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 father’s estate in June 2012. In those proceedings, he challenged his sister’s right to certain accounts that had been in the joint names of her and their father, prior to their father’s 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. Laski’s motion was granted and Mr. Laski’s 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 father’s 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 Testator’s 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 Testator’s will; and Norman Yu, the Testator’s investment advisor at BMO Nesbitt Burns. It is noteworthy that the vast bulk of the record was created by Ms. Laski.

[14] Ms. Hamilton’s evidence, supported by her contemporaneous notes, was that it was she who had suggested that clause 8(e) be inserted into the Testator’s 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. Hamilton’s evidence was that the Testator was concerned about Ms. Laski’s 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. Hamilton’s 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 Testator’s 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. Yu’s 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. Yu‘s evidence was that the agreement was prepared on the Testator’s 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 Testator’s 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. Laski’s 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 Testator’s sole account at BMO into the BMO Joint Account. Mr. Yu’s 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. Laski’s benefit alone. Mr. Yu’s 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. Laski’s 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. Laski’s 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 Testator’s 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. Laski’s 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 Testator’s mental capacity.

[23] The motions judge observed that on a summary judgment motion, each side must put its best foot forward. She described Mr. Laski’s 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. Laski’s 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 Testator’s 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 Party’s “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. Laski’s 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. Laski’s 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. Laski’s motion: ownership of the joint accounts.

[44] Second, Mr. Laski’s 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. Laski’s 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. Yu’s 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. Yu’s 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. Laski’s 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 judge’s 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 party’s 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. Laski’s 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 father’s 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 Testator’s clear intention that Ms. Laski was to be solely entitled to the joint accounts on his death. So, too, did the Testator’s 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 party’s 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.