequence to the within appeal because he also considered the appropriate remedy. Underlying that decisionis a third crucial finding of fact. [5] The trial judge found that within ten days of being advised that Mrs.

Moffat did not accept the Bank’s actions, it offered to undo theentire transaction and absorb all of Mrs. Moffat’s losses. Mrs. Moffat rejected the offer (see para. 23). She rejected it because shewanted to receive what she believed the contract would have given her according to her view of the matter; no other result was acceptableto her. Once the trial judge found that no contract existed, according to Mrs. Moffat’s terms, she could not expect the trial judge to awardher what her

interpretation of the contract would have given her. In any event, the fact of that rejected offer led the trial judge toconclude that he could not quantify what her damages were. That is an entirely sustainable conclusion. [6] Mrs. Moffat also claimed that the Bank breached a fiduciary duty owed to her. The trial judge stated the law correctly and, based onthe application of that law to the facts, he found that the Bank did not owe Mrs. Moffat a fiduciary duty.

Whether another court onanother occasion might reach a different conclusion on similar facts is beside the point, because the trial judge’s conclusion, regardingremedy, applies here too. Even if the Bank owed Mrs. Moffat a fiduciary duty, her rejection of the Bank’s offer to restore her to her priorposition as it existed before obtaining the CHIP mortgage is a complete legal answer to her claim. [7] Mrs. Moffat’s final cause of action depended on her successfully asserting that the Bank had converted the CHIP mortgage proceedsby applying them to her outstanding line of credit. Mr.

Morrison’s submission to the effect that the Bank’s actions cannot constituteconversion appears to be entirely correct based as it is on the Direction and Authorization to disburse all amounts required to register apostponement of its mortgage. The Bank used the funds to retire a portion of Mrs. Moffat’s indebtedness to it. In any event, in light of

the rejection of the Bank’s offer to restore her to her former position, Mrs. Moffat has not proven that she has suffered any damages at law. [ 8 ] With that, the appeal is dismissed with costs. No costs order is made with respect to any of the applications leading up to the hearing of the appeal.