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 father’s 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 Laski’s 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 Wendi’s misconduct. Litigation ensued, with multiple proceedings commenced by the parties. The appellant commenced an application (the “Estate Application”) for various determinations under Harold’s will, including whether joint accounts in the name of Wendi Laski and Harold formed part of Harold’s 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 Laski’s 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 Laski’s 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 Laski’s 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 judge’s application of r. 9.01.(3) to dismiss the action brought on behalf of Harold’s estate. Accordingly, we see no basis to interfere with this ruling.

[5]          The motion judge also struck the appellant’s 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 appellant’s 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 appellant’s 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 judge’s 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 appellant’s absence?

B.   Did the motion judge err in granting the respondents’ motion on the merits?

[7]          We would not give effect to the appellant’s 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 appellant’s 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 appellant’s 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 judge’s 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 Harold’s 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 judge’s 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 appellant’s 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.”