CITATION: Ahmed v. Ibrahim, 2016 ONSC 6430
DIVISIONAL COURT FILE NO.: 079/16 DATE: 20161013
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
AMAL AHMED
Plaintiff (Respondent)
– and –
AMINA IBRAHIM and MOHAMED ABDULKADIR
Defendants/(Appellants)
Rhyan Ahmed, for the Plaintiff (Respondent)
Beverly C. Jusko, for the Defendants (Appellants)
HEARD at Toronto: October 13, 2016
C. HORKINS J. (Orally)
[1] The appellants appeal from the judgment of Deputy Judge Martial dated January 19, 2016.
[2] The plaintiff, Amal Ahmed (“Plaintiff”) is the daughter of the appellant Amina Ibrahim (“Amina”). The appellant, Mohamed Abdulkadir (“Mohamed”) is Amina’s friend.
[3] At the time in question, the Plaintiff had been living with her mother for 27 years. They lived in Toronto Community Housing. The Plaintiff was studying to become a nurse. The Plaintiff had a young daughter of her own and her husband lived and worked in the United States.
[4] Amina supported herself with social assistance. She did not work. On November 29, 2013, the Plaintiff transferred $46,991.03 from her RBC bank account to Mohamed’s RBC bank account.
[5] The total amount consisted of money belonging to the Plaintiff and money belonging to her mother Amina.
[6] Amina had received money from the settlement of a motor vehicle accident claim and this amount was deposited in the Plaintiff’s RBC bank account. The judge accepted the Plaintiff’s evidence that $19,656.00 in the Plaintiff’s bank account belonged to the Plaintiff. The evidence was that the Plaintiff had money in her account from her student loans. The rest of the money in the Plaintiff’s bank account belonged to Amina.
[7] It was the Plaintiff’s evidence that her mother asked her to transfer the sum of $46,996.03 to Mohamed’s bank account and she agreed without questioning her mother. The Plaintiff testified as follows:
It was my mother, and to my, to my, discretion, I guess, I instilled a lot of trust in the fact, that I didn’t have to question her, and family loyalty, and I would expect to get my money back. So, I did not question her. I didn’t do it for him. He’s just married to her. Really, there’s no other relationship between me and him. I did it because of her.
Because I was under the impression that I would get my money back.
[8] The same day that Amina asked the Plaintiff to transfer the money, the Plaintiff, Amina and Mohamed attended together at the RBC bank. The bank records document the transfer of the money from the Plaintiff’s bank account to Mohamed’s bank account.
[9] Amina signed a Change Acknowledgment while at the bank. This document suggests that an unspecified amount of monies is being moved to Mohamed’s account and that Amina is the beneficiary. No one other than Amina signed the Change Acknowledgment.
[10] The Plaintiff and her child moved out of Amina’s home. The Plaintiff says that she was forced out and Amina testified that they had a dispute about the Plaintiff’s husband.
[11] The Plaintiff asked for return of her money. At the time of the transfer, she expected that it would be returned to her within one year. On every occasion that she asked for her money back, it was refused. By the time of the trial, all of the money that had been transferred to Mohamed’s bank account had been withdrawn and given to Amina.
[12] At trial, Amina testified that all of the $46,991.03 belonged to her. Further, Amina testified that she told Mohamed to take this money out of Mohamed’s account on several occasions and give it to the Plaintiff. She did not know what the Plaintiff did with the money.
[13] Amina denied that the money was held by her daughter, the Plaintiff, and then by Mohamed, so that Toronto Community Housing would not learn about her money.
[14] Mohamed testified that Amina approached him on November 29, 2013 “about the money” and he agreed to take all of this money from Amina and hold it in his account. It was transferred into his account the same day.
[15] Mohamed made withdrawals of the money from his account as requested by Amina. None of the money was used for Mohamed’s benefit. Mohamed testified that the money was used for the benefit of the Plaintiff.
[16] When Mohamed accepted the bank transfer, he was aware that he was agreeing to hold trust monies and that Amina was on social assistance.
[17] The Deputy Judge made extensive findings of fact. In essence, he preferred the Plaintiff’s evidence and rejected Amina’s evidence, that she owned all of the money; and that it was withdrawn from Mohamed’s account and given to her daughter, the Plaintiff.
[18] At paras. 62-63, the judge stated as follows:
[62] The defendant, Amina was by and large evasive in her testimony. She provided little detail of the expenses that she incurred on behalf of her daughter. While it would come as no surprise that family members would share in household expenses, no detail was provided to support the defendant’s position that transfers were made from the trust monies to her daughter.
[63] The Court finds that Amina’s testimony and documentation to be unconvincing, due to the lack of detail and her failure to provide clear answers. Her evidence is less credible than that of the plaintiff. The Court does not find however, that the defendant, Amina held the trust funds of her daughter, at the material time. The trust funds were transferred at her daughter’s request to Mohamed.
[19] The Deputy Judge reviewed the various documents and in particular the Plaintiff’s bank records. The Deputy Judge found that money in the Plaintiff’s account was comingled with Amina’s and specifically identified that $19,656.00 belonged to the Plaintiff.
[20] Mohamed agrees that as a bare trustee, he had a duty to account for the money and to hold it in trust and keep it secure.
[21] The appellants argue that the Deputy Judge erred in law or made an error of mixed fact and law in finding Mohamed liable.
[22] The Deputy Judge stated at paras. 64-65 as follows:
[64] The Court finds as a fact that the Change Acknowledgment at RBC is proof on the balance of probabilities that the defendant, Mohamed held trust funds.
[65] Based upon the documentary evidence filed by the plaintiff and her testimony that she initially held some of the monies on behalf of her mother and then transferred that money and her own money to her mother, Amina and then to Mohamed, in trust, the Court finds as a fact that the plaintiff is entitled to the return of $19,656.00 dollars from the defendant, Mohamed as trustee of her funds.
[23] Mohamed argues that this finding cannot stand because he testified that he believed all of the money belonged to Amina and that he acted properly in withdrawing money from the account on Amina’s instructions. Amina told him that her daughter needed the money.
[24] The standard of review on an appeal from a judge’s order is set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. On questions of law, the standard is correctness, on questions of fact, the standard is palpable and overriding error and on questions of mixed fact and law, there is a spectrum. Where there is an extricable legal principle, the standard of review is correctness. However, with respect to the application of the correct legal principles to the evidence, the standard is palpable and overriding error.
[25] The appellants do not dispute that Mohamed was a trustee of the money and they do not dispute his obligation as a trustee. Mohamed simply states that his duty was only to Amina because he believed that all of the money belonged to her.
[26] The Deputy Judge made clear findings of fact that attract deference. As a trial judge, he had the opportunity to assess the credibility of the parties. It is clear that he did not accept the version of events that Amina and Mohamed presented: specifically, that all of the money belonged to Amina and that it was paid out of Mohamed’s bank account for the benefit of the Plaintiff.
[27] While the judge’s findings of fact as they relate to Mohamed’s testimony are limited, the totality of the evidence and the reasons must be considered on this appeal. The Deputy Judge found at para. 63 that the money was transferred to Mohamed at the Plaintiff’s request. Part of this money belonged to her and there was no evidence that it was ever returned to her.
[28] In summary, for the reasons stated, I dismiss the appeal. The Deputy Judge made no errors of law and no palpable and overriding errors of fact.
COSTS
[29] I have endorsed the Appeal Book as follows: “For reasons delivered orally today the appeal is dismissed. The parties have agreed on costs. The respondent/plaintiff’s costs of this appeal are fixed at $5,000 all inclusive payable by the appellants.”
___________________________ C. HORKINS J.
Date of Reasons for Judgment: October 13, 2016
Date of Release: October 17, 2016
CITATION: Ahmed v. Ibrahim, 2016 ONSC 6430
DIVISIONAL COURT FILE NO.: 079/16 DATE: 20161013
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
AMAL AHMED
Plaintiff (Appellant)
– and –
AMINA IBRAHIM and MOHAMED ABDULKADIR
Defendants/(Respondents)
ORAL REASONS FOR JUDGMENT
C. HORKINS J.
Date of Reasons for Judgment: October 13, 2016
Date of Release: October 17, 2016