



COURT OF APPEAL FOR ONTARIO

CITATION: Laski v. BMO Nesbitt Burns Inc.,
    2020 ONCA 300

DATE: 20200515

DOCKET: C66956

Pepall, van Rensburg, and
    Paciocco JJ.A.

BETWEEN

Wayne S. Laski
and the Estate of Harold Morton Laski

Plaintiffs (
Appellant
)

and

BMO Nesbitt Burns Inc.
, Louis-Jacques Menard, Charyl A. Galpin, Peter Hinman, William
    Darryl White, Richard L. Mills, Patrick Cronin, Connie Stefankiewicz, Gilles
    Gerard Ouelette and
Norman Yu

Defendants (
Respondents
)

Wayne S. Laski, acting in person

Andrew Parley and Jonathan Chen, for
    the respondents

Heard: In writing

On appeal from the order of Justice
    Sandra Nishikawa of the Superior Court of Justice, dated April 23, 2019.

REASONS FOR DECISION

OVERVIEW

[1]

Harold Laski died on March 13, 2012. His three
    adult children  Brian Laski, Wendi Laski, and the appellant, Wayne Laski 
    were all named as co-executors of his estate. In his will, he left his estate
    to Wendi and to Wayne, Brian already having received significant assets during
    his fathers lifetime. His will contained a clause that said that Wendi owned
    some assets jointly with her father with a right of survivorship. Shortly
    before his death, by way of an irrevocable direction, more than $400,000 in
    securities owned by Harold Laski were transferred into a BMO Nesbitt Burns Inc.
    (BMO) joint account, in the names of Harold Laski and Wendi Laski. This had the
    effect of giving Wendi Laski the right of survivorship to the securities and
    removing them from Harold Laskis estate where they would have also benefited
    the appellant.

[2]

The appellant, a lawyer, was of the view that the
    transfer was fraudulent, that Wendi Laski exercised undue influence over Harold
    Laski, and that BMO was complicit in Wendis misconduct. Litigation ensued,
    with multiple proceedings commenced by the parties. The appellant commenced an
    application (the Estate Application) for various determinations under
    Harolds will, including whether joint accounts in the name of Wendi Laski and
    Harold formed part of Harolds estate, or whether they passed by right of
    survivorship to Wendi. Wendi Laski sued the appellant (the Wendi Action),
    among other things, for partition and sale of a condominium jointly owned by
    Harold, Wayne and Wendi. These proceedings were consolidated (the Consolidated
    Proceedings).  Both in his personal capacity and as a co-executor of Harold
    Laskis estate, the appellant also sued BMO, along with various BMO directors
    and a former BMO investment advisor, Norman Yu, claiming that the defendants either
    engaged in negligent misrepresentation relating to the transfer or breached a
    duty of disclosure (the BMO Action) owed to him. He later discontinued the
    claim against the directors, leaving the action to proceed against the
    respondents to this appeal, BMO and Mr. Yu.

[3]

On January 28, 2016, Conway J. granted summary
    judgment against the appellant in the Consolidated Proceedings, ordering that
    the securities did not form part of Harold Laskis estate and that they passed
    to Wendi Laski by right of survivorship. The appellant, who served a late
    Notice of Appeal, was denied an extension of time to appeal to this court.

[4]

On April 23, 2019, Nishikawa J. (the motion
    judge) granted the respondents motion to strike the BMO Action. The claim the
    appellant purported to bring on behalf of Harold Laskis estate was struck for
    non-compliance with r. 9.01(3) of the
Rules of Civil Procedure
, R.R.O.
    1990, Reg. 194, because the appellant had failed to join the non-consenting co-executors
    as defendants to the action.  The appellant has not pointed to any error in the
    motion judges application of r. 9.01.(3) to dismiss the action brought on
    behalf of Harolds estate. Accordingly, we see no basis to interfere with this
    ruling.

[5]

The motion judge also struck the appellants
    personal claim against the respondents under the issue estoppel branch of the
    doctrine of
res judicata
as having been previously determined by
    Conway J. in the Consolidated Proceedings. In the alternative, she held that the
    appellants action should be stayed as a collateral attack  and an abuse of
    process, and in the further alternative, that it should be stayed because the
    appellants claim disclosed no reasonable cause of action as the respondents did
    not owe him a duty of care, and he sustained no damages.

THE ISSUES

[6]

The appellant appeals the motion judges
    decision to strike his personal action against the respondents. He raises the
    following issues:

A.

Did the motion judge err in not adjourning the respondents motion
    and proceeding in the appellants absence?

B.

Did the motion judge err in granting the respondents motion on the
    merits?

[7]

We would not give effect to the appellants
    arguments on either ground of appeal.

ANALYSIS

A.

The Adjournment Ruling

[8]

On April 12, 2018, Chiappetta J. established a timetable for the
    respondents motion to strike. Dates in July were set for filing materials. 
    There was to be no
viva voce
evidence and the
    motion was set for September 19, 2018.

[9]

On September 18, 2018, D. Wilson J. adjourned the motion at the
    appellants request and with no objection from the respondents. The appellant
    filed a medical note that failed to say why he could not proceed nor when he
    would be able to argue the motion. Wilson J. fixed February 11, 2019 for the hearing
    of the motion, peremptory to the appellant, and ordered that he was to file his
    materials by November 2, 2018.

[10]

On January 28, 2019, Nishikawa J. adjourned the February 11, 2019
    motion to April 23, 2019. The appellant was to serve his materials by March 22,
    2019. The appellant had provided a medical note saying he was unable to work
    for six months.
In granting that adjournment, Nishikawa J.
    said:

No further adjournments will be allowed unless
    the Plaintiff [now the appellant] provides more specific information regarding
    his medical and health limitations on proceeding with his action from a
    qualified medical doctor.

[11]

No responding materials were filed by the
    appellant by the deadline set by Nishikawa J., or at all. Moreover, although
    the appellant sent an email to opposing counsel stating that he had been
    hospitalized and released on April 18, 2019, he did not comply with the
    direction to provide more specific information regarding his medical and
    health limitations on proceeding with his action from a qualified medical
    doctor.

[12]

The appellant did not appear on April 23, 2019,
    the date fixed for the return of the motion. The motion judge treated the email
    sent to opposing counsel as the appellants request for an adjournment. In
    denying the adjournment, the motion judge noted that, while a recent release
    from hospital would normally warrant an adjournment, the motion had been
    pending for almost a year, the appellant had failed to respond, and that the
    only medical documentation he had provided was a note stating that he could not
    work for six months.

[13]

The determination of whether it is in the
    interests of justice to grant an adjournment is discretionary, and the scope
    of appellate intervention is correspondingly limited:
Khimji v Dhanani

(2004), 69 O.R. (3d) 790, at para. 14 (C.A.);
Turbo Logistics Canada
    Inc. v. HSBC Bank Canada
, 2016 ONCA 222, at paras. 16-28.
We see no
    error in the motion judges decision to exercise her discretion and proceed
    with the hearing of the motion. This was the third date set for argument of the
    motion. The motion judge was familiar with the history of the matter, and the
    terms of the previous adjournments, each requested by the appellant.
    Furthermore, the appellant knew that there would be no further adjournments in
    the absence of a medical note providing more specific information about his limitations.
    This was not forthcoming.  In these circumstances, the motion judge properly
    proceeded to hear the motion.

[14]

We have considered the additional medical evidence the appellant has
    produced in this appeal. He has not brought a motion for fresh evidence, and
    even on its face this information fails to explain why the responding materials
    were not filed as directed, or why the unsupported, last minute adjournment was
    required. This ground of appeal must be dismissed
.

B.

The Merits

[15]

In the BMO Action, the appellant alleged that the
    respondents negligently mispresented the circumstances surrounding the transfer
    of the securities into the joint account of Wendi and Harold, or alternatively,
    that they breached a duty of disclosure by failing to disclose to him that Harold
    had changed his mind about leaving the contents of the account to Wendi.

[16]

The former claim is premised on the contention
    that Mr. Yu furnished false information after conspiring with Wendi. As the
    motion judge pointed out, Conway J. concluded that there was no conspiracy
    between Wendi and Mr. Yu. This finding fully addresses and disposes of the
    negligent misrepresentation claim.

[17]

The latter claim, that the respondents breached
    their duty of disclosure,  is based on the contention that, if the
    circumstances surrounding the transfer that were disclosed during the Wendi Action
    are true, the respondents should have disclosed that information to the estate
    trustees in a timely manner after Harolds death, and not after the passage of
    many years. Even if the respondents owed the appellant a duty of disclosure, an
    issue we need not decide, this claim cannot succeed. This is because, as the motion
    judge pointed out, the appellant pleaded in his statement of claim that, shortly
    after Harold died, Mr. Yu had advised him that his father had changed his mind
    and had left the money in issue to Wendi.  The motion judge also found that the
    appellant sustained no damages, and the appellant has offered no basis for
    interfering with that determination, which is fatal to this cause of action.

[18]

In conclusion, we would not disturb the motion
    judges decision. In any event, the motion judge offered various bases for
    staying the action including collateral attack and abuse of process, both of
    which are firmly grounded in the evidence. The order striking the appellants
    action was inevitable.

DISPOSITION

[19]

For these reasons, the appeal is dismissed. The
    parties may make costs submissions in writing, not to exceed three written
    pages each, within 30 days.

S.E.
    Pepall J.A.

K.
    van Rensburg J.A.

David
    M. Paciocco J.A.


