Moss v. Richardson Greenshields of Canada Ltd. and Davies, (1989) 56 Man.R.(2d) 230 (CA)

• Judge: Huband, Philp and Twaddle, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: November 29, 1988
• Jurisdiction: Manitoba
• Citations: (1989), 56 Man.R.(2d) 230 (CA)

Moss v. Richardson Greenshields (1989), 56 Man.R.(2d) 230 (CA)

MLB headnote and full text

Danny Moss (plaintiff/appellant) v. Richardson Greenshields of Canada Limited and Preston Davies (defendants/respondents)

(Suit No. 114/88)

Indexed As: Moss v. Richardson Greenshields of Canada Ltd. and Davies

Manitoba Court of Appeal

Huband, Philp and Twaddle, JJ.A.

January 23, 1989.

Summary:

Moss allegedly suffered a loss when a stockbroker sold his options above their limit price due to a computer error. Moss commenced an action against the stockbrokerage firm and the account executive who handled his account.

The Manitoba Court of Queen's Bench, in a decision reported in 53 Man.R.(2d) 117, dismissed the action. Moss appealed.

The Manitoba Court of Appeal dismissed the appeal.

Brokers - Topic 3083

Duties of broker to principal - Stockbrokers - Contractual duties - The Manitoba Court of Appeal referred to the normal duty of a stockbroker - The court stated that a stockbroker's duty lies primarily in contract - See paragraph 19.

Brokers - Topic 3092

Duties of broker to principal - Stockbrokers - Gross negligence - A stockbrokerage firm and a client executed an options trading agreement which, inter alia, limited the brokerage's liability to cases of gross negligence or willful misconduct - Due to a computer failure, the account executive handling the account sold the client's options above their limit price - The Manitoba Court of Appeal affirmed the dismissal of the client's action against the brokerage for breach of contract, because there was no gross negligence - The court further held that the account executive was not a party to the options agreement, or an implied party - The court further held that the account executive could not be sued for breach of contract because there was no independent cause of action against him - Neither could he be sued in negligence, because his duties related solely to his work as an employee of the brokerage firm and there was not some more general duty of care owing to the client existing beyond the contract -Moreover, the court found that the executive was not even negligent - See paragraphs 20 to 36, 39 to 42.

Contracts - Topic 521

Parties - Who constitutes a party - General - A stockbrokerage firm and a client executed an options trading agreement which included, inter alia, a clause which limited the brokerage's liability to cases of gross negligence or willful misconduct - The Manitoba Court of Appeal held that the account executive who handled the client's options trading account was not a party to the contract such that the exemption clause respecting gross negligence applied to him, nor was he a party by implication - See paragraphs 23 to 36.

Cases Noticed:

Scruttons Ltd. v. Midland Silicones Ltd., [1962] 1 All E.R. 1 (H.L.), dist. [para. 24].

Greenwood Shopping Plaza Ltd. v. Beattie, [1980] 2 S.C.R. 228; 32 N.R. 163; 39 N.S.R.(2d) 119; 71 A.P.R. 119, dist. [para. 24].

Gore v. Van der Lann, [1967] 2 Q.B. 31, dist. [para. 27].

Jarvis v. Moy, Davies, Smith, Vandervell & Co., [1936] 1 K.B. 399 (Eng. C.A.), consd. [para. 30].

Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd., [1964] A.C. 465, not appld. [para. 31].

Authors and Works Noticed:

Charlesworth and Percy on Negligence (7th Ed. 1983), para. 9-104 [para. 19].

Anson, Law of Contract (25th Ed. 1979), p. 182 [para. 25].

Counsel:

D.G. Hill, for the appellant;

M.T. Green, for the respondents.

This appeal was heard before Huband, Philp and Twaddle, JJ.A., of the Manitoba Court of Appeal on October 5 and November 29, 1988. The decision of the Court of Appeal was delivered on January 23, 1989, when the following opinions were filed:

Huband, J.A. (Philp, J.A., concurring) - see paragraphs 1 to 37;

Twaddle, J.A. - see paragraphs 38 to 42.