DATE: 20040607

DOCKET: C39217

COURT OF APPEAL FOR ONTARIO

RE:

C. WARREN GOLDRING (Plaintiff (Appellant)) – and – RICHARD PHILIP LOCOCO (Defendant (Respondent))

BEFORE:

LABROSSE, GOUDGE AND MACPHERSON JJ.A.

COUNSEL:

Evert Van Woudenberg

for the appellant

Edward M. Hyer and C. Kish

for the respondent

HEARD & ENDORSED:

June 4, 2004

On appeal from the judgment of Justice Victor Paisley of the Superior Court of Justice dated November 5, 2002.

A P P E A L B O O K E N D O R S E M E N T

[1] The trial judge’s task here was to find the true terms on which this advance was made and then to determine the legal effect of those terms.

[2] He performed the first step taking into account the evidence before him including the promissory note, particularly paragraph 3, and the marriage contract. He concluded that the money was advanced with an obligation to repay on demand in the event of separation or divorce.

[3] That finding is owed significant deference in this court. Indeed in our view it is well justified on the evidence. The trial judge properly considered all the evidence before him. He was not obliged to consider only the appellant’s evidence in determining what the terms were on which the advance was made.

[4] The legal effect of an advance on these terms is straightforward in the circumstances here. The condition for repayment did not arise. It is of no moment whether the transaction is labelled a conditional gift or a loan repayable in a circumstance which did not occur.

[5] In summary the reasons of Paisley J. are comprehensive, lucid and legally sound. The result he reached is entirely just.

[6] The appeal is dismissed with costs on a partial indemnity basis fixed at $10,100.27 inclusive of disbursements and G.S.T.