



COURT OF APPEAL FOR ONTARIO

CITATION: Laski v. Laski, 2016 ONCA 337

DATE: 20160504

DOCKET: M46343

Gillese J.A. (In Chambers)

BETWEEN

Wayne Steven Laski

Applicant (Moving party)

and

Wayne Steven Laski, Brian Eric Laski and
Wendi
    Susan Laski
, in their capacity as Estate Trustees of the Estate of Harold
    Laski, deceased and in their personal capacity as beneficiaries

Respondents (
Responding Party)

Peter Jervis, for the moving party

Andrea L. Di Battista, for the responding party

Heard: April 13, 2016

ENDORSEMENT

OVERVIEW

[1]

Wayne Laski (Mr. Laski or the Moving Party) and Wendi Laski (Ms. Laski
    or the Responding Party) are brother and sister. Mr. Laski started legal
    proceedings in respect of their fathers estate in June 2012. In those
    proceedings, he challenged his sisters right to certain accounts that had been
    in the joint names of her and their father, prior to their fathers death (the
    joint accounts).

[2]

On September 23, 2015, on consent of the parties, a court order was
    issued that contained a schedule for the hearing of a summary judgment motion to
    be brought by Ms. Laski (the Consent Order). When Ms. Laski brought the summary
    judgment motion, Mr. Laski responded with his own summary judgment motion. The two
    motions were heard together. The primary issue raised on both motions was the
    ownership of the joint accounts.

[3]

By order dated January 28, 2016 (the Order), Ms. Laskis motion was
    granted and Mr. Laskis motion was dismissed. The result of the Order is that
    the joint accounts are declared to have passed by right of survivorship to Ms.
    Laski and, therefore, do not form part of their fathers estate.

[4]

Mr. Laski moves before this court for an order extending the time to file
    a notice of appeal from the Order.

[5]

For the reasons that follow, the motion is dismissed.

BACKGROUND IN BRIEF

[6]

Harold Laski (the Testator) had three children: Wayne, Brian and
    Wendi. He passed away in 2012.

[7]

In paragraph 8(e) of his will dated March 27, 2003, the Testator
    specified that any assets which he owned jointly with Wendi Laski were hers
    alone on his death. Paragraph 8(e) reads as follows:

I advise my Trustees that I own some assets jointly with my
    daughter, WENDI SUSAN LASKI. For greater certainty, I advise my Trustees that
    these assets are owned jointly, with right of survivorship. If my said daughter
    survives me and if, for any reason, any assets owned jointly with my said
    daughter at the time of my death do not pass to her automatically on my death
    by operation of law, I direct my Trustees to transfer such assets to my said
    daughter on my death.

[8]

He bequeathed the residue of his estate to Ms. Laski and Mr. Laski in a
    60/40 split, having made provision for Brian on an
inter vivos
basis.

[9]

After the Testator died, Mr. Laski began litigation in which he sought,
    among other things, a determination of what joint accounts had passed to Ms. Laski,
    based on a right of survivorship, and which of those accounts she held by way
    of resulting trust for the Estate. He alleged that Ms. Laski dealt fraudulently
    with the joint accounts and had exercised undue influence over the Testator
    during the final months of his life, during which time some of the Testators
    assets were transferred into joint names with Ms. Laski.

[10]

Mr.
    Laski is a lawyer. Early in the litigation, Mr. Laski had legal representation
    but he acted in person on the summary judgment motions. He is represented by counsel
    on this motion.

[11]

Ms.
    Laski has had counsel throughout.

[12]

Mr.
    Laski served a notice of appeal of the Order in mid-March 2016,
[1]
by which time the 30-day deadline for serving a notice of appeal had passed. As
    a result, he brought this motion to extend the time to appeal.

THE DECISION BELOW

[13]

The
    motion judge reviewed the significant record that had been filed on the two summary
    judgment motions, including the evidence of: all three Laski children; Angelique
    Hamilton, the solicitor who had prepared the Testators will; and Norman Yu,
    the Testators investment advisor at BMO Nesbitt Burns. It is noteworthy that
    the vast bulk of the record was created by Ms. Laski.

[14]

Ms.
    Hamiltons evidence, supported by her contemporaneous notes, was that it was
    she who had suggested that clause 8(e) be inserted into the Testators will. The
    Testator had told her that he held assets in joint tenancy with Ms. Laski and
    wanted to ensure that those assets would go directly to her on his death, and
    not form part of his estate. Ms. Hamiltons evidence was that the Testator was
    concerned about Ms. Laskis financial situation because she was single, lived
    in Los Angeles, and worked in the film industry, which has its ups and downs
    whereas Mr. Laski was married, had a family and was a practicing lawyer.

[15]

Ms.
    Hamiltons evidence was that the Testator fully understood how joint accounts
    with a right of survivorship worked, that the Testator told her that he believed
    that Mr. Laski would challenge entitlement to the joint accounts based on the
    right of survivorship, and that he (the Testator) wanted to avoid litigation. This
    led Ms. Hamilton to suggest that para. 8(e) be inserted into the Testators
    will so that there would be no mistake about his intention in relation to the
    joint accounts. The Testator specified that he did not want to identify the jointly
    owned assets in his will because it would make his life a living hell if Mr. Laski
    knew the extent of the assets that would fall outside of his estate.

[16]

Mr.
    Yus evidence related to the account that the Testator opened in April 2011 at
    BMO Nesbitt Burns in joint names with Ms. Laski (the BMO Joint Account). Mr.
    Yus evidence was that the agreement was prepared on the Testators
    instructions and the BMO Joint Account had a right of survivorship. Investments
    of approximately $102,000 were transferred from a joint investment bank account
    at a different bank into the BMO Joint Account in May 2011.

[17]

The
    Testator entered the hospital in December of 2011 and remained there until the
    beginning of January 2012, when he returned home. On January 10, 2012, while at
    home, the Testator and Ms. Laski signed two directions. Both directions had
    been prepared by Mr. Yu on the Testators instructions. Mr. Yu completed the
    forms and witnessed the signatures of the Testator and Ms. Laski.

[18]

The
    first direction transferred money from the BMO Joint Account into Ms. Laskis
    own account at BMO. Mr. Laski did not take issue with that transfer.

[19]

The
    second irrevocable direction transferred over $400,000 in securities from the
    Testators sole account at BMO into the BMO Joint Account. Mr. Yus evidence
    was that the Testator instructed him to make this transfer because he felt he
    was dying and wanted to make sure that Ms. Laski was taken care of. Mr. Yu
    understood from the Testator that the assets were to be for Ms. Laskis benefit
    alone. Mr. Yus evidence was that the Testator complained that he was having
    problems with Mr. Laski at the time, and that Mr. Laski had been bullying him
    and asking for money that the Testator did not want to give him. His evidence
    was that the Testator said he was tired of Mr. Laskis bullying, that he did
    not want Mr. Laski to receive more money, and that he wanted to protect Ms.
    Laski.

[20]

The
    motions judge rejected Mr. Laskis allegations that Ms. Laski had exerted undue
    influence over the Testator during this period. She found no evidence that the
    Testator was dependent on or vulnerable to Ms. Laski, noting that the Testator
    had 24-hour third party caregiving in the relevant period. She also noted that
    there was no evidence that the Testator was isolated in any way from the rest
    of his family. The fact that Ms. Laski visited her father and supported him
    during and after his hospital stay was not evidence of undue influence nor was
    the mere fact that she was liaising with the Testators investment advisor,
    given that the Testator wanted to make some changes to his accounts at that
    time.

[21]

There
    was no medical evidence to support Mr. Laskis claim that the Testator was
    vulnerable to any undue influence at the time.

[22]

All
    parties conceded that there were no issues with respect to the Testators
    mental capacity.

[23]

The
    motions judge observed that on a summary judgment motion, each side must put
    its best foot forward. She described Mr. Laskis evidence as bald and
    self-serving.

[24]

The
    motions judge found that the issues relating to the joint accounts could be
    fairly and justly adjudicated on the motions and did not require a trial. She
    also reviewed the evidence relating to the alleged inconsistencies in Ms.
    Laskis evidence that Mr. Laski relied on and found they did not give rise to a
    legal finding of fraud or deceit.

[25]

The
    motions judge referred to the relevant legal principles in
Pecore v. Pecore
,
    2007 SCC 17, [2007] 1 S.C.R. 795, and concluded that the presumption of
    resulting trust had been rebutted. She found the evidence was overwhelming
    that the Testator intended that any assets in joint accounts were gifts to Ms.
    Laski and that she acquired them, on the Testators death, for her sole use. The
    Testator knew exactly what he was doing.

ANALYSIS

The Test

[26]

The
    overarching principle on a motion to extend time to file a notice of appeal is
    whether the justice of the case requires that an extension be given:
1250264
    Ontario Inc. v. Pet Valu Canada Inc.
, 2015 ONCA 5, at para. 6.  Each case
    depends on its own circumstances but, in answering that question, the court is
    to take into account all relevant considerations, including:

1.   whether the moving
    party formed a
bona fide
intention to appeal within the relevant time
    period;

2.   the length of, and
    explanation for, the delay in filing;

3. any prejudice to the
    responding parties caused, perpetuated or exacerbated by the delay; and

4.   the merits of the
    proposed appeal.

1.       Intention to appeal

[27]

In
    this case, there is no doubt that the moving party formed a
bona fide
intention
    to appeal within the appeal period.

2.       Length of, and explanation for, the delay

[28]

The
    length of the delay in filing the notice of appeal is short  less than three
    weeks.

[29]

However,
    I find the explanation given for the delay to be troubling.

[30]

In
    his affidavit on this motion, Mr. Laski states that he failed to file his
    notice of appeal in a timely fashion because he thought that it could only be
    prepared after he received a transcript of the oral reasons for judgment. The oral
    reasons were delivered in court at the end of the hearing of the summary
    judgment motions.

[31]

In the
    same affidavit, Mr. Laski says: I do not do civil appeals. I am not
    experienced with respect to civil appeals. He goes on to say that he only
    realized that he had missed the deadline for appeal when he contacted counsel
    after receiving the transcript of the oral reasons.

[32]

Counsel
    for the Responding Party points out that in his affidavit, Mr. Laski neglected
    to inform the court that he acted as counsel for the plaintiffs (one of whom
    was an employee of his) in a summary judgment motion heard over two days in the
    Superior Court of Justice in April of 2014.
[2]
Mr. Laski also neglected to inform this court that later that year, he acted
    as counsel for the same parties when they appealed from the decision rendered
    on the summary judgment motion.
[3]


[33]

The Responding
    Party raised other instances of what it called the Moving Partys
    misrepresentation and/or false evidence. I find it unnecessary to deal with
    those other matters. The facts set out in the preceding paragraph alone make
    the explanation for the delay troubling. While Mr. Laski states that he practices
    in the field of criminal law, the fact remains that less than two years ago, he
    served as counsel both on a summary judgment motion and on an appeal against
    the resultant decision to this court.

[34]

In
    these circumstances, doubt is cast on the explanation for the delay. At a
    minimum, it suggests that Mr. Laski was less than forthcoming in his
    explanation for the delay.

3.       Prejudice

[35]

The Responding
    Party asks the court to consider the emotional toll that this litigation is
    exacting on Ms. Laski, noting that this emotionally-charged estate litigation
    between siblings has been drawn out over several years and involves deeply personal
    allegations against Ms. Laski, including allegations of fraud.

[36]

It
    is an unfortunate reality that a respondent often suffers emotional and
    financial stress when an appeal is delayed. However, as I understand it, the
    prejudice to be considered when deciding a motion to extend time to appeal
    refers to the prejudice attributable to the delay in filing the notice. I have
    been pointed to no prejudice caused, perpetuated or exacerbated by the delay.

4.       Merits of the appeal

[37]

When
    considering the merits of the proposed appeal for the purpose of determining
    whether to grant an extension of time to appeal, the court is to determine not whether
    the appeal will succeed but whether it has so little merit that the court can reasonably
    deny the moving party his or her important right of appeal:
Nguyen v.
    Economical Mutual Insurance Co.
, 2015 ONCA 828, at para. 13. It is readily
    apparent that this is a low threshold. However, it is a very significant one
    because even if the other considerations augur in favour of extending time,
    where the appeal is clearly without merit, the motion will be denied:
Nguyen
,
    at para. 13.

[38]

The
    Moving Party in this case has failed to show any merit in his proposed appeal.

[39]

In
    his proposed notice of appeal, Mr. Laski raises two different sorts of grounds
    of appeal. First, at clauses 11 (a), (b) (c) and (g) of the proposed notice of
    appeal, Mr. Laski sets out grounds of appeal relating to the way in which the
    motions judge handled credibility issues. Second, in the balance of paragraph
    11, there is a list of numerous alleged errors going to the merits of the
    Order. Paragraph 11 of the proposed notice of appeal is set out in full at
    Appendix A to these reasons.

Grounds Relating to Credibility

[40]

Based
    on the proposed notice of appeal and oral submissions made at the hearing of
    this motion, I understand that in the proposed appeal, the Moving Party would
    seek to establish that the motions judge erred in deciding the motions without
    requiring either the oral examinations of witnesses as part of the hearing of
    the motions or requiring a trial of an issue. Counsel for Mr. Laski says that Mr.
    Laski raised credibility issues before the motions judge that could not be
    fairly decided in the absence of oral evidence. Counsel further submits that
    Mr. Laskis plea to the motion judge that he be allowed to cross-examine Norman
    Yu was shut down and this was a denial of procedural fairness.

[41]

For
    three reasons, I see no merit in this ground of appeal.

[42]

First,
    Mr. Laski agreed to have the matter proceed by way of a summary judgment
    motion. It is not a viable ground of appeal to now argue that the summary
    judgment process, which gives the motion judge the power to decide credibility
    matters without the necessity of hearing oral testimony, was flawed.

[43]

The Consent
    Order makes it clear that Mr. Laski agreed that the matter would be dealt with
    by way of a summary judgment motion. So, too, does the fact that he responded
    to Ms. Laskis motion by bringing his own summary judgment motion, returnable
    at the same time. Clearly, he must have thought that the summary judgment
    process was suitable for disposing of the proceeding. Notably, his cross-motion
    for summary judgment addressed the same issues as those in Ms. Laskis motion:
    ownership of the joint accounts.

[44]

Second,
    Mr. Laskis complaint that the summary judgment motions could not be fairly
    decided in the absence of oral testimony is belied by the fact that the primary
    relief he seeks in the proposed notice of appeal is that his summary judgment
    motion be allowed. If it were an error for the motions judge to have decided
    the motions without hearing oral evidence then that relief could not fairly be
    granted on an appeal.

[45]

Third,
    there is nothing to Mr. Laskis submission that the motions judge erred in
    failing to call oral evidence or order trial of an issue.

[46]

Mr.
    Laski says that the motions judge erred by failing to allow him to call Norman
    Yu. But there was nothing to prevent Mr. Laski from calling Mr. Yu as a witness.
    Paragraph 2 of the Consent Order provides that [e]ither party may elect to
    call Norman Yu as a witness at the Summary Judgment motion in addition to seeking
    an Order pursuant to Rule 31.10 of the
Rules of Civil Procedure
. Mr.
    Laski did neither. Had he wanted to call Mr. Yu as a witness, para. 2 of the
    Consent Order expressly empowered him to do exactly that.

[47]

While
    Mr. Laski did not call Mr. Yu as a witness at the hearing of the summary
    judgment motions, as he could have, he did ask that Mr. Yu be ordered to
    re-attend for examination. The motions judge denied that request after hearing
    submissions from both parties and from counsel for Mr. Yu. Mr. Laski conceded
    that, at his December 2015 examination, Mr. Yu answered the questions that Mr.
    Laski asked about Mr. Yus interactions with the Testator. The motions judge
    observed that it was those questions that were relevant to the summary judgment
    motions. There is nothing to the suggestion that the motions judge erred in
    refusing to require Mr. Yus re-attendance.

[48]

Similarly,
    there is nothing to the submission that the motions judge failed to properly
    consider the credibility issues that Mr. Laski raised in respect of Ms. Laski. The
    motions judge dealt with those matters, pursuant to her powers under rule 20.04(2.1)
    which empowers her to weigh the evidence and evaluate credibility. Saying that
    she erred by failing to order the trial of an issue does not make it so. The Moving
    Party must do more than baldly assert that it was an error to fail to order the
    trial of an issue, particularly as Mr. Laski never asked below that Ms. Laski
    be required to give oral testimony or for trial of an issue.

[49]

Accordingly,
    there is no merit to Mr. Laskis submission that the motion judge erred in
    principle when she decided the motions on the basis of the written record
    before her.

Merits of
    the Order under Appeal

[50]

The
    grounds in the proposed notice of appeal going to the merits are bald
    generalised assertions that amount to little more than saying that the motions
    judge erred in everything that she decided.

[51]

The
    motion judges findings are entitled to significant deference. Mr. Laski has
    pointed to no errors in those findings, much less a palpable and overriding
    error. Although there is a low threshold when considering the merits of the
    proposed appeal, bald assertions without more do not meet it.

The Justice of the Case

[52]

As I
    previously indicated, the overarching principle on a motion to extend time is whether
    the justice of the case requires that the extension be granted.

[53]

There
    is no question that Mr. Laski formed the intention to appeal immediately on
    learning that he was unsuccessful on the motions below. The delay in this case
    is short and I have been pointed to no prejudice flowing from that delay. However,
    as I have explained, I am troubled by the moving partys explanation for the
    delay. Furthermore, Mr. Laski has failed to show that there is any merit to the
    proposed appeal.

[54]

The
    motions judge dealt thoroughly  both legally and factually  with Mr. Laskis contention
    that his father never intended Ms. Laski to have the joint accounts on his
    death, and that Ms. Laski exercised undue influence and fraud to transfer the
    bulk of their fathers estate to a joint account in the three months before his
    death.

[55]

In
    the words of the motions judge, there was overwhelming evidence that the
    Testator intended the joint accounts to pass to Ms. Laski on his death. Paragraph
    8(e) of his will said precisely that. His solicitor gave evidence, supported by
    her notes made contemporaneously with the preparation of his will, that it was
    the Testators clear intention that Ms. Laski was to be solely entitled to the
    joint accounts on his death. So, too, did the Testators investment advisor.

[56]

The
    justice of the case does not warrant an extension of time to file a notice of
    appeal.

DISPOSITION

[57]

Accordingly,
    the motion to extend time is dismissed.

[58]

If the parties are unable to agree on costs, they may make written
    submissions, not to exceed two typewritten pages, no later than 7 days from the
    date of release of this endorsement.

E.E. Gillese
    J.A.


APPENDIX A

Paragraph 11 of the moving partys proposed notice of
    appeal reads as follows:

11. In summary, Conway J. made the
    following errors:

(a) She erred by
    failing to properly direct herself regarding the proper principles to apply
    when determining a summary judgment motion involving issues of credibility and
    material conflicts in the evidence on the record which require either a trial
    of the issue or trial to resolve fairly.

(b) The failure
    to properly consider the issues of credibility arising: Conway J. erred in
    ignoring the issues of credibility and perjury on the record.

(c) Failure to
    direct oral examination when there were serious issues of credibility on the
    record.

(d)  Failure to
    apply the proper principles with respect to the presumption of undue influence
    on a testator.

(e)  Failure to
    apply the proper principles with respect to the presumption against gift.

(f)   Failure in
    finding there was no independent evidence to support undue influence.

(g)  The
    evidence of Norman Yu was concealed by Wendi Laski and the Bank of Montreal for
    almost four years before it was brought forward. It was only brought forward
    one month before the motion. Conway J. erred in failing to consider the fact
    that the evidence of Norman Yu was untested and uncorroborated and lacking in
    credibility.

(h) Failure in
    her finding that Wayne Laski was in breach of section 13 of the
Evidence Act
.

(i)   Failure to
    use the proper test for civil fraud.

(j)   Her
    findings and decision were contrary to the weight of the evidence.

(k)  The
    transcript of Oral Reasons of Justice Conway, which provide the basis for this appeal,
    were only released on March 2, 2016.





[1]
The parties dispute the effective date of service.  It is either March 17 or
    19, 2016.



[2]

Danos v. BMW Group Financial Services Canada et al
, 2014 ONSC 2060.



[3]

Danos v. BMW Group Financial Services Canada
, 2014 ONCA 887.


