DATE: 20000519
DOCKET: C32417
4500/95
COURT OF APPEAL FOR ONTARIO
RE: EDMUND WILKOSZ and STELLA WILKOSZ
(Plaintiffs/Respondents) vs. ANGELO AMATO
and BARBARA AMATO (Defendants/Appellant)
BEFORE: AUSTIN, MOLDAVER AND BORINS JJ.A.
COUNSEL: J. Allin
For the plaintiffs/respondent
D. Kirwin
For the defendants/appellant
HEARD: May 16, 2000
On appeal from the judgment of Kerr J. dated May 28, 1999.
E N D O R S E M E N T
[1] On March 10, 1995 the respondents issued a claim against
their daughter and the appellant, who was their son-in-law,
seeking the repayment of a loan which they claimed to have been
made to them for the purpose of acquiring land on which to build
their matrimonial home. The respondents obtained a default
judgment against their daughter and proceeded to trial against
the appellant.
[2] The appellant defended the claim on the ground that the
money was given to him and the respondents’ daughter as a gift.
The trial proceeded, correctly in our view, on the basis that the
circumstances under which the funds were advanced gave rise to a
presumption of advancement requiring the respondents to prove
that there had been a loan and not a gift of the money.
[3] The trial judge found as a fact that there had been a loan.
He found that the “agreement and understanding was that the money
would be repaid as and when the parties were financially able to
do so”. He awarded judgment to the respondents against the
appellant for $44,695.00, together with pre-judgment interest at
the rate of 5.6% per annum to be paid from September 10, 1995.
[4] The appellant has appealed from this judgment on the ground
that it was unreasonable, as it was not supported by the
evidence. We do not agree.
[5] In concluding that there was a loan which was to be repaid
Sas and when the parties were financially able to do so”, the
trial judge assessed the credibility of the witnesses and
accepted the evidence of the respondents and their daughter over
that of the appellant and his witnesses. Although his reasons
for accepting the evidence of the respondents’ daughter were
somewhat suspect, on balance, when his reasons for judgment are
read fairly as a whole, we are not persuaded that the trial judge
went wrong in his credibility assessment. Accordingly, there is
no reason to interfere with his findings which were open to him
on the evidence which he accepted.
[6] However, this does not end the matter. In finding in favour
of the respondents, the trial judge, who wrote detailed reasons,
failed to address whether the condition on which the loan was
repayable had been satisfied. Having found that the loan was
repayable when the appellant was financially able to repay it, in
awarding judgment against the appellant, he neglected to make a
finding that at some point in time the appellant became
financially able to repay the loan.
[7] Subsequently, however, the trial judge did find that the
appellant was financially able to repay the loan on September 10,
- He made this finding in the context of determining the
starting date for the calculation of pre-judgment interest under
s. 128(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43,
which provides that pre-judgment interest is to be calculated
from the date on which the cause of action arose. In our view,
this finding can be applied to compensate for the failure of the
trial judge to address this element of the respondents’ claim in
his reasons for judgment.
[8] The finding that the loan became repayable on September 10,
1995 raises an additional difficulty as this date was subsequent
to the issuance of the statement of claim on March 10, 1995. To
resolve this difficulty, counsel for the respondents moved to
amend the statement of claim to plead that the appellant was
financially able to pay the loan on September 10, 1995, relying
on rule 25.06(5). Counsel for the appellant did not respond to
this motion. Indeed, he made no submissions in reply to those of
counsel for the respondents.
[9] In the circumstances, we would allow the motion to amend the
statement of claim. We are satisfied that the issue reflected by
the amendment was litigated and that the appellant will not be
prejudiced by the amendment.
[10] As the cause of action did not arise until September 10,
1995, we find there to be no merit in the appellant’s submission
that the respondents’ claim was statute barred.
[11] For all of the above reasons, the appeal is dismissed with
costs.