2013 MBCA 86, 2013 MBCA 86

Citation: Moss v. BMO Nesbitt Burns Inc., Date: 20130923 2013 MBCA 86 Docket: AI 13-30-07985 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Alan D. MacInnes Madam Justice Holly C. Beard Mr. Justice Marc M. Monnin BETWEEN : DANNY MOSS ) D. Moss ) on his own behalf (Plaintiff) Appellant ) ) D. J. Kroft and - and - ) C. C.

Fergusson ) for the Respondent ) BMO NESBITT BURNS INC. ) Appeal heard and ) Decision pronounced: (Defendant) Respondent ) September 23, 2013 MacINNES J.A. (for the Court): [ 1 ] The plaintiff (Moss), appeals the order of the motion judge dismissing Moss’s action against the defendant (BMO).

Background [ 2 ] Moss’s action is the culmination of several actions pertaining to his personal bankruptcy, the payment of monies to his daughter (Carrie) as beneficiary under six policies of life insurance on the life of Moss’s mother, an action commenced by Carrie against BMO with respect to losses arising from the investment of said insurance monies, the settlement of Carrie’s action against BMO and the commencement and continuation of this action by Moss based upon an identical claim to that of Carrie’s seeking the same relief as was sought by her in her settled action. [ 3 ] On March 7, 2000, Carrie executed a Client Account Agreement with BMO (the Agreement) for the purpose of aggressively investing the insurance monies.

In the Agreement, Carrie represented that no other person or persons would have a financial interest in the account and that Moss would have trading authority in the account. The Agreement appointed Moss as agent for Carrie. Moss confirmed the acceptance of his appointment as agent and confirmed that he had read and understood the Agreement. [ 4 ] In a related lawsuit, it was determined that the documents purportedly executed by Moss’s late mother changing the beneficiary of her life insurance policies from Moss to Carrie were not executed by the mother and were void ab initio .

In the result, the insurance proceeds invested by Carrie with BMO were found not to belong to Carrie, but to Moss. [ 5 ] Moss then took up prosecution of his action against BMO, asserting that he was a party to the Agreement. [ 6 ] BMO disputed Moss’s claim and moved for

summary judgment dismissing his action. [ 7 ] Alternatively, BMO sought to have his action struck out on the basis that it disclosed no reasonable cause of action and/or was an abuse of the process of the court. [ 8 ] BMO’s motions were dismissed by Master Lee. BMO successfully appealed Master Lee’s decision to the motion judge, and it is from the decision of the motion judge that this appeal has been brought. The Appeal

[ 9 ] Moss raises several grounds of appeal, but the real basis of his appeal is that the motion judge erred in finding that Moss was not a party to the Agreement and, alternatively, in finding that there was no basis upon which the doctrine of privity of contract should be relaxed so as to permit him the ability to proceed with his action against BMO. [ 10 ] The essence of the motion judge’s decision was to grant BMO’s

summary judgment motion dismissing Moss’s action. [ 11 ] The motion judge wrote that (at para. 31): …. Where the defendant seeks dismissal of an action, it has the initial burden of showing that the case is one in which the existence of a genuine issue is a proper question for consideration. Once the defendant has satisfied that burden, the burden then reverts to the plaintiff to establish that its claim is one with a real chance of success. …. It appears that it was that “initial burden” which the motion judge applied to BMO’s motion (see para. 68). [ 12 ] In our view, his enunciation and application of the burden of proof upon BMO in moving for

summary judgment were incorrect. The burden of proof was too low. [ 13 ] The proof requirement upon a moving defendant was clearly enunciated by Freedman J.A. in Homestead Properties (Canada) Ltd. v. Sekhri et al. , 2007 MBCA 61 , 214 Man.R. (2d) 148 (at para. 14 ): …. When the defendant moves [for

summary judgment], as here, he must prove, on a prima facie basis, that the plaintiff's action must fail. If he meets that burden, then the plaintiff has the burden to establish that there is a genuine issue for determination. He must show that his claim is “one with a real chance of success” .... If he fails to do so,

summary judgment dismissing the claim will follow. [ 14 ] While we are of the view that the motion judge enunciated and applied an incorrect proof burden upon BMO, he nevertheless reached the proper conclusion in granting

summary judgment to BMO as it is clear that BMO proved on a prima facie basis that Moss’s claim must fail. Having done that, the burden shifted to Moss to establish that there is a genuine issue for determination. In my view, he has failed to do so. [ 15 ] It is clear on the evidence, and, in particular, the Agreement and Moss’s acceptance therein as agent, that Moss was not a party to the Agreement.

As well, there was no basis upon which the doctrine of privity of contract should be relaxed in the circumstances of this case. [ 16 ] Moss argued, in the alternative, that he had rights either as the bailee of the money or as the grantee of a power of attorney. The facts do not support the finding of a bailment relationship between Moss and Carrie and the Agreement discloses that there was no power of attorney. Thus, neither of these arguments has any merit. [ 17 ] Having concluded that

summary judgment should be granted in favour of BMO, it is unnecessary to deal with any of the other issues raised by Moss. [ 18 ] Accordingly, Moss’s appeal is dismissed, with costs in favour of BMO. J.A. J.A. J.A.