A B.C. court has ruled that TD Bank and TD Evergreen messed up an RSP transfer and breached their fiduciary duty to a client.

The Honourable Mr. Justice D.L. Clancy ruled in favour of Colleen Desharnais in her suit against TD Bank and TD Evergreen concerning the RRSP of her deceased spouse.

Desharnais was the spouse of Keith Hawthorne. He had two investments with the TD Bank. In 1996, Hawthorne designated Desharnais as his beneficiary in the RSP. At the same time, he signed a TD Bank power of attorney appointing her as his attorney.

The TD Bank RSP was subsequently transferred to TD Evergreen without continuing the designation of Desharnais as beneficiary. On Hawthorne’s death, Evergreen paid the proceeds of the RSP to the beneficiaries of his estate, but Desharnais was not a beneficiary.

Desharnais bought the action against both the TD Bank and Evergreen to recover the proceeds of the RSP. She alleges that both the TD Bank and Evergreen owed her a duty of care when giving her advice and carrying out her instructions. She says that they were negligent in giving advice, or in breach of a fiduciary duty owing to her.

The judge ruled that by transferring the RSP without ensuring that Desharnais continued to be named as beneficiary, both the TD Bank and Evergreen acted contrary to law. The transfer was invalid, it ruled; and, by transferring funds to the estate of Hawthorne, Evergreen acted without lawful authority.

The court found that TD Bank owed a duty to Desharnais and was negligent in failing to do so; and that Evergreen was in breach of its fiduciary duty to Desharnais. And it found that she was not contributorily negligent. Both the TD Bank and Evergreen were found liable to Desharnais for the losses she suffered.

The court ruled that Desharnais is entitled to $138,714.69, plus interest at 3.85% for one year.