Giesbrecht v. Canada Life Assurance Co. et al., 2013 MBCA 53

• Judge: Monnin, Steel and Hamilton, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: October 22, 2012
• Jurisdiction: Manitoba
• Citations: 2013 MBCA 53;(2013), 294 Man.R.(2d) 62 (CA)

Giesbrecht v. Can. Life (2013), 294 Man.R.(2d) 62 (CA);

      581 W.A.C. 62

MLB headnote and full text

Temp. Cite: [2013] Man.R.(2d) TBEd. JN.021

Abram Giesbrecht and Nora Olga Giesbrecht (plaintiffs/respondents) v. Laura Klassen, as the Litigation Administrator of the Estate of Richard E. Kirk, operating as R.E. Kirk Financial Services and the said R.E. Kirk Financial Services and Ronald S. Browning, operating as Browning Financial Services and the said Browning Financial Services (defendants/appellants) and The Canada Life Assurance Company (defendant)

(AI 12-30-07719; 2013 MBCA 53)

Indexed As: Giesbrecht v. Canada Life Assurance Co. et al.

Manitoba Court of Appeal

Monnin, Steel and Hamilton, JJ.A.

June 10, 2013.

Summary:

The plaintiffs claimed that their decision to retire early was largely motivated by the impression imparted by their financial planners, two life insurance agents, that the plaintiffs' investment plan would generate a certain income for a number of years. The plan failed to do so. The plaintiffs sued the insurance agents for damages for lost income due to their early retirement, alleging negligent misrepresentation, negligence, breach of contract, and breach of fiduciary duty.

The Manitoba Court of Queen's Bench, in a decision reported at 271 Man.R.(2d) 151, held that the plaintiffs failed to prove allegations of negligent misrepresentation, breach of contract and breach of fiduciary duty. However, the plaintiffs established their negligence claim. Damages were assessed accordingly. The trial judge found that the plaintiffs were contributorily negligent to the extent of 40%. The defendants appealed and the plaintiffs cross-appealed.

The Manitoba Court of Appeal allowed the defendants' appeal on the issue of causation. The negligence claim was not established. The court dismissed the plaintiffs' cross-appeal, holding that the trial judge did not err when he dismissed the plaintiffs' claims in negligent misrepresentation and contract.

Fraud and Misrepresentation - Topic 2508

Misrepresentation - General principles - Negligent misrepresentation - The plaintiffs claimed that their decision to retire early was largely motivated by the impression imparted by their two life insurance agents that the plaintiffs' investment plan would generate a certain income for several years - The plan failed to do so - The plaintiffs sued the insurance agents, alleging negligent misrepresentation - The trial judge held that the plaintiffs established only four of the five prerequisites to such a claim - There was a special relationship between the parties giving rise to a duty of care - The representations in the plan were misleading - The plan was prepared negligently - Damages were established - However, the plaintiffs' claim failed because their reliance on the plan in making their retirement decision was unreasonable given that the plan contained illustrations based on assumptions rather than statements of fact - The plaintiffs appealed - The Manitoba Court of Appeal dismissed the appeal - See paragraphs 92 to 103.

Insurance - Topic 508

Agents - Liability of agent - General - Where agent acting as financial or investment advisor - The plaintiffs claimed that their decision to retire early was largely motivated by the impression imparted by their financial planners, two life insurance agents, that the plaintiffs' investment plan would generate a certain income for a number of years - The plan failed to do so - The plaintiffs sued the life insurance agents, alleging breach of contract (i.e., the agents breached an implied term of their contract by failing to diligently perform their services in providing financial advice, providing a retirement plan and managing their portfolio) - The trial judge rejected the contract claim - There was no contractual agreement between the parties in relation to preparation of the plan - One of the agents offered to prepare a plan and one of the plaintiffs might have tacitly accepted that offer, but there was no discussion or agreement of any express terms and there was no consideration - The plaintiffs appealed - The Manitoba Court of Appeal dismissed the appeal - See paragraphs 100 to 104.

Torts - Topic 54

Negligence - Causation - Test for (incl. "but for" test and "material contribution" test) - The plaintiffs claimed that their decision to retire early was largely motivated by the advice of their financial planners, two life insurance agents, that the plaintiffs' investment plan would generate an income of approximately $35,000 until they were 90 years old - The plan failed to do so - The plaintiffs sued the insurance agents, alleging negligence - The trial judge held that the agents were negligent in the preparation and implementation of the plan and that the agents' negligence was the proximate cause of the financial losses sustained by the plaintiffs - The agents appealed - The Manitoba Court of Appeal allowed the appeal, holding that causation was not established - The trial judge failed to address "cause-in-fact" which in this case required him to apply the "but for test" - Had he done so he would have had to conclude that the plaintiffs had not proven causation to sustain their claim in negligence - See paragraphs 54 to 91.

Torts - Topic 8992

Duty of care - Negligent words - Preparation of financial information - [See Fraud and Misrepresentation - Topic 2508 ].

Cases Noticed:

Queen (D.J.) v. Cognos Inc., [1993] 1 S.C.R. 87; 147 N.R. 169; 60 O.A.C. 1, refd to. [para. 41].

Foster Advertising Ltd. v. Keenberg and Manitoba, [1987] 3 W.W.R. 127; 45 Man.R.(2d) 1; 35 D.L.R.(4th) 521 (C.A.), refd to. [para. 43].

Andronyk v. Williams, [1986] 1 W.W.R. 225; 36 Man.R.(2d) 161 (C.A.), refd to. [para. 43].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 68].

Hanke v. Resurfice Corp. et al., [2007] 1 S.C.R. 333; 357 N.R. 175; 404 A.R. 333; 394 W.A.C. 333; 2007 SCC 7, refd to. [para. 72].

Clements v. Clements, [2012] 2 S.C.R. 181; 431 N.R. 198; 346 D.L.R.(4th) 577; 2012 SCC 32, refd to. [para. 72].

Ediger v. Johnston (2013), 442 N.R. 105; 333 B.C.A.C. 1; 571 W.A.C. 1; 2013 SCC 18, refd to. [para. 72].

Hayes v. Schimpf et al. (2005), 219 B.C.A.C. 48; 361 W.A.C. 48; 2005 BCCA 568, refd to. [para. 94].

Kelly v. Lundgard (2001), 286 A.R. 1; 253 W.A.C. 1; 2001 ABCA 185, refd to. [para. 94].

Authors and Works Noticed:

Klar, Lewis N., Tort Law (5th Ed. 2012), p. 445 [para. 69].

Counsel:

W.S. Gange, for the appellants, Laura Klassen as the Litigation Administrator of the Estate of Richard E. Kirk, operating as R.E. Kirk Financial Services and the said R.E. Kirk Financial;

D.R. Knight, Q.C., for the appellants, Ronald S. Browning, operating as Browning Financial Services and the said Browning Financial Services;

F.J. Trippier and K.R. Wittman, for the respondents.

This appeal was heard on October 22, 2012, before Monnin, Steel and Hamilton, JJ.A., of the Manitoba Court of Appeal. The following decision was delivered for the court by Hamilton, J.A., on June 10, 2013.