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Corroboration and Material Facts – A Look at the Recent Case of Fair v. BMO Nesbitt Burns Inc

Fair v. BMO Nesbitt Burns Inc (2022) ONCA  https://canlii.ca/t/jsg6c

In the recent case of Fair v BMO Nesbitt Burns Inc., 2022 ONCA 711, the Court of Appeal reviewed an appeal from a summary judgment motion made in the Superior Court. At first instance, the claimant made two separate but interrelated claims against BMO and Mr Fair’s Estate, a claim against BMO for breaching a duty of disclosure and a claim against the Estate for unjust enrichment. The second issue of the case turned on lack of evidence to support the material facts of the claim as required by s. 13 of the Evidence Act, R.S.O. 1990, c. E.23 (“Evidence Act”).[1]

Evidence of material facts are important in litigation, especially so when it concerns the challenging of estates. It reflects one aspect of Estates and Trusts law which seeks to protect the deceased testator and their estate, who are not alive to express their wishes and version of events.


Shortly before the death of Lloyd Fielder Fair on November 23, 2016, the beneficiary designations of three investment accounts held with BMO Nesbitt Burns were changed[2]. Before the amendment, the beneficiary of the three accounts was his wife of 10 years and appellant Anne Elizabeth Fair[3]. After the amendment, the beneficial entitlement went to his children and respondents from Mr. Fair’s previous marriage, Adam Raymond Fair and Ashley Christina Abbott[4].

After Mr. Fair’s unexpected death, the appellant learned of the change and claimed it was a breach of agreement she had had with Mr. Fair. First, the appellant sued BMO, alleging they had violated their duty when failing to advise her of the change when it occurred[5]. Second, she sued the Estate of Mr. Fair and his children, alleging there was a constructive trust held over the proceeds of the investment accounts for her via unjust enrichment[6].

Justice C.F. de Sa of the Superior Court dismissed both claims on summary judgment. On the first claim against BMO, the motion judge found no duty to disclosure. The investment accounts were not held jointly with appellant, so no duty of confidence existed. The judge also found no basis for the second claim of constructive trust. The appellant used the case of Moore v Sweet, 2018 SCC 52, found not to be applicable. The appellant failed to get corroboration for material facts of her claim, as required by s.13 of the Evidence Act[7]. The appellant believed the Court had erred in findings and the issues needed a trial to resolve them[8].

Duty to disclose claim

The Court of Appeal dismissed the claim against BMO for breach of duty. The appellant’s case was premised on a duty to disclose by BMO and both courts deemed no duty existed.[9] Mr Fair’s accounts were not held jointly with the appellant and “there is also no obligation either in [statute] or common law to notify third parties about an individual’s beneficiary choices.”[10] Disclosing the change would have been a breach of Mr. Fair’s privacy and right to dispose of assets how he chooses.[11]

The appellant’s argument on appeal included contention that BMO is not a bank, but rather an investment advisor, and as such, owed a duty under Davidson v Noram, 2005 13 B.L.R. (4th) 35 (Ont. S.C.).[12]  However, the Court of Appeal noted that the application was misplaced since disclosure matters are material to account holders and the appellant was not an account holder.[13]

The Court of Appeal upheld the motion judge’s decision and noted that while there was consent between Mr. Fair and the appellant for BMO to share account information, this did not in and of itself create a duty on BMO to disclose account changes made by one owner to another.[14]

Unjust Enrichment claim, lack of Corroboration

The Court of Appeal also dismissed the appellants’ unjust enrichment claim against Mr Fair’s estate.

The court agreed with the motion judge, finding no basis for the application of Moore v Sweet[15]. In that case, Ms. Moore had an agreement with the holder of a life insurance policy to be designated and maintained as its beneficiary, paying premiums to keep policy in force. In violation of agreement, the policy holder designated Ms. Sweet as beneficiary. In Moore, the agreement that formed the basis of her successful claim were clearly established (she paid the premium, was designated beneficiary and it was maintained[16]).

In Fair v BMO, the agreement was an affidavit that Mr. Fair and the appellant agreed that their investments, with one exception, “would pass on to the survivor in the event that one should die.”[17] There was no explanation as to when or how agreement was made, as the motion judge states, “apart from the [appellant’s] assertion, there is nothing that would support the existence of an actual ‘agreement’[18]. The designations made to the appellant were revocable and thus vague on whether there was clear agreement to maintain them in effect without change[19].

At issue in the second claim was the lack of corroboration to prove what the appellant claims Mr. Fair agreed to was true[20].  Section 13, of the Evidence Act, requires that there be corroboration of material facts alleged by an opposite or adverse party of any matter occurring before the death of the deceased.[21] Mr. Fair’s agreement with the appellant included designating her the entire Estate. In examination for discovery, the agreement was described as all of Mr. Fair’s investment accounts, not just those designated.[22] Since the appellant could not provide any corroboration to set the matter straight, instead claiming exception from it, she failed in her claim.

Fair v BMO highlights how corroboration of material facts is an important consideration in Estates litigation. Section 13 of the Evidence Act exists and effectively acts to protect the deceased and the estate, addressing the obvious disadvantage faced by the dead as they cannot explain their version of events or respond to current version of events.

[1] Fair v BMO Nesbitt Burns Inc., 2022 ONCA 711 at paras 1 and 10 (“Fair v BMO”).

[2] Fair v BMO at para 1.

[3] Ibid

[4] Ibid

[5] Fair v BMO at para 2

[6] Ibid

[7] Fair v BMO at para 10.

[8] Fair v BMO at para 5.

[9] Fair v BMO at para 4.

[10] Ibid; citing Justice C. F. de Sa

[11] Ibid

[12] Fair v BMO at para 5.

[13] Fair v BMO at para 8.

[14] Fair v BMO at para 7.

[15] Fair v BMO at para 12.

[16] Ibid

[17] Fair v BMO at para 13.

[18] Fair v BMO at para 10; citing Justice C F de Sa

[19] Fair v BMO at para 15.

[20] Ibid

[21] Fair v BMO at para 12; citing Burns Estate v Mellon, (2000), 48 O.R. (3d) 641 (C.A)

[22] Fair v BMO at para 14.

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