Nicolette Holovaci

The appellant, Anne Elizabeth Fair, appealed the dismissal of her action against BMO Nesbitt Burns Inc. and the estate/children of her deceased husband, Lloyd Fielder Fair.

She alleged BMO Nesbitt had a duty to inform her of a change in beneficiary designations on her husband's investment accounts (from her to his children) and sought a constructive trust over the proceeds based on an alleged agreement with her husband.

The Court of Appeal dismissed the appeal, finding no duty on BMO Nesbitt to disclose beneficiary changes to a third party and insufficient evidence to establish a clear agreement with the deceased husband to maintain beneficiary designations, distinguishing the case from Moore v. Sweet.

In a civil action alleging negligent investment advice and related wrongs, the moving defendants sought directions under Rule 34.14 of the Rules of Civil Procedure following an adjourned examination for discovery of the plaintiff.

They argued that the examination had been improperly interrupted by excessive objections and instructions not to answer by opposing counsel.

After reviewing the transcript, the court found that although a number of objections had been raised, they did not amount to an abuse of the discovery process.

While the court criticized two instances of uncivil and sarcastic conduct by counsel during the examination, it concluded the examination had not been rendered futile and could continue rather than being restarted.

Costs were awarded to the moving defendants on a partial indemnity basis.