An update on my ongoing battle with Kim Whaley.
We will be proceeding with the initial case of negligence against her, and her claim for fees.
They served me with an appointment for discoveries which I attended. Due to my health, I was unable to complete the undertakings. I had done most of them and was completing the last few when she took me to court to get an order for the rest of the undertakings and got costs of $1500 against me.
Recently I received, from the court, an Administrative dismissal of my case as it had not been set down for trial within five years. I will be moving to set this aside.
There are a number of reasons that it was not set down within five years.
My health has not been good for the last several years. It forced me to close my office and give up the active practice of law. I was under doctor’s orders to rest and not work.
While this was going on she brought another claim against me for libel and slander. It will be interesting because what I wrote is the truth as I experienced it.
At the same time, I was concentrating on the Estate Case.
To significantly add to the length of the case was the decision by Whaley to take advantage of a rarely used rule to delay my ability to examine her until my discoveries were completely finished. This is most unusual as most discoveries between the parties are carried on over the same period of time. This decision caused significant delays. I advised them in writing and reminded them of my health, suggesting that delaying my discovery of Whaley could be impacted by my health causing further unnecessary delays.
Before this Whaley brought a Summary Judgement Motion. These are relatively new procedures where appropriate matters are disposed of when the facts are not seriously in dispute if the moving party can show that there is no issue for trial. These are generally not appropriate for Solicitor’s Negligence cases.
it is even more inappropriate in these circumstances where I have not examined Ms. Whaley on my allegations of negligence.
Somehow in her arrogance, she claims to have followed my instructions and behaved professionally and competently.
I will not get into all of the questions I have to show how poorly she served me and how she overcharged me. I will save that for my examination of her.
Here are just a few of my complaints about her negligence:
- She served an offer to settle which left out all of the bank accounts that I was claiming. The other counsel brought this up many times in suggesting that I was not originally seeking the bank accounts.
- in my first conversation with her, we discussed the importance of pinning down the evidence of Norman Yu my father’s broker. There were several instances in the correspondence where I instruct them to do this, urge them to do this, and they did not. As a result, Norman Yu had four years to make up evidence that was false. Had Whaley done her job, that false evidence would not have cost me the case.
- When in August 2012 we brought a motion before Justice Nordheimer to freeze the funds. The evidence of Norman Yu, which was that Harold Laski made it clear that all of the money was to go to Wendi somehow wasn’t raised in this hearing. Because it wasn’t true. And we really never pinned down the evidence of Norman Yu.
- Before the same hearing, I instructed Whaley’s office to seek repatriation of any funds that were missing and costs. She refused to follow these instructions to my detriment,
- Although she originally estimated $20,000 to bring an application and get an order for directions. I had paid her approximately $35,000. In October she presented me with another bill in the same range, telling me that these were legitimate charges from June which were “missed.”
- She went ahead and lied saying that I promised to pay the balance. when I saw I was paying almost $10,000 a month and seeing little or no result, I had no intention of continuing with her never mind paying her for this new predatory bill.
There are many other issues relating to her poor handling of my case, the predatory fees, and the lack of professionalism in dealing with me as a client.
Even if she gets to proceed with the Summary Judgement Motion, I will be appealing in arguing that it was not the appropriate forum for a Solicitor’s negligence case.
On top of that, resolving that case will not resolve the slander and defamation case she brought. The facts of that case will be very similar to the one for which she has sought Summary Judgement. The article over which she is suing me, is true because it’s based on and framed in terms of my opinion and experience of her.
Then there’s the complaint to the Law Society. It is primarily a complaint that repeats the libel and slander claim. The only difference is that she has included a claim against me for recording our initial conversation. She takes the position that lawyers are not supposed to record other lawyers. I never dealt with her as a lawyer. I dealt with her as a client. I am glad I recorded the call because she made a number of representations that she did not fulfill.
The other aspect of that complaint that shows the ethics of Whaley and her lawyers is that originally when I told Whaley about the recording, she threatened me professionally if I ever use them. Subsequently, her lawyer, wanted the recording, and in writing represented that if I gave them copies, she would not report me to the Law Society. True to her ethics she did report me.
Interestingly enough, on the complaint itself that was sent to the Law Society, Whaley lists her lawyer as Valery Edwards, Law Pro lawyer.
Law Pro is the insurance provider for lawyers in Ontario. They provide defenses when lawyers are sued. How dare they file a complaint to my professional governing body suggesting that Law Pro is behind the complaint. I have written to Law Pro to inquire and complain about what I consider to be improper conduct. I have twice written to the head of Law Pro and have not received an answer.
The issues surrounding the estate Case were troubling enough. To find myself still fighting this arrogant and vindictive lawyer means I can’t let go of this case yet.
As I’ve said before, if she had pursued my case as viciously as she has pursued me, we might not be in this position.
The above is the opinion and experience of the author as a litigant and a victim.
DO THE RIGHT THING
I thought I would provide an update on my continuing search for justice from the criminal actions of BMO.
I will set out the present status. A lot of it deals with the attendances at court and my health, a lot of it involves BMO, but more particularly some judges who regardless of my health and medical treatment have put pressure on me to disclose aspects of my health that are not being challenged, and then proceeding in my absence.
DO THE RIGHT THING
BMO’ s failure to consider this approach confirms to me the existence of a criminal culture that I experienced in my dealings with BMO that promoted illegal activity, lying about it and putting that evidence to court, and spending excessive amounts of money to conceal and fight it. My question is just this. If I was wrong. If there was not the criminal culture I experienced, why did no one from BMO ever contact me, own and take responsibility for their action and deal with it properly. DO THE RIGHT THING. The fact that they don’t seem to know what THE RIGHT THING is ,nor have they made any effort to show that they are not the criminals that the evidence shows them to be. Instead they spent your money if you are a customer of BMO to fight the victim. All of their actions and the fact that they have not DONE THE RIGHT THING. Confirms that culture to me.
If they really believed it and practised the ethics of trust and honesty they profess, and what Canadians expect from them, you would think they would be anxious to clear up the matter and demonstrate that they will not tolerate fraud dishonesty or lying. Unfortunately here they not only tolerated but went to great lengths including criminal activity to defendant support it while apparently refusing to do a proper if any investigation. This is strong confirmation of a culture of dishonesty, fraud, arrogance, entitlement, and of an organization apparently devoid of ethics
After the Summary Judgement Motion, I brought an action against all of the parties who had committed perjury and fraud in obtaining the judgement.
It turns out that you can stand on the street corner lie about someone and do serious damage and be sued for libel and slander if it is not true. In our legal system in Ontario, you can go to court, commit perjury and lie, cause damage to the other party, and you are not liable for the damage that your lies under oath were responsible for.
BMO and the other parties brought a motion to dismiss this action and the previous action I brought against them in 2015, based on the argument that had been decided by Conway and was therefore res judicata in that it was already determined. I consented to dismissal of the action that I brought after the summary judgement motion.
I don’t disagree that most of the facts and law that Conway corruptly distorted, despite the breach of her obligations as a judge, are nonetheless final.
The one issue that was not decided by Conway was whether or not
BMO owed me a duty as an executor. They say they do not owe me a duty. I believe they are very wrong. An executor is entitled to any information’s that the deceased would be entitled to.
That breach of duty and the failure to disclose the evidence they allege was from Harold Laski was to cover up the fraud they committed.
I have been in ill health for several years. As a result of my health I had to give up practising law and my house. A great deal of my psychological illnesses are a direct result of the abuse I’ve suffered from a number of judges in this this matter.
The matter initially had come up in front of Justice Chiappetta on April 12, 2018. As a result of which and pursuing torpor instructions, I delivered a notice of discontinuance on the case that I had brought after the summary judgement motion. As far as the other action was concerned although most of the facts I was stuck with from Conway’s perverse judgement I made no argument. The only issue was their duty to tell me as an executor any information I asked for or requested that the deceased would be entitled to. The law is that an executor stands in the shoes of the deceased.
Justice Chiappetta made a very strange order. It is an order that I do not recall ever hearing in such circumstances. She ordered that there be no cross examinations on the affidavits. Neither counsel raised this issue. It was a surprising and unsolicited order from the court which restricted my ability to provide full answer and defense. There are issues in the affidavit of Andrew Parley which are inaccurate and require cross-examination. I was not well and was stunned at the lack of explanation from her and the lack of any response from counsel to this off hand order.
This was just one of the odd and unusual decisions from a number of judges who dealt with this case and made decisions which in my opinion do not appear to conform to my understanding of general judicial standards.
The next time the matter came up with September 10, 2018 before Justice Gloria Wilson. By this time my health was such that I had to appear by CourtCcall, a service used by a number of jurisdictions including Ontario, to provide audio and video connection to the court room.
I was now ill and unable to work.I had a number of medical certificates over the last few years when they were required. I had never had any problem. The note said that for health reasons I was not able to work and I would be reassessed in two months.
Wilson, with no evidence of any kind to suggest that my certified doctor and myself as a solicitor with 40 years experience were misleading the court.expressed dissatisfaction with the note finding that it did not give the reasons I couldn’t proceed.
I explained to her that I do not write the doctor’s notes, nor do I tell them what to put in. I had had a total break down as a result of the corrupt decision of Conway and being defrauded and lied to by BMO. My instructions from my five physicians was that I needed a complete rest and was not capable of working at all as the letter said.Wilson didn’t ask me for any clarification. Nor did she suggest we get further information from the doctor.
With what I view as a total lack of judicial integrity she granted the adjournment which was not being opposed. She ordered me to deliver materials which was clear I would not be well enough to do by that time. Then she went and ordered that the matter be peremptory on me. This means that I could not get it adjourned and had to go ahead on that date. Given my health that order did not seem to make sense. It seemed like a very inappropriate way to deal with the medical certificate. It was certainly not warranted in the circumstances and was inappropriate
The order had no basis in law or fact. That remedy is imposed by a court when one of the parties is delaying the matter unduly. In this case it was the first time up. There was no suggestion by the other party that I had in any way done anything improper or intentional to delay the matter. In my opinion a sad example of ego and judgeitis and was clearly contrary to the standards for judicial behaviour. it showed bias, a lack of impartiality and lack of fairness.
The worst part was that the pressure my doctors were trying to relieve me from so I could be treated was multiplied by the pressure of that decision. I had a relapse which severely affected my life. A further result of that mean-spirited decision was that future judges who dealt with the matter would put pressure on me and remind me that it was peremptory on me.
The next appearance was scheduled for Tuesday, 23 April 2019 before Justice Nishikawa. The Tuesday following the Easter Holiday long weekend
I had been taken by ambulance to Toronto General Hospital, then to Toronto Western Hospital, and back to Toronto General.I was there for 10 or 11 days. I was released late Thursday night right before the Easter Weekend. I was not able to arrange a Court call appearance in such a short time.
I sent the following email to BMO’s counsel Jonathan Chen:
This is further to your email below and our conversation of this morning.
As I advised you I was taken to the hospital April 10 at the Toronto Western where I spent a few days.
I was transferred to TGH I believe on the Friday the 12 and was released late Thursday the 18th.
The hospitalization was the result of my blood sugar being over 30 and my kidneys failing.
Given the Easter weekend, I was unable to get any of the documentation from the hospital.
Again given the holiday I was unable to set up court call even though I tried them several times.
I am not well enough to attend.
His honour had indicated that if I wanted an adjournment I would have to provide medical evidence.
As I say I have not had that opportunity.
Since we last appeared in court I have seen seven different doctors.
I was at my psychiatrist office to discuss a letter from him, when I fell ill and was admitted to the hospital.
I have not left my house save and except for medical appointments in the last several months.
I intend to provide documents from the hospital and my GP and Psychiatrist as evidence of my liabilities and limitations.
The only issue remaining between the parties is whether or not BMO owed to me as an executor a fiduciary duty to advise me with respect to the deceased dealing with his account.
BMO refused when my father died to give me any information. They stonewalled me for four years revealing the evidence one month before the motion. This evidence was used as determinative by judge Conway.
Their failure to provide it precipitated a very expensive four year estate battle causing approximately $400,000 in cost.
Your Honor this is an important issue. Besides their other conduct there should not be a precedent where a bank can deny an executor who stands in the shoes of the deceased.
I have asked Jonathan Chen to bring his cell phone tomorrow morning and if possible call me so that I can participate.
If not I would ask that you adjourn the matter to give me an opportunity to collect the medical evidence
Wayne S. Laski
416-229-1166 direct line
I acknowledge receipt of your below email which appears to suggest that you will not be appearing on the motion scheduled for April 23, 2019.
As you know, our motion to strike was originally scheduled on April 12, 2018 for a full day on September 19, 2018. You took no issue with the hearing date at that time.
About a week before the hearing, we attended before Justice Wilson at Civil Practice Court wherein I requested an adjournment for health reasons but only provided the Court with a one-line medical note that provided no details as to why you could not proceed. Justice Wilson ultimately adjourned the motion to February 11, 2019 on a peremptory basis and required that your responding materials be filed by November 2, 2018. No materials were filed by that deadline.
On January 28, 2019, we appeared again at Civil Practice Court before Justice Nishikawa. Although the hearing was marked peremptory by Justice Wilson, you demanded an adjournment for health reasons. Justice Nishikawa adjourned the motion to April 23, 2019 and required that you file responding materials by March 22, 2019. Justice Nishikawa also endorsed that there would be no further adjournments unless you provide specific information regarding your medical and health limitations from a qualified medical doctor. To date, we have not received responding materials from you or the medical documentation required by Justice Nishikawa.
In the circumstances, we intend to proceed with the motion scheduled for April 23, 2019. In light of your e-mail below, however, we will consider an adjournment provided that you provide us with written confirmation that you have been admitted into a hospital. Specifically, in line with the previous endorsements made to date, we require a medical note from your treating doctor indicating which hospital you have been admitted into, how long you will be admitted and for what reason you have been admitted. If you cannot provide us with a medical note, please have your treating doctor call us. We can be reached at (416) 865-3553 or (416) 865-3093.
We look forward to hearing from you. If we do not hear from you, we will provide this correspondence to the judge hearing the motion next week and will ask that the motion proceed as scheduled.
From: Wayne [mailto:firstname.lastname@example.org]
Sent: Tuesday, April 16, 2019 11:42 AM
To: Jonathan Chen
Cc: Sophie Alexander
Subject: Re: Laski – Motion
Jonathan. I won’t get a chance to read the enclosure. I’m presently in the hospital since last Wednesday and they believe I will be here for a week or two. I will be in touch when I get out
From: Jonathan Chen <email@example.com>
Sent: Tuesday, April 16, 2019 10:03 AM
Cc: Sophie Alexander
Subject: Laski – Motion
We will be filing the attached motion confirmation form today (and before 2PM). Please advise if you have comments.
If we do not hear from you in the next two hours or so, I will amend the form accordingly.
The rules of professional conduct state that Council should agree to a request for an adjournment unless it goes to the merits. It is interesting to note that the instructions from BMO, was to oppose the adjournment and proceed despite my circumstances.
Despite my request I was not connected to the hearing by cell phone. I cannot remember another time in my career where request to appear by phone was never denied unless there was a technical problem.
Nonetheless they continued in my absence. With the email handed to him, Nishikawa, knowing I had just been in the hospital went ahead and gave BMO the order dismissing my case. Even the one part which is definitely a triable issue, their obligation to provide me as an executor any information the deceased would be entitled to.
Also, without argument he awarded $20,000 in costs against me in favour of BMO. Here’s another example of them getting to commit fraud lie and put false evidence in the court, and I have to pay them for the privilege.
I should also mention here in this discussion of judges who ignore Doctor’s certificates, fail to consider that there are issues of privacy in people’s health. If a doctor provides a letter which indicates somebody cannot work, what more are you entitled to unless there is some suggestion that the issue of the illness is not true. This was not the case for me. I had cancer operation in 2014, spinal surgery in 2015, and other ailments which I don’t feel are required knowledge for the court for the public. Any suggestion by any of those judges or counsel that there was some question as to my health, could certainly be documented by the trauma I suffered from Conway’s judgement.I lost total respect for the judicial system and the concept of Justice that I had spent 40 years of my life dedicated to. I lost my practice, I lost my home, I lost my health. Any suggestion that I did all that to avoid arguing the motion with BMO is ridiculous.
I am presently forced to appeal Nishikawa’s order. Personally, I do not see how denying an opportunity to be heard in such circumstances would be seen by anyone to be bias, lacked impartiality and fairness.
I personally don’t see, in the judgements above, the honouring of the principal, that not only should justice be done, it should be seen to be done. In those instances where judges ignored or criticized without basis the doctor’s writings, I do not think a reasonable person would say that there was not an element of bias and unfairness. Tough to be fair and reasonable when one of the parties is not there,
I became a lawyer because I believed in justice and to fight injustice. I will continue to pursue justice in this matter because people or corporations should not so blatantly and arrogantly commit frauds. be allowed to come to court and lie about it, and get away with it. no faith now
This will not end if they’re lucky enough to defraud and defeat the legal system again. I shall warn as many as I can in any appropriate manner. I shall certainly be sending copies to most of Canada’s financial editors. I can prove my claims to them with existing sworn evidence. Hopefully at some point we can stop this kind of conduct from being carried on here or condoned by Canadian Courts.
I am somewhat amazed that no one in authority at BMO ever considered, that they had committed fraud and lied, and should discuss it with the victim now with sufficient evidence to show their wrongdoing. This could have been resolved quickly and relatively cheaply. Instead the criminal culture at BMO spent huge amounts of your money (if your client or customer of BMO’s) to fight it.
I will be pursuing BMO and the people who are the directing mind of the corporations, with evidence of crimes committed by the corporations and the employees they are responsible for.
I’ll be buying shares of BMO and will be at all of the shareholders meetings with my material and my questions. I will take all appropriate steps available to me as a shareholder to continue to get to the bottom of this. I will be doing further research on those individuals who are running this organization. I will not stop until I get an answer and explanation as to what went on, why they took the position they did. What they’re prepared to do to make the situation right. In some assurance, backed up by documentation, if they are taking steps to make sure this does not happen again.
If I or anyone in my family or my friends had money or investments or any business with BMO, given my experience I would withdraw it and place it in a safer institution. If I was a client of BMO , who did not remove their money, I would look very carefully at their paperwork and their reporting. Given my dealings with BMO and their lawyers I would have to say that they are completely untrustworthy. For an institution based on trust this is a complete failure. They have proven that there focus is to put their interests before the interests of the client
These companies have a protected trust and fiduciary duty to the public. I think it’s time they take it more seriously than they did in my case and recognize that they are not above the law.
The above is the opinion and experience of the author as a litigant and a victim.