COURT OF APPEAL FOR ONTARIO DATE: 20230704 DOCKET: C70965

Feldman, Gillese and Huscroft JJ.A.

BETWEEN

Salvatore Falsetto Plaintiff (Appellant)

and

Salvatore Fillipo Falsetto a.k.a. Sam Falsetto, Falsetto Homes Inc., 99 Cartier St. Apartments Inc., Clarence Street Apartments Inc., and Bronson Ridge Apartments Inc. Defendants (Respondents)

Counsel: Raymond Murray, for the appellant Thomas G. Conway, Chris Trivisonno, and Abdalla Barqawi, for the respondents

Heard: April 19, 2023

On appeal from the judgment of Justice Robert J. Smith of the Superior Court of Justice, dated July 5, 2022, with reasons reported at 2022 ONSC 3701.

Gillese J.A.:

Overview

[1] Over a number of years, Salvatore Falsetto (“Salvatore”) transferred substantial sums of money and some properties to his son, Salvatore Fillipo Falsetto (“Sam”). [1] Sam effected some of the transfers as Salvatore’s attorney. Sam used the monies to acquire and develop properties in and around Ottawa.

[2] Years later, Salvatore sued Sam and several of his companies. He claimed that he transferred the monies to Sam so that Sam would acquire properties in trust for him and that Sam had wrongfully misappropriated the monies. Salvatore also claimed that Sam breached his fiduciary duties as Salvatore’s power of attorney. Salvatore sought damages of over $12 million for breach of fiduciary duty, breach of trust, and unjust enrichment, and orders for an accounting, equitable tracing, and disgorgement of profits.

[3] Sam defended the action on the basis that the transferred assets, with one exception, were gifts to him. Sam said that, before each transfer, he confirmed with Salvatore that Salvatore intended the transfers to be gifts to him so he could buy properties, renovate them, and sell them. The sole exception was the transfers of funds from Salvatore’s lines of credit, which Sam acknowledged had been loans and which Sam repaid with interest.

[4] After hearing from 17 witnesses over six weeks of trial, the trial judge found that the transfers were a series of gifts from Salvatore to Sam. In making these findings, the trial judge accepted Sam’s evidence and that of eight independent witnesses, all of whom testified that Salvatore had told them he intended to, or had made, the gifts to Sam.

[5] Salvatore appeals. He submits that the trial judge erred in failing to find that Sam was his fiduciary and had acted in breach of his fiduciary obligations by taking the monies and properties. He also submits that the trial judge erred in finding that the transferred assets were all gifts to Sam.

[6] For the reasons that follow, I would dismiss the appeal.

Background

Salvatore’s business background

[7] Salvatore was born in a small town in Italy and immigrated to Canada when he was 19 years old. After working at a foundry and then as a labourer, Salvatore began building homes with his brother Luigi, his uncle, and his cousin. While he worked in partnership with Luigi and later Luigi’s son, Albert, for many years, Salvatore also maintained his own independent rental properties, separate from those of the partnership. Salvatore worked hard and was very successful. He was an intelligent and experienced businessman in the renovation, development, and rental of properties. He was also very experienced and knowledgeable about dealing with lawyers and real estate agents because he entered into many legal agreements and completed many purchases and sales of properties.

[8] From the 1990s to 2011, Salvatore had a close relationship with his nephew Albert. He gave Albert signing authority over his bank accounts and a power of attorney to allow Albert to pay his bills and complete transactions related to their business. In about 2011, Salvatore sued Albert and Luigi, alleging that Albert had stolen money from him.

Salvatore’s family

[9] In 1963, Salvatore married. He and his wife had five children: four daughters and his son, Sam. When Salvatore and his wife separated in the mid-1980s, some of the children were over the age of majority. The children all remained with their mother. The separation and divorce were bitter. In the divorce proceedings, some of the children gave affidavit evidence that Salvatore treated his wife and daughters badly, and that he favoured Sam and treated him differently than he treated his daughters.

Salvatore and Sam reconcile

[10] After his parents’ separation, Sam was estranged from his father for several years. However, in 1998, when Sam was in his late teens, he and his father reconciled. Shortly after their reconciliation, Sam began to work with his father, where they developed a close bond. He helped his father maintain his rental properties and Salvatore taught Sam how to do tile patching and painting. Even though Sam worked with his father six days a week, Salvatore did not pay him for the work that he performed. Salvatore told Sam not to think he was “working for free” because “this is all yours. What I worked for I’m going to give it to you one day.” Around that time, Sam was operating a small snow-plow business. Salvatore did not pay Sam for the snow clearing he performed on Salvatore’s properties.

[11] In the early 2000s, Sam started a flooring business. Initially he worked out of his mother’s car. When Salvatore became aware of the situation, he gave Sam his GMC Safari van.

[12] Sometime around 2006, Sam started buying semi-detached homes. He repaired them in the evenings and sold them. Sam bought a property at 362 Whitby, intending to renovate and sell it, and also to sever and sell a lot. Sam took Salvatore to see the property and Salvatore advised Sam to tear down the house and build a new home. Sam followed his father’s advice and built a semi-detached home and a single-family home on the lot. He financed the project with a construction mortgage from CIBC. Salvatore did not contribute any funds for this property.

[13] In 2007, Sam incorporated Falsetto Homes Inc. Between 2007 and 2010, Sam built a number of successful projects around Ottawa, none of which were financed by contributions from Salvatore. Salvatore would visit Sam at his job sites almost every day.

[14] In 2010, Sam had a conversation with his father about a property at 376 Wilmont that he was thinking of buying. His father advised him to go ahead with the purchase. Salvatore then went with Sam to the bank, obtained a cheque for $475,000, and gave it to Sam so that Sam could complete the purchase.

[15] Between 2010 and 2016, Salvatore transferred other assets to Sam including: money from a settlement agreement; cheques from his personal accounts; and, title to properties. The transfers had a value of over $10 million. Sam effected some of the transfers as Salvatore’s attorney. Sam testified that before making each transfer, he verified with Salvatore that he intended to make a gift of the money or property to Sam.

Sam is Power of Attorney for Salvatore

[16] In August 2011, Salvatore met with his lawyer to update his will. The lawyer asked Sam if he would agree to be Salvatore’s power of attorney and Sam agreed. Sam was given no explanation about the obligations that were associated with him acting as Salvatore’s attorney.

[17] On February 22, 2012, Salvatore signed a power of attorney naming Sam as his attorney for management of property. Under its terms, Sam was limited to matters relating to one of Salvatore’s CIBC bank accounts.

[18] On February 27, 2012, Salvatore and Sam signed documents at the CIBC that included the bank’s standard form of power of attorney for property. The latter form specified that, on Salvatore’s behalf, Sam could carry out, with few exceptions, every banking transaction that Salvatore could complete with CIBC. Sam was given no explanation about any obligations resulting from him having signed the documents and accepted the role of Salvatore’s attorney. Sam understood that he and his father signed the CIBC documents so that Sam could pay Salvatore’s bills because Albert, Salvatore’s nephew, refused to continue doing that.

[19] On April 30, 2012, Salvatore signed another power of attorney prepared by his lawyer (the “Power of Attorney”). Sam was not present at this meeting, although he may have driven his father to it. The Power of Attorney revoked all Salvatore’s prior powers of attorney and gave Sam, as his attorney, broad powers. Sam testified that he was unaware of the Power of Attorney and that no one ever explained to him its terms or his obligations arising from it. Salvatore’s then-lawyer confirmed this, in his testimony.

[20] Salvatore’s lawyer mailed Salvatore his 2012 Will and the Power of Attorney. Salvatore took the envelope and gave it to Sam at one of his work sites. When Sam arrived home, he opened the envelope, looked at the Will, and filed the envelope. He testified that he did not notice the Power of Attorney and that the first time he became aware of it was during this legal proceeding.

The Issues at Trial

[21] While the main issue at trial was whether the transfers of money and property from Salvatore to Sam were gifts or loans, the court considered the other issues raised, namely, whether Sam: breached a fiduciary duty he owed to Salvatore as his power of attorney; exercised undue influence over Salvatore; and, was unjustly enriched by the transfer of funds and property from Salvatore.

The Decision Below

[22] The trial judge began his reasons for decision by setting out the factual background in this matter and his findings of fact. He recounted Salvatore’s background, both personal and professional. The trial judge also described, at length, the events surrounding many of the major items in dispute, including: 376 Wilmont; the Nelson Street property; the properties at 369 Winston, 566 Hilson, and 43 Willard; the Skeena properties; the use of Salvatore’s lines of credit; Salvatore’s various wills and powers of attorney; and, the history of the use of the settlement funds from Salvatore’s lawsuit against Albert and Luigi.

[23] The trial judge also summarized the evidence of a number of witnesses that he found demonstrated Salvatore’s intention to make gifts of the transferred monies and properties to Sam. One of these witnesses was Mr. D’Angelo, Salvatore’s lawyer in his action against Albert and Luigi. Mr. D’Angelo testified that Salvatore repeatedly stated his intention that the whole of the settlement funds was to be given to Sam so long as Sam paid the income tax on those funds, which Sam did. Mr. D’Angelo’s specific recollection was confirmed by a note he made at the mediation held for that proceeding. It was also confirmed by Mr. Crowe’s evidence. Mr. Crowe was Sam’s accountant. The trial judge found that both Mr. D’Angelo and Mr. Crowe were “very credible”, noting that they had nothing to gain in this litigation.

[24] The trial judge also accepted the evidence of Ms. Cathy Meade from the CIBC. Ms. Meade testified that she obtained Salvatore’s approval before each of the transfers were made to Sam from the settlement funds. Sam used these funds to acquire the three main properties in dispute in this proceeding.

[25] The trial judge recounted the evidence of several other independent witnesses who testified that Salvatore told them he intended to give money or properties to Sam or that he had already done so. They said that Salvatore spoke very negatively about his wife, daughters, and women in general. The trial judge found the evidence of these independent witnesses “very credible” and accepted that Salvatore expressed a clear intention to gift money or properties, or that he had already made gifts of money and properties to Sam.

[26] The trial judge also accepted Sam’s testimony that he used the same approach in respect of every transfer from his father: he would call his father or speak to him personally, explain what property he wanted to use the money for, and confirm his father’s consent. The trial judge found Sam to be “very credible” and that Salvatore was fully aware of the proposed use of his funds by Sam and intended to make gifts of the transferred assets to him. In contrast, the trial judge found that Salvatore had difficulty remembering recent events and his memory of past events was “not reliable”. At para. 133 of the reasons, the trial judge gave detailed findings for why he found Salvatore’s testimony at trial was neither credible nor reliable.

The transfers were gifts

[27] Next, the trial judge considered whether the transfers from Salvatore to Sam were gifts. In deciding this matter, the trial judge relied on Pecore v. Pecore, 2007 SCC 17, [2007] 1 S.C.R. 795, in which the Supreme Court held that when a parent gratuitously transfers property to their adult child, the law presumes that the child holds the property on resulting trust for the parent. To rebut the presumption, the adult child must proffer clear, convincing, and cogent evidence that: (1) the parent intended to make a gift of the property to the child, (2) the child accepted the gift, and (3) a sufficient act of delivery or transfer of the property occurred to complete the transaction.

[28] In terms of the intention requirement, the trial judge listed many reasons for finding that Salvatore intended to gift the funds and property to Sam. His reasons included:

(a) his finding that Salvatore’s trial testimony was not credible or reliable;

(b) his finding that Sam’s evidence was “consistent and credible” and corroborated by Ms. Meade’s evidence that she obtained Salvatore’s approval before each of the transfers was made to Sam from the settlement funds;

(c) with respect to the settlement fund transfers, Salvatore either personally obtained the bank drafts or authorized the CIBC to make the drafts payable to Sam’s company or his companies;

(d) he accepted the evidence of Salvatore’s lawyer that Salvatore instructed him to transfer the properties into Sam’s name;

(e) Salvatore’s intention to gift the settlement funds was corroborated by Mssrs. D’Angelo and Crowe, two “independent and very credible witnesses”;

(f) most of the transfers were made to Sam when he was the only child with whom Salvatore had a good relationship;

(g) Salvatore was a shrewd and experienced businessman and, had he intended to create a trust and appoint Sam as a trustee to hold the properties acquired for him, he would have documented the trust terms;

(h) Salvatore’s 2012 Will left all of his assets to Sam and most of the transfers to Sam were made in the 2012 to 2016 time period;

(i) Salvatore went personally to CIBC to withdraw the first transfer of $475,000 used by Sam to purchase 376 Wilmont, as confirmed by a memo prepared by Salvatore’s then-lawyer;

(j) the transfers to Sam were for large amounts (in the hundreds of thousands of dollars) and the withdrawals were shown on Salvatore’s bank statements – as a successful businessman, Salvatore would have noticed the withdrawals and objected if he was not in agreement, but he did not do so until 2016;

(k) Salvatore personally authorized the largest gifts to Sam from his flexible GIC at CIBC; and

(l) it did not make commercial sense for Sam to have agreed to a complex trust arrangement in the absence of any documentation supporting such an arrangement.

[29] In terms of the delivery requirement, the trial judge found that the transfers of titles to Sam of the Skeena properties and the cashing of the cheques or bank drafts were tangible proof that the gifts were delivered to Sam.

[30] In terms of the acceptance requirement, the trial judge found the evidence was “overwhelming” that Sam knowingly received and accepted the transferred monies and properties.

[31] Consequently, the trial judge found that Sam had discharged his onus and rebutted the presumption of resulting trust.

No fiduciary duty

[32] The trial judge next considered Salvatore’s submission that Sam owed him a fiduciary duty because he was named as Salvatore’s power of attorney and because he had given Sam signing authority on his bank accounts. Salvatore alleged that Sam breached his fiduciary duty by failing to register, in Salvatore’s name, the properties that Sam acquired with funds transferred to him by Salvatore.

[33] The trial judge rejected this submission. He accepted Sam’s testimony that he first became aware of the Power of Attorney, and its terms, when they were explained to him at the time this litigation commenced. He accepted Sam’s testimony that, when he initially agreed to serve as Salvatore’s attorney, he understood he had undertaken to make end of life care decisions for his father. He also accepted Sam’s testimony that he understood that, by having signing authority on Salvatore’s CIBC bank accounts, he was allowed to – and did – pay Salvatore’s bills. Sam said that Salvatore would bring his bills to him, Sam would leave them in a basket at his office, an employee would write the cheques, and Sam would sign and mail them.

[34] The trial judge found that Sam’s understanding of his obligations as an attorney was reasonable in the circumstances. Sam had graduated from Grade 12, worked primarily in the construction and real estate area, and no one had explained to him what obligations he might have undertaken as an attorney.

[35] Because a breach of fiduciary duty is an equitable claim, the trial judge said it would be “unfair and inequitable” for Sam to be subject to fiduciary duties without his knowledge or consent.

[36] The trial judge concluded on this issue by noting that Salvatore made the decision to make each gift and had the capacity to understand that he was making the gifts. He further found that Sam made no gift to himself, using the Power of Attorney, unless it was first specifically approved and authorized by Salvatore.

No undue influence

[37] The trial judge also concluded that Sam did not exercise undue influence on Salvatore to transfer the monies and property to him. He found that Salvatore made the transfers, as gifts, with “full free and informed thought.” He said that Salvatore demonstrated a “resolute strength of will” that would have been very difficult to influence. He also accepted the evidence of Salvatore’s sister that Salvatore was “intelligent, brave, strong willed”, and had been since he came to Canada. The trial judge further noted that between 2011 and 2014, when the gifts were made to Sam, Salvatore was living alone, completely independently, was able to drive, and freely chose where he went and with whom he spoke.

No unjust enrichment

[38] The trial judge rejected the claim of unjust enrichment because there was a valid juristic reason for Sam’s enrichment, namely, that Salvatore had made gifts of the monies and properties to Sam.

[39] Because Sam had rebutted the presumption of resulting trust and proved that the monies and properties were gifts to him, the trial judge found it unnecessary to deal with Sam’s limitation period defence.

[40] Accordingly, the trial judge dismissed the action with costs ordered against Salvatore.

The Issues

[41] On appeal, Salvatore submits that the trial judge erred in:

1. concluding that Sam was not a fiduciary and did not owe fiduciary duties to Salvatore; and
2. finding that the transfers to Sam were gifts.

Analysis

Issue 1: Sam was a fiduciary

[42] Salvatore submits that the trial judge erred in concluding that Sam was not a fiduciary and owed no fiduciary duties to his father. He argues that Sam became a fiduciary when he (1) agreed to be added as a joint account holder with Salvatore and (2) agreed to be named on the power of attorney over Salvatore’s property, regardless of whether Sam understood the ramifications of being Salvatore’s attorney. He contends that Sam breached his fiduciary duty by depleting Salvatore’s “lifetime wealth”.

[43] I accept this submission, in part.

[44] The first basis for Salvatore’s claim that Sam is a fiduciary is that Sam became one when he, Salvatore, placed one of his CIBC bank accounts in joint names with Sam. Pecore, coupled with the trial judge’s findings, are a full answer to this claim.

[45] Pecore provides that when a parent gratuitously transfers property to their adult child, the law presumes that the child holds the property on resulting trust for the parent. That is, the law presumes the child is a fiduciary. However, the presumption can be rebutted in whole or in part. So, for example, in Pecore, the presumption was rebutted in part because the court found that the father had added his adult daughter as a joint account holder with the intention of gifting to her the right of survivorship.

[46] As I explain below, on the findings of the trial judge, Sam rebutted the presumption of resulting trust in relation to the transfers Sam made from the bank account to which he held joint title with Salvatore. In so doing, Sam proved that the impugned transfers were gifts to him. Therefore, Sam breached no fiduciary obligations in making those transfers to his own benefit.

[47] Sam also effected transfers from other of Salvatore’s bank accounts in which Salvatore alone was on title. In effecting transfers from these accounts, Sam did so as Salvatore’s attorney. Sam knew he had Salvatore’s permission to exercise power over Salvatore’s property. In exercising that power, Sam was a fiduciary and subject to fiduciary obligations. If Sam was unsure of the source of his power, or the nature and type of obligations attendant on his exercise of power over Salvatore’s property, it was up to Sam to take the necessary steps to find out what obligations he was subject to.

[48] For these reasons, I accept Salvatore’s submission that Sam was a fiduciary both in respect of Salvatore’s bank accounts and in his use of the Power of Attorney, and the trial judge erred in law in finding otherwise.

[49] However, in my view, the trial judge made no error in concluding that Sam did not act in breach of his fiduciary obligations. On the trial judge’s findings, Salvatore authorized all of the impugned transfers. Therefore, when Sam acted as attorney to transfer assets to himself, he was fulfilling Salvatore’s instructions. Where a donor has capacity, the attorney is primarily informed by the donor’s instructions, and the attorney is not in breach of their obligations if they follow those instructions.

[50] In Richardson (Estate Trustee of) v. Mew, 2009 ONCA 403, 96 O.R. (3d) 65, at para. 49, this court referred to the following description of the prohibition against using a power of attorney for personal profit, citing Egli v. Egli, 2004 BCSC 529, 28 B.C.L.R. (4th) 375, at para. 82, aff’d 2005 BCCA 627, 262 D.L.R. (4th) 208:

It is the attorney's duty to use the power only for the benefit of the donor and not for the attorney's own profit, benefit or advantage. The attorney can only use the power for his or her own benefit when it is done with the full knowledge and consent of the donor. [Emphasis added; citations omitted.]

[51] In this case, as the trial judge found, Salvatore had full capacity and knowledge, and he consented to the impugned transfers. In fact, Salvatore instructed his attorney, Sam, to make the transfers.

[52] In these circumstances, despite being a fiduciary, Sam was entitled to use his powers as attorney to effect the transfers for his own benefit.

Issue 2: No error in the trial judge’s determination the transfers were gifts

The Standard of Review

[53] Salvatore submits the trial judge made numerous errors in determining that, in respect of certain of the transfers, Sam had proven the three legal requirements for a gift. In considering the alleged errors, this court must review the trial judge’s determinations using the following standards: questions of law are reviewable on a correctness standard, questions of fact are reviewable on a standard of palpable and overriding error; and, for questions of mixed fact and law, there is a spectrum. Where there is an extricable legal error, 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: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 26-37.

[54] A palpable error is one that is “not reasonably supported on the evidence” and it is overriding when it impacts on the trial judge’s determination: Farsi v. Da Rocha, 2020 ONCA 92, 444 D.L.R. (4th) 197, at para. 35.

Donative Intention

[55] In terms of the intention requirement, Salvatore submits the trial judge: failed to investigate his actual intent at the time of each transfer; made no findings that could support his determination that the cash Sam withdrew by means of a cheque prior to the settlement mediation was a gift; erroneously found that the evidence of CIBC and Ms. Meade supported Sam’s testimony; failed to assess whether the transfers made commercial sense for Salvatore; wrongly considered Salvatore’s failure to object to the transfers of funds from his bank account because Salvatore did not look at his banking information at the relevant times, instead leaving that to Sam who had taken over his banking transactions; and, erred in concluding that Salvatore’s failure to proffer evidence of a loan or a request for repayment was demonstrative that the transfers were gifts.

[56] I do not accept this submission.

[57] Salvatore concedes that the trial judge correctly set out the relevant legal principles. He also concedes that the trial judge found he was not credible, that Sam was credible, and that credibility findings warrant “significant deference”.

[58] Nonetheless, Salvatore asks this court to set aside the impugned findings of the trial judge and substitute its view of the evidence on donative intent. In effect, Salvatore is asking this court to re-weigh the evidence and re-try the case – but that is not the role of an appellate court. As I explain above, this court is not to substitute its findings of fact for those of the trial judge absent palpable and overriding error. I see no such errors.

[59] The trial judge made detailed factual findings about the timing, circumstances, and nature of the interactions between Salvatore and Sam to support his finding of donative intent. In the circumstances of this case, he did not need to examine each of the transactions individually once he accepted Sam’s evidence that, for each and every transfer, Sam confirmed with Salvatore that Salvatore intended the transfer to be a gift to Sam. Further, the other impugned findings are not the result of palpable errors because they were fully available to the trial judge on the record: the evidence of independent witnesses supported the trial judge’s finding that Salvatore made a gift of the settlement funds to Sam; Ms. Meade’s evidence corroborated Sam’s because she testified that she always obtained Salvatore’s approval before each transfer was made through which Sam acquired the three main properties with the settlement funds; the withdrawals from Salvatore’s bank account were of significant sums, yet he never challenged Sam about them until he started this litigation; and, in light of Salvatore’s extensive business experience and acumen, the trial judge cannot be said to have erred in finding significance in Salvatore’s failure to proffer any evidence of a loan or request for repayment from Sam.

[60] Not only were the impugned findings reasonably available to the trial judge on the evidence, in my view, they were inescapable.

Delivery

[61] In terms of the delivery requirement, Salvatore submits the trial judge failed to properly consider that there was no delivery for transfers carried out by cheque. He says he never delivered the cheques to Sam; he had simply granted Sam access to his bank accounts and his cheques.

[62] I do not accept this submission. The trial judge’s findings are a full answer to it. For the gifts of property, delivery occurred when Sam took title to the properties and, for the gifts of money, as the trial judge stated, “the cashing of the cheques or bank drafts are tangible proof that the gifts were delivered to Sam”: see Teixeira v. Markgraf Estate, 2017 ONCA 819, 137 O.R. (3d) 641, at para. 46.

Acceptance

[63] In terms of the acceptance requirement, Salvatore submits the trial judge made two errors. The first alleged error relates to the $6.5 million settlement proceeds. He points to Sam’s evidence that, in February 2014, Sam rejected Salvatore’s offer to give him that money because at that time there was no property Sam wanted to buy. Salvatore argues that, as a result of Sam’s refusal to accept the gift when Salvatore made the offer, the offer “expired”. The second alleged error relates to the proceeds of sale of 315 Nelson of approximately $2.2 million. On this matter, Salvatore points to Sam’s testimony that he asked Salvatore if he could sell it and Salvatore said, “It’s yours, do what you want”. However, after Sam sold the property, the proceeds were paid to Salvatore who deposited them into his bank account where it remained for nine months before Sam took it. Thus, Salvatore contends, the trial judge erred by failing to address the fact that the intention to gift (if there was one) was “spent” by the time Sam received the money.

[64] I see no merit to this submission. The trial judge was well aware of the need to consider “contemporaneous” evidence of donative intention. At para. 131 of the reasons, he relied on Pecore for precisely that proposition of law.

[65] The trial judge found the evidence that Sam accepted the gifts from Salvatore “overwhelming”. I agree. Sam accepted the gifts and used them as he had promised Salvatore he would: to buy, renovate, and sell properties. The trial judge did not have to reconcile the fact that Sam initially refused to accept his father’s proposed gifts of the settlement monies and proceeds of sale of 315 Nelson with his later acceptance of those gifts. On the trial judge’s findings, for each and every transfer, Sam confirmed with his father that he intended to make a gift to him of the asset in question. Although Sam initially refused to accept those gifts, it did not preclude Sam from later confirming with his father that he still intended to make the gifts. Salvatore’s confirmation was contemporaneous evidence of continuing donative intention in respect of both transfers and it was open to Sam to accept the “new” offers.

Disposition

[66] For these reasons, I would dismiss the appeal with costs to the respondents at the agreed-on sum of $25,000, plus disbursements and HST.

Released: July 4, 2023 “K.F” “E.E. Gillese J.A.” “I agree. K. Feldman J.A.” “I agree. Grant Huscroft J.A.”

[1] For ease of reference, I refer to the parties by their first names.