Webb v. TD, 2016 ONSC 7153
CITATION: Webb v. TD, 2016 ONSC 7153
COURT FILE NO.: 26379/14
DATE: 2016-11-17
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ROBERT WEBB
Plaintiff
– and –
TD WATERHOUSE CANADA INC. and TD WATERHOUSE FINANCIAL PLANNING
Defendants
Robert MacRae, for the Plaintiff
Brad Moore, for the Defendants
HEARD: August 30, 2016
rasaiah, j.
reasons for decision
OVERVIEW
[1] The Defendant TD Waterhouse Canada Inc. is an incorporated registered investment dealer, member CIPF, and a subsidiary of the Toronto Dominion Bank. The Defendant TD Waterhouse Financial Planning is an unincorporated division of TD Waterhouse Canada Inc. that provides financial planning services.
[2] The Plaintiff is a former employee of the Toronto Dominion Bank, who on termination from his employment with the bank, after a re-organization, elected out of various options available to him, to take the commuted value of his pension and invest it in a retirement investment account with the Defendants. The investment retirement plan for these funds he was expecting to achieve unfortunately was not realized, and, in fact, the Plaintiff unfortunately found himself in a position where a substantial portion of the funds were going to be exhausted long before anticipated.
[3] The statement of claim seeks damages against the Defendants based on actions of the Defendants and its employees which the Plaintiff says caused him to make the aforesaid election and suffer the losses he claimed he has incurred thereafter.
[4] The Plaintiff’s claims are based in misrepresentations, undue influence, and negligence of the Defendants’ employee, Ms. Myers, for which the Plaintiff claims the Defendants are liable. In addition, the Plaintiff makes a claim against the Defendants for failure to provide or require the Plaintiff to obtain independent legal advice at the time he was required to decide how best to deal with his pension after he was terminated from his employment with the Toronto Dominion Bank. He claims that they had an obligation because they were (are) wholly owned subsidiaries of the Toronto Dominion bank and operated out the same facilities as Toronto Dominion Bank. The claims are framed in presumed undue influence/conflict of interest.
[5] The Defendants, by motion, seek summary judgment and dismissal of the Plaintiff’s action in its entirety. The Defendants argue that: the action was commenced after the passing of the applicable limitation period for all of the claims made and; that based on the evidence on which the court can make a fair and just adjudication, there is no genuine issue requiring a trial of the limitation defence.
[6] The Plaintiff asked that the motion be dismissed with costs.
[7] The Defendants filed a motion record, which included but was not limited to a copy of the transcript of the examination for discovery of the Plaintiff; a supplementary motion record; factum and book of authorities. The Plaintiff filed a factum; book of authorities; and the transcript of the examination for discovery of Ms. Kim Myers. The Plaintiff did not file an affidavit.
LAW
[8] Section 4 of the Limitations Act, 2002, S.O. 2002, Chapter 24, Schedule B, (“Limitations Act”) sets out the basic limitation period. It states:
- Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.
[9] Section 5 of the Limitations Act states:
Discovery
- (1) A claim is discovered on the earlier of,
(a) the day on which the person with the claim first knew,
(i) that the injury, loss or damage had occurred,
(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,
(iii) that the act or omission was that of the person against whom the claim is made, and
(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and
(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).
Presumption
(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.
[10] In Fennell v. Deol, 2016 ONCA 249 at paragraphs 20 and 21, the court summarized the following:
The basic two-year limitation period begins to run on the day the claim was discovered. The date of discovery is the earlier of the two dates under s. 5(1) – when (a) the person with the claim had knowledge of, or (b) a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have had knowledge of, the matters referred to in s. 5(1)(a)(i) to (iv). If either of these dates is more than two years before the claim was issued, the claim is statute-barred.
Section 5(1)(a) considers when the person with the claim had actual knowledge of the material facts underlying the claim. Unless the contrary is proved, under s. 5(2), the person is presumed to have known of the matters in s. 5(1)(a)(i) through (iv) on the date of the events giving rise to the claim.
[11] Based on the above, central to the application of the “discoverability rule” is when the Plaintiff acquired or ought to have reasonably acquired knowledge of the facts on which his claim is based.
[12] The test under subsection 5(1)(a) of the Limitations Act is a subjective test. It requires a determination of when the claimant had actual knowledge of the material facts constituting the cause of action. The focus is on the Plaintiff’s actual knowledge of the facts enumerated under the provision: Ferrara v. Lorenzetti, Wolfe Barristers and Solicitors, 2012 ONCA 851, paragraph 33.
[13] The test under subsection 5(1)(b) of the Limitations Act is an objective test. It requires a determination of when a reasonable person in the claimant's position would have been alerted to the elements of the claim: Ferrara v. Lorenzetti, Wolfe Barristers and Solicitors, 2012 ONCA 851, paragraph 33. It requires considering the "abilities and... circumstances" of the person with the claim and then to decide whether that person "ought to have known of the matters" giving rise to that claim: Ontario Flue-Cured Tobacco Growers Marketing Board v. Rothmans, Benson & Hedges, Inc. 2016 CarswellOnt 10558, 2016 ONSC 3939, 269 A.C.W.S. (3d) 52, (Div. Ct.) paragraph 51.
[14] In Arcari v. Dawson, 2016 ONCA 715 at paragraph 9, the court wrote:
When a reasonable person with the abilities and in the circumstances of the person with the claim ought to have known of the matters described in clause 5(1)(a) is a question of fact: Lima v. Moya, 2015 ONSC 324, at para. 76, aff’d on appeal 2015 ONSC 3605 (Div. Ct.), at para. 19.
[15] In Fennell v. Deol, 2016 ONCA 249 at paragraphs 23 and 24, the court stated:
Due diligence is not referred to in the Limitations Act, 2002. It is, however, a principle that underlies and informs limitation periods, through s. 5(1)(b). As Hourigan J.A. noted in Longo v. MacLaren Art Centre Inc., 2014 ONCA 526, 323 O.A.C. 246, at para. 42, a plaintiff is required to act with due diligence in determining if he has a claim, and a limitation period is not tolled while a plaintiff sits idle and takes no steps to investigate the matters referred to in s. 5(1)(a).
Due diligence is part of the evaluation of s. 5(1)(b). In deciding when a person in the plaintiff’s circumstances and with his abilities ought reasonably to have discovered the elements of the claim, it is relevant to consider what reasonable steps the plaintiff ought to have taken. Again, whether a party acts with due diligence is a relevant consideration, but it is not a separate basis for determining whether a limitation period has expired.
[16] In analyzing the extent of knowledge of the material facts, in Brown v. Wahl, 2015 ONCA 778, the Court of Appeal refers to Lawless v. Anderson, 2011 ONCA 102:
… The question to be posed is whether the prospective plaintiff knows enough facts on which to base an allegation of negligence against the defendant. If the plaintiff does, then the claim has been “discovered”, and the limitation begins to run: see Soper v. Southcott (1998), 1998 CanLII 5359 (ON CA), 39 O.R. (3d) 737 (C.A.) and McSween v. Louis (2000), 2000 CanLII 5744 (ON CA), 132 O.A.C. 304 (C.A.).
[17] The evidentiary burden is on the Plaintiff to rebut the presumption set by section 5(2) of the Limitations Act: Unegbu v. WFG Securities of Canada Inc., 2015 ONSC 6408 aff’d 2016 ONCA 501.
[18] In Nicholas v. McCarthy Tétrault, 2008 CanLII 54974 (ONSC) at para. 27 aff’d 2009 ONCA 692, the court set out:
The circumstance that a potential claimant may not appreciate the legal significance of the facts does not postpone the commencement of the limitation period if he or she knows or ought to know the existence of the material facts, which is to say the constitute elements of his or her cause of action. Error or ignorance of the law or legal consequences of the facts does not postpone the running of the limitation period: Coutanche v. Napoleon Delicatessen (2004), 2004 CanLII 10091 (ON CA), 72 O.R. (3d) 122 (C.A.); Calgar v. Moore, [2005] O.J. No. 4606 (S.C.J.); Milbury v. Nova Scotia(Attorney General) (2007), 2007 NSCA 52, 283 D.L.R. (4th) 449 (N.S.C.A.); Hill v. South Alberta Land Registration District (1993), 1993 ABCA 75, 100 D.L.R. (4th) 331 (Alta. C.A.).
[19] In Unegbu v. WFG Securities of Canada Inc., 2015 ONSC 6408 aff’d 2016 ONCA 501, the plaintiff commenced a claim for negligence, misrepresentation, breach of fiduciary duty and deceit, with respect to an investment arrangement she entered into and that arrangement failing. In this case, the plaintiff argued that she was unaware that a proceeding would be an appropriate means to seek to remedy her losses. She also argued that her motivations and actions impacted the analysis and in particular that she attempted to limit her losses being incurred through the failing investment. The court at paras. 22 and 23, set out:
The facts of this case could hardly be more different. On the plaintiff’s own evidence, she believed the defendants had committed a wrong. There was no need for any advice of a technical nature to inform her that she had a cause of action. Even if I were to accept that the plaintiff did not realise that she could launch legal proceedings to recover her losses, the limitation period commences on the day upon which a reasonable person with the plaintiff’s abilities and in her circumstances ought to have known of her remedy through a court action. I find that any reasonable person in the plaintiff’s position ought to have known by May 2009, at the very latest, that a cause of action existed within the meaning of s. 5 of the Act. For the same reason, the plaintiff cannot rely on her ignorance of the law to postpone the commencement of the limitation period: see Tétrault, at paras. 27-28; and Boyce v. Toronto (City) Police Services Board, 2011 ONSC 53, at paras. 23, 37.
The plaintiff further argued that her motivations and actions impact the analysis in identifying the start date of the limitation period. She asserts that, from the outset, she attempted to limit the losses being incurred through the failing investments rather than recover her money. A reasonable person in her position therefore would not have turned her mind to commencing an action to recover the monies. I reject this argument for three reasons. First, it is undermined by the plaintiff’s own evidence at the discovery hearing that when she called Ashebiode, in late 2008, she did so because she wanted her money back. Secondly, there was no bar to the plaintiff from seeking to limit her losses and recover the lost funds by commencing a legal action, something that a reasonable person in her circumstances ought to have known and considered. Finally, the plaintiff’s motivation for delaying the commencement of legal proceedings is irrelevant in the context of the limitation period.
[20] The principle of discoverability is designed to avoid the injustice of precluding an action or claim before a Plaintiff is in a position to commence proceedings, a Plaintiff who through no lack of diligence is unaware of his cause of action prior to the natural expiry of the limitation period (Peixeiro v. Haberman, 1997 CanLII 325 (SCC), Kamloops (City of) v. Nielsen, 1984 CanLII 21 (SCC) and Central Trust Co. v. Rafuse, 1986 CanLII 29 (SCC).
[21] Rule 20.01(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, (“Rules”) provides that “[a] defendant may, after delivering a statement of defence, move with supporting affidavit material or other evidence for summary judgment dismissing all or part of the claim in the statement of claim.”
[22] Rule 20.02(2) of the Rules provides that in response to affidavit material or other evidence supporting a motion for summary judgment, a responding party may not rest solely on the allegations or denials in the party’s pleadings, but must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial.
[23] Rule 20.04(2)(a) of the Rules states that the court shall grant summary judgment if “the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.”
[24] Rule 20.04(2.1) of the Rules states that in determining under clause (2) whether there is a genuine issue requiring a trial, the judge may exercise any of the following powers:
Weighing the evidence.
Evaluating the credibility of a deponent.
Drawing any reasonable inference from the evidence.
[25] The Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, at para. 4 has held that a trial is not required where:
A summary judgment motion can achieve a fair and just adjudication, if it provides a process that allows the judge to make the necessary findings of fact, apply the law to those facts, and is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial.
[26] In Liu v. Silver, 2010 ONSC 2218, the court reviewed the broader authority to weigh evidence, evaluate the credibility of witnesses, and/or draw any reasonable inference from the evidence in accordance with the Rules. The court at paragraph 13 stated:
Where a defendant moves for summary judgment in relation to a statutory limitation period, to succeed in the motion, the plaintiff must, through an affidavit, adduce evidence of material facts that require a trial to assess credibility, weigh evidence and draw factual inferences. If the defendant satisfies the court there are no issues of fact required to be tried, the defendant will succeed in obtaining summary judgment. [Soper v. Southcott, 1998 CanLII 5359 (ON CA), [1998] O.J. No. 2799 (Ont. C.A.) at para. 14]. So to avoid summary judgment, the plaintiff has the onus to satisfy the Court there are material facts to be tried as to when the cause of action arose and they must demonstrate there is a real chance of success at a trial of the issue.
[27] Summary judgment is available on the limitation defence: Home Savings & Loan Corp. v. Linton, (1999) 1999 CanLII 1832 (ON CA), 120 OAC 316 (OCA) at para. 6; and Soper v. Southcott, 1998 CanLII 5359 (ON CA), [1998] O.J. No. 2799 (Ont. C.A.) at para. 14.
[28] Ferrara v. Lorenzetti, 2012 ONCA 851 at paras. 29 and 30, confirms that with the court’s expanded rights to assess evidence under Rule 20, the court can grant summary judgment when discoverability is a central issue. To successfully defend a motion for summary judgment, the responding party has to adduce evidence of material facts showing a genuine issue to be tried concerning the commencement of the limitation period. They have to put forward their best evidence capable of demonstrating that a trial is required in order to determine the discoverability date.
[29] In Ferrara v. Lorenzetti, 2012 ONCA 851 at paras. 49 to 51, the court wrote:
In Combined Air, at para. 56, this court reinforced the warning previously expressed in Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1996), 1996 CanLII 7979 (ON SC), 28 O.R. (3d) 423, [1996] O.J. No. 1568 (Gen. Div.), at p. 434 O.R., that a party is not entitled to sit back and rely on the possibility that more favourable facts may develop at trial. Each side must advance their best case and put forward the evidence on which they rely with respect to the material issues to be tried. The court is entitled to assume that the parties have met this obligation: 1061590 Ontario Ltd. v. Ontario Jockey Club (1995), 1995 CanLII 1686 (ON CA), 21 O.R. (3d) 547, [1995] O.J. No. 132 (C.A.) and Dawson v. Rexcraft Storage and Warehouse Inc., 1998 CanLII 4831 (ON CA), [1998] O.J. No. 3240, 164 D.L.R. (4th) 257 (C.A.), at p. 265 D.L.R.
In my view, a bald assertion, even one that remains unchallenged, made in circumstances such as this where supporting evidence must be presumed to be readily available, cannot defeat a motion for summary judgment. The parties must lead evidence that the court can weigh and from which it can draw inferences.
Here, the respondents had the burden of "leading trump or risk losing". They failed to "lead trump" -- evidence from their lawyers -- and lost. [page 413]
[30] In the case of Mahoney v. Sokoloff, 2015 ONCA 390, an appeal before the Ontario Court of Appeal, the appellants complained that, in the summary judgment materials, the respondents failed to challenge specifically the appellants’ FLA-based claims for damages. The appellants submitted that in those circumstances, they were not obliged to lead evidence of these damages on the summary judgment motion. The Court disagreed and stated at paragraph 5:
[5] The appellants’ submission, in our view, misses the point. Apart from the matter of the respondents’ explanation for not advancing these FLA claims from the outset, the appellants were obliged in responding to the motion for summary judgment to put their best foot forward in respect of all their claims and to lead some evidence of the foundation for the brothers’ claimed losses under the FLA. They did not do so. As a result, on this record, the motion judge did not err in concluding that no genuine issue for trial arose regarding these claims.
SCOPE OF MOTION
[31] The Plaintiff in argument suggested that the Defendants’ motion argument was limited because not every claim was specifically addressed in the Defendants’ factum or motion. I do not give effect to this argument. First, it is clear that the Defendants were asking for the Plaintiff’s claim to be dismissed in its entirety, not parts of it. In such a case, on the law as set out above, the Plaintiff must respond, with his best foot forward in respect of all of his claims whether or not an issue is raised or dealt with in the moving party’s materials. Further, I note that the Plaintiff chose to address all of the claims in his factum filed, and provided authorities on them in the preparation for the motion. The Plaintiff elected not to file an affidavit on any of the issues in question and chose to rely on other evidence filed.
ANALYSIS
Introduction
[32] The Rules clearly permit the Defendants to bring the summary judgment motion.
[33] There is no dispute that the claims made in this case are subject to the basic two-year limitation period.
[34] I am satisfied there is no genuine issue requiring a trial with respect to the limitation defence and that I am in a position to make fair findings and grant summary judgment on the limitation issue having regard for the evidence filed on this motion, the Rules, and the applicable law. I am not satisfied that there are material facts arising that require a trial to assess credibility, weigh evidence or draw factual inferences on this defence. The Plaintiff did not establish in affidavit material or on the other evidence filed, specific facts demonstrating that there is a genuine issue requiring a trial on the foregoing.
[35] I find that the Plaintiff knew more than enough facts that he had suffered loss, that he believed the loss was caused by or contributed to by an act or omission on the part of the Defendants and/or Ms. Myers that he claimed in respect to: negligence, undue influence, inaccurate calculations, negligent advice and incorrect information, misrepresentations, omissions; errors; failed monitoring; failure to ensure independent legal advice, conflict, and liability of the Defendants for her actions.
[36] I am further satisfied that a reasonable person with the abilities and in the circumstances of this particular Plaintiff ought to have known that a loss had been suffered, that the loss may have been caused by or contributed to by an act or omission on the part of the Defendants and/or Ms. Myers, and further, that a proceeding would be an appropriate means to seek to remedy the losses.
[37] I find that he had this knowledge or that a reasonable person with the abilities and in the circumstances of the Plaintiff ought to have known the foregoing as early as 2009 and certainly in 2010 and he did not prove the contrary. I find there was a lack of diligence on his part and he took no steps to investigate his concerns when he could have.
[38] The Plaintiff did not cause his statement of claim to be issued until January 2014 which is beyond the two-year limitation period, and as such, based on my findings, is statute barred.
[39] I do not agree that a presumption of undue influence arises in this case based on the law provided to me by the Plaintiff: Lewis v. Central Credit Union Ltd. 2012 PECA 9 (“Lewis”). The Plaintiff did not provide case law particular or similar to this fact situation and advised he was unable to locate any.
[40] Should the Defendant and Plaintiff’s relationship in this case attract a presumption of undue influence? My view is that it does not, and there are no facts that raise a genuine issue on this issue requiring a trial.
[41] In accordance with the Lewis case, the presumption of undue influence is about special relationships; a relationship of trust and confidence; a relationship of dependency which can be subject to abuse and pressure where there is a weaker party and a stronger party. There exists a degree of influence that undermines the capacity of the influenced party for independent action. There is a degree of vulnerability of the influenced party and a concern to address transactions which are disadvantageous on their face to the influenced party but advantageous to the influencer. The principle is to save one from being victimized by another. The Plaintiff must show a relationship in which the law considers it fair to presume undue influence. Determining presumption of undue influence is a question of fact.
[42] Contrary to that argued by the Plaintiff, the Plaintiff was questioned substantially about how it came about that he decided to invest, and why, what he knew, and the relationship between the parties. He was also asked about legal advice. There is other evidence to establish the foregoing. There are also a number of available reasonable inferences given the facts of this case. Those facts are examined below. They do not, in my view, establish a relationship in which it would be fair to presume undue influence in this case.
[43] The evidence supports that the Plaintiff understood the nature of the transaction, the idea that he was taking his pension money and investing it himself in his own investment. He understood that there was no guarantee with his choice. His own words were that while she was convincing with the rates she was presenting, Ms. Myers stopped short of recommending it.
[44] The transaction by the 2005 calculator had the potential of advantage to him. It was not on its face disadvantageous to him and advantageous to the bank to attract the presumption. The Plaintiff did not establish that this transaction had it been followed would not have been advantageous to him. In fact, there is evidence that he does not deny, that he, not Ms. Myers, veered off the 2005 plan, which Ms. Myers said affected the investment; the Plaintiff panicked and jumped in and out of investments.
[45] That being said, if I am wrong about the application of this doctrine to this case, I am of the view that there is no genuine issue requiring a trial as to whether or not the presumption is rebutted.
[46] The Plaintiff relies heavily on a requirement of independent legal advice. In the Lewis case provided by the Plaintiff, it is set out that independent legal advice is not the only means to rebutting the presumption. It can be rebutted by establishing the action was the result of free exercise of independent will. The evidence supports that the Plaintiff entered this transaction freely and by independent will. He did not establish that he was vulnerable or that Ms. Myers knew that or ought to have known that. He saw her a little over a month after his termination. Ms. Myers stated she did not know anything about the Plaintiff’s termination. She understood him to be retiring from the bank which is what he told her.
[47] As for any argument as it relates to the Plaintiff’s wife, she is not a party in this case.
[48] Lastly, the Plaintiff provided a case regarding conflict of interest. The Plaintiff relied on Brauns, Re 2013 CarswellNat 4397, a decision of the Board of Mutual Fund Dealers Association of Canada (“MDFA”). The Defendants argue that this case does not apply to the case at hand. I agree.
[49] The relevant allegations in the Brauns case were that the Respondent engaged or continued to engage in personal financial dealings with three clients, namely a $650,000 loan he received from client #1 as loans to or investments in a company incorporated and controlled by the Respondent; $127,000 he received from client #1 as a personal loan; $10,000 that he borrowed from client #2 that he failed to repay; and $150,000 he obtained from client #3 which he failed to repay thereby giving rise to conflicts of interest between the interests of the Respondent and the interests of the clients, which the Respondent failed to ensure were addressed by the exercise of responsible business judgment influenced only by the best interests of the clients, contrary to MFDA rules. Further, it was alleged that the Respondent failed to ensure that a conflict of interest between his interests and those of the clients was addressed by the exercise of responsible business judgment when the Respondent accepted and acted upon general powers of attorney or other similar authorizations from clients #1 and #2 contrary to MFDA rules. The case dealt with personal conflicts of interest.
[50] Even if the case at bar could be said to be a case about breach of the rules by an advisor related to conflict of interest, I considered what the Plaintiff actually knew or a reasonable person with his abilities and in his circumstances ought to have known about Ms. Myers’ failure to exercise responsible business judgment to take reasonable care and due diligence as necessary in the circumstances to address any conflict in the best interests of the Plaintiff.
[51] In reviewing the evidence, I am of the view that there is no genuine issue requiring a trial on this issue and it is statute barred.
[52] In the case at bar, the Plaintiff knew he suffered loss as early as 2009 and certainly in 2010. He was of the clear view it was at the hands of Ms. Myers. It is reasonable to infer that the Plaintiff, as a former bank manager and 29 year Toronto Dominion Bank employee, knew the connection between the corporations and any material facts related to conflict of interest long before he saw Ms. Myers in 2005. They worked out of the same business location. He managed employees for many years in similar roles to Ms. Myers in his work history. He had significant commercial management experience. He personally trained for and received certification for selling mutual funds. He knew who Ms. Myer’s was, who she worked for, what her job was, and how she stood to gain from the transaction (which was not proved to be outside the regular commission, bonuses and fees an advisor would earn unlike the Braun case), and he knew this all between 2003 and 2005. He clearly knew his pension was with the Toronto Dominion Bank before he saw her and that she did not send him for independent legal advice or turn him away in 2005.
[53] The details of the evidence and facts I considered in coming to the above conclusions are set out below.
Who is the Plaintiff (abilities and circumstances)?
[54] The Plaintiff has a bachelor of science.
[55] He started out in banking in 1976 in Sudbury, Ontario as a management trainee.
[56] Thereafter, the Plaintiff was posted to Barrie, Ontario as a supervisor of tellers for one year.
[57] Following Barrie, the Plaintiff became administration manager in Bowmansville, Ontario for 15 months (managing 15 people).
[58] Thereafter, the Plaintiff went back to Barrie to take an administration manager position , where he remained for two years, looking after all branch administration, operations, marketing and human resources (managing 35 people).
[59] The Plaintiff then moved to Ottawa, Ontario to take an administration manager position (managing 85 people) where he remained for 13 years. The Plaintiff was required to be familiar with the kinds of products and services available at each branch that he was involved in developing and coaching staff on. He received a number of promotions while at the Ottawa branch. He was promoted to commercial account manager, and then to the manager of commercial services overseeing a group of commercial account managers managing business accounts.
[60] After Ottawa, the Plaintiff moved to Thornbury to take a position as the branch manager where he remained for six years. He was responsible for everything in the branch. He said mutual funds were just starting to “get big” at this point in time. He was required to know general information about the various products and services offered at the branch. He had a certain level of expertise in guaranteed investment certificates and bonds, however, he would direct a customer to the employee in the bank who serviced the product. He needed to know what the service was and what it was designed to do and the array of products available in each area on a general level. He had to take courses to try to achieve a good overall knowledge as to what a mutual fund was and the processes that went behind selling them. He completed this training through the bank through the Institute of Canadian Bankers. The Plaintiff obtained his certification to sell mutual funds when he was the commercial manager in Ottawa. Even though he wasn’t selling mutual funds, he was supervising people who were, and the bank wanted everyone to be certified.
[61] After Thornbury, the Plaintiff moved to Sault Ste. Marie to become the branch manager. He was initially responsible for all the branch employees but the Plaintiff stated that after four years as branch manager, he became responsible only for the retail side. He stated that the commercial side broke off and was managed outside of Sault Ste. Marie.
[62] In respect of calculators, the Plaintiff stated that financial calculators for projecting future income streams and helping people understand when they could retire were not being used within the branches until financial planning Defendants TD Waterhouse came into branches around 1989 or 1990. The Plaintiff stated that it first started as TD Evergreen but folded to TD Waterhouse. There were financial advisors in the branch for investments below the $400,000 threshold and financial planners with TD Waterhouse for investments above the $400,000 threshold up to one million dollars. Above one million dollars, there was private investment advice and counselling.
[63] The Plaintiff had been responsible for the financial advisors in the branch with the portfolios below the $400,000 threshold. The financial advisors had some tools to use with clients to go through clients’ investment objectives to establish where their investment in mutual funds should be placed. The model would let them know all the risk, and timelines. The Plaintiff stated that very little tools, if any, for determining what a person required for retirement were used by the branch financial advisors as this was where TD Waterhouse would come in. He could not recall any other tools used.
[64] The evidence sets out that in respect of his investment background, the first personal investment the Plaintiff opened was a spousal RRSP in and around 1995 when he was the branch manager at Thornbury, starting off with mainly GICs, but over the course of time changing to mutual funds. The value of the account was approximately $30,000 which was built up through contributions and increases within the investment. Monthly statements were received by him for the account. He was familiar with the format of the statement and understanding the information in the statement. A retirement planning number was never worked out for him with respect to this investment, only the models for risk were applied over the course of financial advice he received in connection with this investment. Retirement planning was not in the picture at this time. This particular account experienced gains and losses from time to time. On examination for discovery, the Plaintiff recalled a period where the market fluctuated downward quite a bit.
[65] When the Plaintiff completed his application to open the investment accounts with the Defendants, he indicated that he had 15 years’ experience with stocks, ten years with bonds and 20 years with mutual funds, and stated that this was accurate in a general way when asked about this particular information that was in his application. This application was completed by Ms. Myers in the presence of the Plaintiff. She asked him questions and then recorded his answers. He stated the document reflected the information he provided.
[66] The Plaintiff on discovery stated that he paid attention to the market, probably looking at it every couple of weeks to see where the market was going. He based his decisions regarding the directions of his investments or the asset mix, based on what he was seeing in the market, and this was part of his ongoing monitoring of it.
[67] The Plaintiff, when asked, described his knowledge of investing and his sophistication level in terms of markets and investments as a four out of ten, on a scale of one being low and ten being high, when he started investing (1995) and that it grew a certain degree by 2005, maybe to a five out of ten. He agreed that he understood the concept that some investments that carried a higher growth opportunity might also carry a higher risk of loss. He also understood that some investments were safer but offered lower returns and others offered a prospect of higher returns but a much greater risk of loss.
[68] To summarize, this Plaintiff:
a. is a former bank manager with 29 years’ experience in banking;
b. has training and certification for some types of investments, including mutual funds;
c. supervised employees dealing with client investments for years;
d. knew the workings of the chain for investments and how the levels were handled at the Toronto Dominion Bank and TD Waterhouse;
e. may not have known the software and tool used by Ms. Myers, but he knew software tools were used;
f. while conceded by the Defendant was not a highly experienced investor, had investment experience;
g. was of medium sophistication in respect of investing (5 out of 10),
h. with his personal experience in having the spousal RRSP was familiar with the statements and understanding the information on them;
i. paid attention to the market regularly;
j. monitored the market; and
k. had an appreciation of market risk.
[69] As for circumstances, as set out below, it is apparent that his investment with the Defendants was failing significantly from what he expected, to the tune of thousands of dollars.
[70] Other than trying to rework his investment with new numbers over the years, he took no other steps to address the losses he said he knew he was suffering.
[71] It is reasonable to infer that someone with his abilities and in his circumstances would be aware of the available avenues for complaints and/or expressing concerns if one had a complaint or concern regarding the financial institution and/or an advisor.
[72] The Plaintiff argued it would be difficult for an average person to find at the first sign of difficulty that a customer is required to put themselves to an election as to whether to deal with the institution or sue immediately.
[73] In this case, in my view, on these facts, I would not have classified the Plaintiff as an average person or classified the issues that he faced as “first signs of difficulty” and I give no effect to this argument. There were numerous signs which were noted on more than one occasion, and the Plaintiff knew he would not recover to the point of the initial projected plan of 2005.
The Beginning: Options offered/Nature of the Transactions
[74] There were six main options for the Plaintiff to choose from which were outlined in writing for him (“options statement”). The options statement was provided to him by the Pension Fund Society of Toronto Dominion Bank (“pension fund”). A copy of the options statement was filed in the Defendants supplementary motion record.
[75] The options statement very clearly sets out what all of the options were. There were two main categories in these options: leave the money with the pension fund or take it out and invest it.
[76] The options statement was in the Plaintiff’s possession at all times and available for him to look at all material times while making his decision as to which option he was going to elect prior to electing.
[77] Similarly, he had the options statement to reflect back on over the course of time of his investment with the Defendants and any issues that were arising during that time. In my view, it would have been reasonable to expect him to do so. He did not.
First Steps in Deciding What to Do
[78] The Plaintiff stated he did not know he could commute a pension or “even really know what it was” until he started asking around. Based on this comment, the Plaintiff was capable of, thought about, had opportunity to, and did make inquiries outside of the Defendants and Ms. Myers.
[79] In particular, the evidence disclosed that the Plaintiff spoke to another former Toronto Dominion Bank employee who was approaching retirement prior to seeing Ms. Myers.
[80] The Plaintiff also made inquiries of the pension fund. The options document included a page beyond the six main options. This page was generated as a result of the Plaintiff’s conversations with the pension fund. The Plaintiff had made requests for further information to assist him in the planning process.
[81] The Plaintiff on examination for discovery agreed that he reviewed the various options very carefully and also had various discussions with his wife about them. He and his wife discussed the amounts and what they should do. At one point in reviewing the options, he stated he was convinced to take the option that would have him electing to leave his pension with the pension fund and take a deferred pension that would commence November 1, 2015, at which time he would be 62 years of age. This option would pay out $41,896.36 annually for his lifetime and thereafter a 60 percent benefit, $25,137.82 annually, to his wife, should she survive him.
[82] The Plaintiff, according to the options document filed, had 90 days from the date on the options statement to decide what he wanted to do. The options statement cover letter is dated April 25, 2005. The options statement is dated April 25, 2005.
[83] By the pension benefit information documents filed, in the letter dated April 25, 2005, the Plaintiff was advised that should he have any questions, to please call the Pension Administrator at the telephone number set out on the said letter.
[84] Contrary to the statement in his factum, the Plaintiff had time and had the ability to investigate his options further than what he had but he chose not to. He did not establish that he was required to immediately make a decision or that there was any kind of urgency surrounding him at the time that would have affected his decision making.
[85] At the time of making his investment with the Defendants the Plaintiff did not consider getting independent legal advice. There was no evidence to suggest that Ms. Myers recommended independent legal advice or even thought to.
[86] When reviewing the options, the Plaintiff did see and was aware that some of the options, if selected, would require him to provide a certificate of independent legal advice and a written consent from his spouse. This was with respect to the options under which the Plaintiff would elect for a higher annual pension and lower than 60% survivor benefit to his spouse.
[87] The Plaintiff read the options statement very carefully.
[88] The Plaintiff gave no explanation that he was incapable of obtaining, or that anyone interfered with his ability to obtain legal advice.
[89] In 2005, the Plaintiff was otherwise aware of the availability of legal advice. The Plaintiff’s evidence was that when he was terminated he had the opportunity to take the issue of his termination to “a legal person” but he did not because he “did not feel that would go anywhere”. He felt the numbers were fair. He actually negotiated a higher amount than what was offered to him on his own without legal assistance, which goes against his argument of being vulnerable at the time.
[90] In 2005, it is clear that the Plaintiff understood he was making a decision between leaving the pension in the pension fund and electing to transfer it out to a registered retirement plan to try to better what leaving the pension in the pension fund would provide, not only for increased annual income, but estate and access flexibility.
[91] Further, it is reasonable to infer given his background that the Plaintiff would have known that investing with the Defendants had the potential of being advantageous to both himself and the Defendants, namely that bonuses, commissions and fees would be collected off of the money he invested if he chose that option. He also knew there was risk in the markets and no guarantee.
Deciding To See Ms. Myers/Influence
[92] The Plaintiff decided to make an appointment with and meet with the Defendants’ employee, financial advisor, Ms. Myers. This was a little more than a month after he was told he was being terminated.
[93] Again, it is reasonable to infer that as a former branch manager of Toronto Dominion Bank and former 29 year employee that the Plaintiff was aware that the Defendants and his former employer were affiliated and that he knew this well before he decided to see Ms. Myers in 2005.
[94] The Defendants ran a financial planning office out of the same location as the Sault Ste. Marie bank branch that the Plaintiff was the branch manager of. The Plaintiff, however, did not manage the Defendants’ financial planning office. This office was managed by the Defendants by management outside of Sault Ste. Marie.
[95] Ms. Myers was known to the Plaintiff.
[96] In the statement of claim, the Plaintiff stated that as bank manager he forwarded portfolios to Ms. Myers and he had extensive experience with her, her competency and her abilities, and as a result was encouraged to utilize her services following his termination by the Toronto Dominion Bank. This statement expresses that he used his own personal knowledge in his decision to utilize Ms. Myers’ services.
[97] On examination for discovery, the Plaintiff agreed that the idea to see Ms. Myers came to him from another Toronto Dominion Bank employee who was approaching retirement.
[98] Ms. Myers stated that she started work at the financial planning office in 2003. From 2003 to the date the Plaintiff ceased working, they saw each other daily at work.
[99] There was no evidence of Ms. Myers actively pursuing the Plaintiff to go to see her for advice. Ms. Myers stated that the Plaintiff called her for a meeting because he had received his package and needed some information, some calculators.
The Initial Appointment with Ms. Myers
[100] The appointment to see Ms. Myers was set by the Plaintiff for April 27, 2005. The Plaintiff attended this initial appointment with his wife.
[101] The Plaintiff claimed that as a result of discussions and printed information he received from Ms. Myers at this appointment, he was convinced by her to elect the option of withdrawing his commuted value out of the pension fund, and to invest it with the Defendants. He stated that he was told by Ms. Myers that, upon retirement, by doing this, he would receive an annual income of $43,032.44 per year, and that he would still have $245,406.76 remaining in the investment upon reaching age 80. He described Ms. Myers as being very convincing that the numbers presented in the printed information were correct. The Plaintiff, however, was not able to provide many details of the conversation because so much time had passed.
[102] The Plaintiff stated more than once that he could not recall specifics, stating that ten years (ago) is a long time to remember specifics. When asked if he had a general recollection, he said “no, I don’t. I can’t tell you anything more than that.”
[103] The Plaintiff stated that he left the meeting with an understanding that, and was provided with documents from Ms. Myers that, the commuted value of his pension would provide him with an annual income of $43,032.44, leaving him with another $245,000 at age 80.
[104] As to the actual investment, the Plaintiff stated that he came out of the initial meeting with Ms. Myers with an understanding that a LIF was a life income fund but not much more. He knew the rate. The Plaintiff stated “she was quite convincing on rate, even though, you know, she’s stopping short of recommending. I do recall that part of it.” He knew the rate could not be guaranteed but says she was very convincing that the rate or somewhere near that rate could be attained. At the time, he himself thought the rate looked in line. While she may have been convincing on the rate, it appears quite clear from his evidence that he knew she “stopped short of recommending it” and he knew there was no guarantee. Again the document also indicated no guarantee.
[105] When asked to elaborate on how Ms. Myers was convincing, the Plaintiff stated that “well, she said, you know, this is what your pension would be and this is what you could get through this LIF.” There was nothing more that the Plaintiff could add.
[106] The Plaintiff stated that he felt he was really taken advantage of. “Nobody was there jumping up and down saying stay in the pension plan.” He stated that after he complained in 2012, that two other TD Waterhouse employees stated to him that they would have never recommended or advised him to leave the pension plan. However, when asked again how Ms. Myers strongly encouraged him to do such a thing, his answer was solely related to the provision of the numbers she provided. He also stated that he felt Ms. Myers was motivated to build her book of business and her bonuses based on a comment she allegedly made that with him and two others her portfolio was going to grow by a million dollars. She said nothing else of any pertinence to him.
[107] At the initial appointment Ms. Myers stated she understood that the Plaintiff was retiring, but had no discussions with the Plaintiff or anyone else at the bank as to why the Plaintiff was retiring. The purpose of the first meeting was to determine what the Plaintiff was looking for from her. The Plaintiff asked her for calculators pertaining to a cash option in the package he received. She had notes of the meeting. The numbers in her notes reflected numbers provided to her by the Plaintiff directly. At the meeting, they talked about the rate of return expectation from the pool of money that the Plaintiff said he was going to have; 5 to 7 percent. Her notes reflected that the Plaintiff wanted to “ensure his capital was safe”, “did not need income at that time” and that she “provided some quick concept calculations at pension”.
[108] At the time of his appointment with Ms. Myers, the Plaintiff had advised Ms. Myers that he was planning to seek employment and to continue to work. He was not intending to draw on his investments or retire until age 58.
[109] The Plaintiff did not communicate to her that he was depending on her to make his decision. Ms. Myers stated that all he wanted was the calculators to show how much income he would get if he took a certain amount of money and invested it for a certain period of time, what that pool would generate for him. In particular, she stated that he said he needed some calculators because he was exploring this other option of taking the cash and seeing how much that cash would provide for him if he went that route. He gave her numbers and amounts to work on and she ran more than one scenario with different numbers he provided.
[110] There was no evidence filed establishing that Ms. Myers directly counselled or encouraged the Plaintiff to choose to invest with the Defendants over the other pension options available to him.
The Document that the Plaintiff Relied On
[111] The document that the Plaintiff said he relied on was filed in the supplementary motion record. It was one page. It is referred to as a report within the document itself and it illustrates assumptions: $344,500 being placed in its entirety in a LIF with an annual rate of return of 7.2%; average tax rated at retirement of 25%; interest rate for LIF maximum of 6% with a starting year of 2005; starting age of 58; ending age of 80; pay out frequency being monthly; life annuity interest rate of 5%; amount per $1,000 of $14.61; male gender; remaining LIF at 80 of $245,406.76; and an annual payout of $43,032.44. There was a note on the report stating that all funds in a LIF must be transferred to a life annuity by the end of the year in which he turned 80 years of age. There was a further clear note indicating “This report has been prepared using the information you provided to TD Waterhouse Financial Planning. While every reasonable effort has been made to ensure accurate calculations, we cannot guarantee them. The information contained herein is based on certain assumptions and is for illustration purposes only”.
[112] The Plaintiff received this calculator in 2005 and there is no question about this. On its face it is potentially an advantageous transaction for the Plaintiff.
[113] Ms. Myers stated that the calculation relied on by the Plaintiff is one page of typically three pages of a calculator. She did not keep a copy. The Plaintiff was not a client when she made the calculators for him yet. She did not keep copies for unengaged clients.
[114] Ms. Myers and the Plaintiff completed the documentation for the Plaintiff to be a client at their initial meeting but at that point, Ms. Myers said that the Plaintiff was going to review the information she gave him.
[115] Ms. Myers stated that after the Plaintiff called her to say he would like to proceed, the documentation was put in place to open the account. It did appear by documentation filed that the Plaintiff and his wife attended April 28, 2016 to sign further documentation regarding the account, namely trading authorization in respect of the Plaintiff’s wife.
[116] The options document, namely the Plaintiff’s election was completed and signed by the Plaintiff April 29, 2005.
[117] The Plaintiff believed but was not sure that he took a copy of his options statement with him to meet Ms. Myers or that she had a copy of it or if he would have provided it to her. According to the Plaintiff, the meeting lasted about an hour.
[118] Ms. Myers stated that she was not provided with a copy of the options statement, and only told by the Plaintiff that he had received his package.
[119] The cover letter for the options package is dated April 25, 2005.
[120] Ms. Myers stated that at the meeting they spoke in general terms about what taking your money and managing it yourself would provide; they talked about estate reference; that his wife would get the remainder of the LIRA money versus 60 percent that the pension would pay. Ms. Myers stated that she was aware of the survivor requirements for spouses from the pension legislation that she had become familiar with as part of her required training. She was also aware of survivor requirements and the Toronto Dominion Bank pension plan because she has had other clients who were employees of the bank. Through these clients she viewed other Toronto Dominion Bank pension packages.
How the Plaintiff was Feeling at the Time
[121] The Plaintiff described feeling terrible on or around this time (the time of the appointment with Ms. Myers) as a result of having lost his job after 29 years. He had always been a “one career” person. He had no idea what he was going to do following his termination. A counsellor had been assigned to him from the Toronto area. This counsellor sat down with him simply to help him prepare his resume and to help him prepare for interviews for new jobs. There was no evidence filed that indicated Ms. Myers knew this, or could have known this or ought to have known this, or that the Plaintiff expressed or shared how he was feeling with Ms. Myers. The evidence does not establish that Ms. Myers knew anything other than the Plaintiff was retiring and considering the option of taking his pension and investing it.
Making the Decision
[122] The Plaintiff did not make a decision at the initial appointment to invest with the Defendants. This is consistent with Ms. Myers’ evidence that she did not open an account for the Plaintiff as a client on April 25, 2005. The Plaintiff himself stated that took some time to talk it over with his wife and his decision was made one or two days after. This is consistent with the dates on paperwork that was prepared following his decision.
[123] Other than the numbers on the calculator he received, the Plaintiff acknowledged that one of the considerations for electing to invest the commuted value related to estate planning. In particular, if something happened to the Plaintiff, all of the money would go to his wife, and if something happened to her, the balance would go to the estate. He understood that if he kept his pension with the pension fund that when he died 60% would go to his wife, and when she died, the funds would be gone so there would be no estate value in the pension.
After the initial investment/Things changed
[124] After the initial investment, the Plaintiff’s plans changed due to inability to find work and/or keep working until age 58. Also, it appears that different investment strategies were made at the instruction of the Plaintiff at times and against Ms. Myers advice.
[125] It took the Plaintiff a year-and-a-half to find work after his termination. He found a position as manager at the Bush Plane Museum where he stayed for three years to 2009. He was 56 in 2009.
[126] The plan, Ms. Myers stated, went way off course in 2007 when the Plaintiff cashed out of mutual funds, stayed out of the market and locked into GICs. She stated that she alerted him to the fact that his goals would not be achievable in 2007. She did not reduce any of these discussions to writing.
[127] Ms. Myers stated that at the Plaintiff’s review and every time that the Plaintiff cashed out money and/or wanted in and out of the market, she had a discussion with him about changes in the status of his portfolio. When they had these discussions she did not make specific reference to the initial meeting in 2005 but reiterated that they discussed the changes.
[128] In 2008, the Plaintiff recalls that he converted some of the funds to GICs because the market was plummeting. He stated it went down more than 40 percent.
[129] In 2009, after leaving his employment with the Bush Plane Museum, the Plaintiff decided that he was going to continue to look for work. However, he also decided that he was going to retire and start drawing on the investment funds in 2010.
[130] In 2009, the Plaintiff was exploring options for income. He started working with Ms. Myers on getting quotes for an annuity. At this point, his funds were in a LIRA.
[131] There was an email in the file which referred to a discussion occurring between Ms. Myers and the Plaintiff on or about October 2, 2009 regarding an individual who could provide the Plaintiff with information about an annuity option.
[132] At this time, in 2009, the Plaintiff himself stated that he was feeling like the plan was way off board and he agreed he was looking at alternatives at this time because he was dissatisfied with the plan as it was unfolding and added that he was trying to make some sense and good of it because he felt at that time that he had basically given away his financial future and felt that it was Ms. Myers’ fault. He felt that Ms. Myers did not even know what she was talking about, otherwise she could have explained it better. He felt she had misled him. These are his words.
[133] Ms. Myers confirmed the evidence of the Plaintiff, namely that he did not, in October of 2009, discuss with her the following: that he knew, based on the value of his account at that time, that a LIF would pay out $15,304 per year, an amount very different from the amounts discussed in 2005.
[134] In December 2009, the Plaintiff stated that his wife withdrew funds which she had placed in a high risk investment. The Plaintiff stated that this investment was made based on Ms. Myer’s advice. The fund value had gone from $7,500 to less than $2,000.
[135] On examination for discovery, the Plaintiff reviewed with counsel undated LIF payout statements. In attempting to determine the time frame during which these statements were prepared, the Plaintiff identified them as being around 2009. These documents were from the Plaintiff’s investment binder materials he had been collecting over the years after opening his investment accounts. These statements identified a pre-tax payout on the LIF at $31,884 and after-tax annual payout at $23,913, some $20,000 less than what he stated he had been promised by Ms. Myers. He believes he spoke to Ms. Myers about the numbers but he does not recall what she said. He did not take any other steps. He stated “what other steps could I take? It was sort of this is what it is”. He felt that she had misrepresented what his future income was going to look like. This was clear to him he stated at this time. He did not look at complaining about these numbers. He stated, “I was probably looking at it to say where are these numbers going to go. I don’t know. These were assumptions as well”.
[136] During discovery, the Plaintiff also looked at a document which he stated was fair to say was completed in 2008 because the CANSIM rate did not reflect the proper 2009 rate, and the first page referenced 2008. This document showed an amount remaining at age 79 of $196,268 and an annual payout of $31,856. He was unable to say what happened after he reviewed this document because he did not know the date of it but did agree that he was certainly extremely unhappy and felt Ms. Myers had misled him at the time he was looking at the document.
Withdrawing Investment Funds
[137] The Plaintiff began withdrawing from his investment sooner than anticipated in respect of the initial meeting in 2005, namely at age 56. At the initial meeting he advised Ms. Myers, and the calculator she prepared was based on a retirement age of 58.
[138] In 2010, approximately between February and May of 2010, steps were taken to transfer the Plaintiff’s LIRA funds to a LIF and RIF.
[139] On February 17th, 2010, the Plaintiff emailed Ms. Myers regarding drawing on the funds. At this time, he was taking steps to unlock the LIRA and move the funds equally into a LIF and RIF. This was done to permit more flexibility to obtain money he needed. If he had left all of it in a LIF, he believed it would not have provided enough money for him given the applicable CANSIM rate and maximum annual payouts determined thereby. There is no maximum or minimum with a RIF. At this time, he understood the operation of the LIF and RIF which he did not understand in 2005. The document he was relying on, however, from the 2005 meeting assumed the entire fund would go into a LIF. This is clear on the document to any reader and now he knows in 2010 how it was to operate.
[140] During this time frame, February of 2010, the Plaintiff met with Ms. Myers and received calculators that indicated that he was eligible for only after tax income of $7,743 from his LIF beginning in 2010, and also received a RIF payout duration for an indexed annual income of $22,000 after tax showing that it would be exhausted at age 68 and another payout duration including CPP that showed the fund would be exhausted at age 65. This is clearly far less than the 2005 plan.
[141] It is true that Ms. Myers had overlooked putting in a tax rate but both parties at discovery could easily identify after the fact just looking at the document that, zero for average tax rate had been inputted. Ms. Myers stated that the Plaintiff when reviewing these documents made no complaints to her. The Plaintiff also had possession of these documents.
[142] On examination for discovery, the Plaintiff looked at documents and notes in his handwriting and that of Ms. Myers of a breakdown of the assets in his investments as of March 2010. On these notes, the Plaintiff was trying to calculate income, namely how much income he would have on a monthly basis without taking money out of the RIF.
[143] On examination for discovery, the Plaintiff also reviewed documents dated February 19, 2010 purporting scenarios as to how the investments would look and play out over time. Around this time, the Plaintiff stated he was meeting with Ms. Myers quite often as they “were trying to get – I was trying to get things right with, you know, what kind of payout is going to be there.”
[144] The Plaintiff was attempting to achieve a scenario where he would receive $36,000 annually. He stated he looked at these documents in Ms. Myer’s office and was provided with copies. At this point, in my view, it is clear to anyone that $36,000 is far less than $43,000, a difference of $7,000 per year over 22 years (to age 80) according to his interpretation of the 2005 plan. It was in fact clear to him. He stated on discovery that he was not happy, he thought that “$43,000 was in play” and he “gave away his pension over”. At this point, just on income stream alone, if Ms. Myers was at fault, he has lost $154,000 at her hands. Further, with his planned draw, the asset capital would deplete to far less than $245,000 by age 80. I ask, how can any reasonable person not be put on high alert faced with this knowledge?
[145] The damages the Plaintiff is seeking in the statement of claim reflect a claim on the 2005 calculation, and not any agreed upon new plan or new path taken along the way and/or any damages related to any new plan or new path taken along the way.
[146] At this time in 2010, he did not bring the documents he received in 2009 or early 2010 to Ms. Myers to ask her what happened to those figures. At this time, he agreed that he knew that there was no way he was going to get $43,000 annual income. He stated at this point in time he had not yet started to draw on it and stated that “these were scenarios”, when he was asked if he was upset with Ms. Myers. He did not feel positive about these scenarios and he studied the scenarios as carefully as possible to see where they were going and that they were done properly. He felt that the documents accurately captured what he had. He did not feel that his accounts had been handled properly. He had an expectation that starting at age 58 he would have had an income of $43,000 per year for life. He agreed it was fair to say that he recognized this in 2009 and probably earlier that he was not going to be able to generate that kind of income from his invested assets. He stated that he was still trying to get there, trying to monkey around with these calculations. He also knew that he had to keep an eye on not prematurely exhausting his investments at this time. He was aware that they could have been exhausted looking at the various scenarios but stated that nothing else could be done, unless he sold his house or took money out of his house to add to the funds. This statement, in my view, speaks to an understanding of extent of loss, if his home (which was fully paid off at this point) had to be sold to replenish funds.
[147] The Plaintiff agreed it was fair to say that he followed his investments quite closely and quite diligently. He looked at his statements, watched the transactions and balances actively on a monthly basis, yet he did nothing to address his concerns related to Ms. Myers.
[148] By April or May of 2010, the Plaintiff was withdrawing the maximum from his LIF. At some point his focus consciously changed to drawing an income that he felt he should have, and not on the depletion of his capital. This was his decision, his plan.
[149] The Plaintiff noted his investments with the Defendants were depleting. He knew that his money was running out when he was questioned about his RIF statements and the declining capital values from June 2010 to February 2011. He received statements and reviewed the balances. When asked how he reconciled that in his mind, the Plaintiff stated that he felt he could not do anything about it. He stated that “it all went back to the beginning of misleading and having to forego his pension. Misleading information.” He stated he felt he could not do anything about it.
[150] The Plaintiff stated that he never went back and compared his statements with the concept calculators that had been done. Although he could have, he did not see a need for it. He knew money was coming out and he knew it meant that his money was running out. His attitude in 2010 was that he felt that he had been misled. He did not discuss this with Ms. Myers in 2010.
[151] In 2010, the Plaintiff did not ask Ms. Myers to run new calculations to analyze the withdrawal he decided to make and gave no evidence that he could not have done so. He stated he did not need that information from her. In answering why he didn’t, he stated that he knew at this time his withdrawals would cause a fairly quick depletion of the RIF (within six years) and he believed that he had run scenarios or assumptions on those numbers before that time, in early 2010. He knowingly was adopting his scenarios/his own plan generated in early 2010 and he was going to take a level of income he wanted until the RIF was depleted. This was a choice he made.
[152] More than once on discovery, the Plaintiff stated clearly that he knew in 2010 how much money was in his investments and he knew how much money he was taking.
[153] I am not satisfied on the evidence that the Plaintiff was working with Ms. Myers to address his losses that she allegedly caused, and/or that this affects the limitation period. On his own evidence, he had no discussions with her about any issue he was taking or took with her representations, performance and/or services until the last date he met with her in February of 2012.
[154] Even if the Plaintiff was doing the above, and meant to assert that he was attempting to mitigate his losses as opposed to resorting to a claim, I am of the view that he cannot use mitigation steps to delay the limitation period. He knew what his losses were and it appears clear who he thought was responsible. There was no bar to him seeking to limit/mitigate his losses while seeking to recover his lost funds through a claim. In this case, in my view, critical to this argument is the fact that the Plaintiff was very aware that he would not, even with his changed (mitigation) plans, end up with a retirement plan like the one he said he had been promised.
2005 to 2012 Other Evidence
[155] The Plaintiff stated he had a number of meetings with Ms. Myers from the date of his initial investment, namely April 2005 to February 2012, to attempt to work the investment to achieve a plan that would generate what he thought he should have had and to avoid prematurely exhausting the investment.
[156] Ms. Myers expressed that the Plaintiff was known to panic, and had a history of jumping in and out of the market.
[157] It is true that Ms. Myers did not send the Plaintiff anything in writing regarding some of her concerns and advice, but stated that she did speak to the Plaintiff about the depletion of his investment over the time frame. The evidence supports that the Plaintiff knew.
[158] In 2010, Ms. Myers asked the Plaintiff if he really needed to take so much money and was told by him that he did.
[159] The Plaintiff’s evidence reveals that he did not raise any negligence or misrepresentation issues or concerns he had with Ms. Myers directly and/or in respect of her particular management of the funds with her or the Defendants until February 2, 2012. He chose not to.
2012
[160] In 2012, the Plaintiff wanted to know what was used up in his LIF and the applicable percentage rate for the end of the year (CANISM) and he wanted to discuss where the RIF balance was going to go over the next two years even though he had a pretty good idea in 2010 where they were going.
[161] On February 2, 2012, the Plaintiff met with Ms. Myers to review his investments and where his funds were going. Further payout scenarios were provided to him to show that his RIF would be totally exhausted by age 65. He claimed that Ms. Myers when asked to explain a discrepancy between the 2010 and 2012 figures he received from her, she allegedly informed him that she had used the incorrect formula. On examination for discovery, it was noted that Ms. Myers overlooked including a tax rate on the 2010 calculators and as a result the calculations did not reflect after tax income. There was a tax rate included in the 2005 calculator.
[162] The Plaintiff, in answering a question about being upset in 2012, stated that he has been upset for ten years and that in 2012 Ms. Myers finally admitted to him that the numbers were wrong right from the beginning. What he learned in 2012 was what he had known in 2010. There was no revelation to him in 2012; no new facts. His level of satisfaction with Ms. Myers was and continued to be low; that he had been misled and misadvised. He held that feeling for a number of years. Again, these are his words.
[163] The Plaintiff stated that he left the February 2, 2012 meeting distraught and that the whole thing had become a major nightmare for him. He stated that in dealing with Ms. Myers since 2005, she had provided nothing but incorrect financial information to him.
[164] In reviewing the statement of claim, the claim is framed on the 2005 plan and not any new plan. In fact, the way the statement of claim is drafted, he relates his 2012 discoveries as being made aware of for the first time that the information that was provided to him by Ms. Myers in 2005 and 2010 with respect to making his election had been provided to him in a negligent manner and that it was totally incorrect. That being said, even if his claim can be interpreted to also include a modified plan and negligence in relation to a modified plan, I find that he had the documents in his possession since 2010. He did nothing about it with statements he received and reviewed in 2011 simply because he felt nothing could be done. Knowing in 2010 what he knew happened with his 2005 plan, one would expect him to seek other advice and/or take a closer look at how the new plan was performing and if that was not going well, to do something about it which he had the opportunity to do with his statements and when he saw Ms. Myers. He saw Ms. Myers on a regular basis. It was his practice and custom to do so.
[165] The Plaintiff has kept his investment with the Defendants but has a new advisor. The Plaintiff did not advise why he did not do this many years earlier or why he could not have changed to a new advisor. Clearly, he could.
April 2012
[166] The Plaintiff made a formal complaint to Ms. Myers’ supervisor and requested action regarding alleged improper forecasts and negligence on the part of Ms. Myers.
[167] The Plaintiff completed a memorandum to Ms. Karen Curtis in April of 2012 setting out his concerns and seeking action.
[168] After making the complaint, TD Waterhouse Canada Inc. indicated in an email to the Plaintiff dated April 16, 2012, that Ms. Curtis was committed to helping the Plaintiff as best as she could and a response would be provided within 90 days. He further received correspondence from a client relations manager April 17, 2012, advising that a full investigation into his concerns to facilitate a fair and timely solution was their role.
[169] TD Waterhouse Customer Service Group commenced investigating the complaint.
[170] On April 19, 2012, Ms. Curtis wrote to the Plaintiff about the complaint and advised that she would do her best to get “this” settled as expediently as possible for him.
[171] On June 29, 2012, Ms. Curtis informed the Plaintiff in writing that there was no basis for offering compensation and no evidence of financial loss.
[172] I understand the Plaintiff wanted to and attempted to work out his concerns. However, this desire to do so and these facts do not extend the limitation period. It is not incumbent on the Defendants to advise the Plaintiff of his legal rights against them. There was no agreement with the Defendants to extend the limitation period. I do not view the emails, letters and actions of the Defendants in addressing his concerns in this case as more than simply dealing with and investigating his complaint. Finally, the refusal to offer compensation or knowing the Defendants’ position regarding his claims are not facts that he would have needed to make his claims.
Credibility and Weighing Evidence
[173] The Plaintiff claims that the Defendants’ representative’s evidence is evasive and inconsistent, and that as such, the extent of the activities and the actions of this witness must be tested at trial to ensure a fair and necessary review of the claims in respect of the limitation issues. The Plaintiff also asserts that although Ms. Myers stated she spoke to the Plaintiff, Ms. Myers has no notes, written correspondence, emails or faxes, to confirm that she spoke to the Plaintiff about depletion of his capital. The Plaintiff argues that many of the conversations referenced by Ms. Myers at her examination for discovery with the Plaintiff were solely from her recollections, without providing any evidence of notes, meeting, date or content of discussion.
[174] It may well be that there was/is a lack of personal notes or documents reflecting conversations that Ms. Myers said she had with the Plaintiff, however, I do not agree that this means that her evidence is evasive or inconsistent. Further, Ms. Myers, like the Plaintiff, has her own recollection, which she is entitled to rely on and provide like the Plaintiff has, in my view. In addition, there were some notes and calculators produced. While the calculators were not formal handwritten notes, these were documents prepared by Ms. Myers which reflected information exchanged at the time.
[175] Ms. Myers stated in the context of questions about her note taking habits that the Plaintiff often casually just came in to have discussions, not in a formal way. “So yes, I can’t say for sure that I would have recorded every single transaction or every discussion, or every conversation or every visit”. The fact that the Plaintiff attended regularly was part of his own evidence. The Plaintiff agreed that he had a custom or practice to periodically visit Ms. Myers and run scenarios and different calculations, and that there were many different calculations performed at different times for different reasons with different assumptions. He would have been sitting in her office reviewing the outcome of the calculations with her and she would have printed him a copy to look at.
[176] After reviewing the transcript, I am not of the view that Ms. Myers was evasive and inconsistent, and if it could be said that she was, that is was to a degree that a trial was required. Further, and perhaps more importantly, this argument does not advance the Plaintiff’s case because there is certainly plenty of evidence from the Plaintiff himself of what he knew at the relevant times, and as such, the lack of notes or any alleged evasiveness about documents put before Ms. Myers does not create a genuine issue requiring a trial.
[177] Further, on evasiveness, on my review of the transcript of her discovery, Ms. Myers appeared to answer the questions. She did not refuse to answer any questions in the transcript. Although she did not always seem to understand the questions and asked for them to be repeated, she provided answers, and at times she even readily agreed with suggestions unfavourable to her, such as that it would have been prudent to provide a letter in writing to the Plaintiff that his asset was depleting (as opposed to simply discussing it with him verbally). She also readily acknowledged that she overlooked placing a tax rate in the 2010 calculators. I do not agree that the example in paragraph 52 of the Plaintiff’s factum as the Plaintiff suggests supports that Ms. Myers was evasive. In my view, it can be reasonably interpreted that she was explaining to Plaintiff’s counsel the document they were looking at and why it was prepared by her.
CONCLUSION
[178] The Defendants’ motion is granted.
[179] Brief submissions as to costs may be made in writing to my attention on or before December 16, 2016.
Rasaiah J.
Released: November 17, 2016
CITATION: Webb v. TD, 2016 ONSC 7153
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ROBERT WEBB
- and –
TD WATERHOUSE CANADA INC. and TD WATERHOUSE FINANCIAL PLANNING
REASONS FOR DECISION
Rasaiah J.
Released: November 17, 2016