Moss v. BMO Nesbitt Burns Inc., 2013 MBCA 86

• Judge: MacInnes, Beard and Monnin, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: September 23, 2013
• Jurisdiction: Manitoba
• Citations: 2013 MBCA 86;(2013), 299 Man.R.(2d) 146 (CA)

Moss v. BMO Nesbitt Burns (2013), 299 Man.R.(2d) 146 (CA);

      590 W.A.C. 146

MLB headnote and full text

Temp. Cite: [2014] Man.R.(2d) TBEd. JA.026

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

(AI 13-30-07985; 2013 MBCA 86)

Indexed As: Moss v. BMO Nesbitt Burns Inc.

Manitoba Court of Appeal

MacInnes, Beard and Monnin, JJ.A.

September 23, 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, in a decision reported at (2013), 293 Man.R.(2d) 72, allowed the appeal. Moss' action was dismissed. Moss appealed.

The Manitoba Court of Appeal dismissed 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 - Bryk, J., dismissed the action on the basis that Moss was not a party to the agreement and there was no basis on which to relax the doctrine of privity - Moss had no legal right to pursue an action based on a breach of the contract between Carrie and BMO - The Manitoba Court of Appeal dismissed Moss' appeal - While Bryk, J., had enunciated and applied an incorrect proof burden on BMO, he had reached the proper conclusion as it was clear that BMO had proven on a prima facie basis that Moss' claim had to fail - BMO having done that, the burden shifted to Moss to establish that there was a genuine issue for determination - He had failed to do so.

Practice - Topic 5719

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

Cases Noticed:

Homestead Properties (Canada) Ltd. v. Sekhri et al. (2007), 214 Man.R.(2d) 148; 395 W.A.C. 148; 2007 MBCA 61, refd to. [para. 13].

Counsel:

D. Moss, on his own behalf;

D.J. Kroft and C.C. Fergusson, for the respondent.

This appeal was heard on September 23, 2013, by MacInnes, Beard and Monnin, JJ.A., of the Manitoba Court of Appeal. On the same date, MacInnes, J.A., pronounced the following decision for the court.