Moss v. BMO Nesbitt Burns Inc., 2013 MBQB 127

• Judge: Bryk, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: June 10, 2013
• Jurisdiction: Manitoba
• Citations: 2013 MBQB 127;(2013), 293 Man.R.(2d) 72 (QB)

Moss v. BMO Nesbitt Burns (2013), 293 Man.R.(2d) 72 (QB)

MLB headnote and full text

Temp. Cite: [2013] Man.R.(2d) TBEd. JN.047

Danny Moss (plaintiff/respondent) v. BMO Nesbitt Burns Inc. (defendant/appellant)

(CI 06-01-45989; 2013 MBQB 127)

Indexed As: Moss v. BMO Nesbitt Burns Inc.

Manitoba Court of Queen's Bench

Winnipeg Centre

Bryk, J.

June 10, 2013.

Summary:

Moss was an undischarged bankrupt from 1996 to 2011. Shortly before Moss' bankruptcy, the beneficiary of his mother Eliza's life insurance policies was changed from Moss to Moss' daughter Carrie. In 1999, Eliza died and Carrie received funds that were invested with the defendant BMO. The agreement was solely between Carrie and BMO. Moss was authorized to make trades on Carrie's behalf, but he was not a party to the agreement. In 2000, Carrie sued BMO, alleging breaches that resulted in her suffering a loss. A separate action alleged, ultimately successfully, that the changes of beneficiary were void. BMO amended its defence in Carrie's action to incorporate the allegations. Moss commenced the within action, which mirrored Carrie's action. A Master dismissed BMO's motion for summary judgment to dismiss the action. BMO appealed.

The Manitoba Court of Queen's Bench allowed the appeal.

Contracts - Topic 1163

Formation of contract - Privity of contract - Requirement of existence of - Moss was an undischarged bankrupt from 1996 to 2011 - Shortly before Moss' bankruptcy, the beneficiary of his mother Eliza's life insurance policies was changed from Moss to Moss' daughter Carrie - In 1999, Eliza died and Carrie received funds that were invested with the defendant BMO - The agreement was solely between Carrie and BMO - Moss was authorized to make trades on Carrie's behalf, but he was not a party to the agreement - In 2000, Carrie sued BMO, alleging breaches that resulted in her suffering a loss - A separate action alleged, ultimately successfully, that the changes of beneficiary were void - BMO amended its defence in Carrie's action to incorporate the allegations - Moss commenced the within action, which mirrored Carrie's action - A Master dismissed BMO's motion for summary judgment to dismiss the action - The Manitoba Court of Queen's Bench allowed BMO's appeal - Moss had not established any basis on which privity of contract could be relaxed - Further, any consideration in relaxing the doctrine of privity would be defeated by the doctrine of equity - Moss had created the situation whereby Carrie became the beneficiary with the intent of keeping those proceeds from his creditors - He did not come to court with clean hands - The statement of claim did not disclose a reasonable cause of action - Moss had no legal right to pursue an action based on a breach of the contract between Carrie and BMO - See paragraphs 68 to 72.

Equity - Topic 1482

Equitable principles respecting relief - Clean hands doctrine - Application of - [See Contracts - Topic 1163 ].

Practice - Topic 5719

Judgments and orders - Summary judgments - To dismiss action - [See Contracts - Topic 1163 ].

Cases Noticed:

ABI Biotechnology Inc. v. Apotex Inc. et al. (2008), 231 Man.R.(2d) 259; 437 W.A.C. 259; 2008 MBCA 146, refd to. [para. 2].

Jacobson Estate v. Freed et al. (1994), 97 Man.R.(2d) 197; 79 W.A.C. 197 (C.A.), refd to. [para. 3].

Fidkalo v. Levin (1992), 76 Man.R.(2d) 267; 10 W.A.C. 267 (C.A.), refd to. [para. 31].

Atlas Acceptance Corp. et al. v. Lakeview Development of Canada Ltd. et al. (1992), 78 Man.R.(2d) 161; 16 W.A.C. 161 (C.A.), refd to. [para. 31].

Guarantee Co. of North America v. Gordon Capital Corp., [1999] 3 S.C.R. 423; 247 N.R. 97; 126 O.A.C. 1, refd to. [para. 31].

Blanco et al. v. Canada Trust Co. et al., [2003] 9 W.W.R. 79; 173 Man.R.(2d) 247; 293 W.A.C. 247; 2003 MBCA 64, refd to. [para. 31].

Petrifond Midwest Ltd. v. Esso Resources Canada Ltd. et al., [1994] 4 W.W.R. 466; 150 A.R. 16 (Q.B.), revd. [1996] 10 W.W.R. 1; 187 A.R. 107; 127 W.A.C. 107 (C.A.), refd to. [para. 33].

Timmerman's Enterprises Ltd. v. Painter and Painter Farms Ltd. (1986), 42 Man.R.(2d) 16 (Q.B.), affd. (1986), 42 Man.R.(2d) 16 (C.A.), refd to. [para. 39].

Greenwood Shopping Plaza Ltd. v. Beattie and Pettipas, [1980] 2 S.C.R. 228; 32 N.R. 163; 39 N.S.R.(2d) 119; 71 A.P.R. 119, refd to. [para. 39].

Roberts (Wm.) Electrical & Mechanical Ltd. v. Kleinfeldt Consultants Ltd., [1985] 20 C.L.R. 206 (Ont. H.C.), refd to. [para. 39].

Layton v. Smith (1884), 17 N.S.R. 331 (C.A.), dist. [para. 43].

Fraser River Pile & Dredge Ltd. v. Can-Dive Services Ltd., [1999] 3 S.C.R. 108; 245 N.R. 88; 127 B.C.A.C. 287; 207 W.A.C. 287, refd to. [para. 49].

Coast-to-Coast Industrial Development Co. v. 1657483 Ontario Inc. et al., [2010] O.T.C. Uned. 2011; 2010 ONSC 2011, refd to. [para. 49].

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321, refd to. [para. 51].

Hunt v. Carey Canada Inc. - see Hunt v. T & N plc. et al.

Kalo v. Gray Academy of Jewish Education (2006), 211 Man.R.(2d) 9; 2006 MBQB 260 (Master), refd to. [para. 51].

Babavic v. Babowech (1993), 42 A.C.W.S.(3d) 447 (B.C.S.C.), refd to. [para. 53].

Sagon v. Royal Bank of Canada et al. (1992), 105 Sask.R. 133; 32 W.A.C. 133 (C.A.), refd to. [para. 53].

Bodnarchuk v. RBC Life Insurance Co. et al. (2010), 253 Man.R.(2d) 7; 2010 MBQB 85, refd to. [para. 59].

Venture Capital USA Inc. et al. v. Yorkton Securities Inc. (2005), 197 O.A.C. 264; 75 O.R.(3d) 325 (C.A.), dist. [para. 59].

Northey-Taylor et al. v. Casey et al. (2007), 414 A.R. 318; 2007 ABQB 113, dist. [para. 59].

Markarian v. Marchés Mondiaux CIBC Inc., [2006] R.J.Q. 2851; 2006 QCCS 3314, dist. [para. 59].

Authors and Works Noticed:

Harvey, Cameron, Agency Law Primer (1993), p. 77 [paras. 39, 40].

Counsel:

The plaintiff/respondent appeared on his own behalf;

David J. Kroft and Celia Fergusson, for the defendant/appellant.

This appeal was heard by Bryk, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on June 10, 2013.