COURT OF APPEAL FOR ONTARIO

DATE: 20000118

DOCKET: C30323

RE: EDWARD MARIO DEL GRANDE (Plaintiff/Appellant)

v. LYNN McCLEERY, ESTHER McCLEERY, and LISE
McCLEERY PEARSON (Defendants/Respondents)

AND RE: LYNN McCLEERY, ESTHER McCLEERY, and LISE
McCLEERY PEARSON (Plaintiffs by Counterclaim/Respondents)

v. EDWARD MARIO DEL GRANDE, RUST CHECK CANADA
INC. and LEAR CHEMICAL RESEARCH CORPORATION
(Defendants by Counterclaim)

BEFORE: CATZMAN, LASKIN and ROSENBERG JJ.A.

COUNSEL: Allan S. Halpert,
for the appellant

Leonard Ricchetti and Kathryn Manning,
for the respondents

HEARD: January 13, 2000

On appeal from the order of Mr. Justice MacKenzie dated July 3,
1998

E N D O R S E M E N T

[1] We agree with MacKenzie J. that the appellant does not meet
either of the two requirements in Barclays Bank Ltd. v.
Quistclose Investments Ltd., [1968] 3 All ER 651 (H.L.). The
monies were advanced by the appellant as a deposit and were used
for that very purpose. Moreover, the respondents had no notice
at the time the monies were given purportedly as a deposit that
they were impressed with a trust imposing any obligation on the
respondents to repay the money if the transaction failed to
close. To give effect to the appellant’s argument that later
notice would be effective to impose a trust in this case would
engage the very policy concerns to which MacKenzie J. referred in
his reasons for judgment.

[2] Accordingly the appeal is dismissed with costs.

Signed: "M.A. Catzman J.A."
"John Laskin J.A."
"M. Rosenberg J.A."