No duty to disclose beneficiary change, court finds

An Ontario appeal court has dismissed a widow’s effort to sue brokerage firm BMO Nesbitt Burns Inc. after she was removed as the beneficiary of her husband’s brokerage accounts in favour of his children, without her knowledge.

The Court of Appeal dismissed the appeal of a lower court’s decision, which tossed out a lawsuit against the firm. Anne Elizabeth Fair alleged the firm violated a duty to her by failing to inform her that, shortly before his death, her husband had changed the beneficiary on his investment accounts to his children from a former marriage.

The claim was dismissed by the lower court on the basis that no duty to inform existed.

“I agree with BMO Nesbitt Burns, that to impose such an obligation would be an absolute breach of that individual’s privacy and their right to dispose of assets as they choose,” the motion judge said in the original decision.

On appeal, the widow argued that, although their accounts were not jointly owned, the firm had disclosed performance information about the accounts to both of them, and that as an investment advisor the firm had a duty to inform her about all matters relevant to her portfolio.

However, the appeal court again sided with the firm, saying there’s no duty to disclose.

“[T]he sharing of information about investment performance, with consent of the owners of each investment account, does not create a duty on the financial institution to disclose account changes made by one owner, to the other owner,” the decision said.

“Mr. Fair did not consent to BMO Nesbitt disclosing the change to the appellant,” it said in dismissing the appeal.

James Langton

James is a senior reporter for Advisor.ca and its sister publication, Investment Executive. He has been reporting on regulation, securities law, industry news and more since 1994.