Court of Appeal for Ontario
Date: 2017-12-14 Docket: C63249
Judges: Feldman, Fairburn and Nordheimer JJ.A.
Between
1268223 Ontario Limited Plaintiff (Respondent)
and
Estate of Po Fung, by its Trustee, Keng Fai Fong Defendant (Appellant) Defendant (Respondent and Appellant by cross-appeal)
Counsel
Eduardo F. Lam, for the appellant
Justin M. Jakubiak & Sara Hickey, for the respondent
Heard and released orally: December 14, 2017
On appeal from: the judgment of Justice Thomas R. Lederer of the Superior Court of Justice sitting without a jury, dated December 23, 2016.
Reasons for Decision
[1] The defendant appeals from the judgment awarding the sum of $1,070,000 to the plaintiff. The defendant also appeals the costs award made by the trial judge.
[2] The claim arises from an unfortunate dispute between a father and his daughter. The issue is whether the father or the daughter owned a commercial property located on Parliament Street in Toronto that was sold. The daughter says that the property was a gift to her from her father. The father says that the property was his. Indeed, the father took the sum involved from the proceeds of sale and refused to return it. The father has since passed away.
[3] The trial judge heard the evidence from a variety of parties including the daughter, three of her brothers and read-ins from the deceased father's examination for discovery. The trial judge concluded that the father had gifted the property to his daughter and thus the monies taken by the father belonged to her.
[4] In our view, there is no basis for the challenge to the trial judge's conclusion. The conclusion is based on factual findings made by the trial judge, all of which were open to him on the evidence. His conclusion that the property was gifted by the father to the daughter is supported by, among other facts:
The property was held by the plaintiff company and the daughter was the sole shareholder, officer and director of the company;
The father had assisted two of his sons to purchase commercial properties;
Two of the father's sons gave evidence that both their father and mother had referred to the property as belonging to the daughter;
None of the documentation surrounding the purchase of the property suggested that it was a purchase in trust for the father; and
It was the daughter who suggested that the property be sold.
[5] Contrary to the appellant's submission, these factual findings made by the trial judge met the three criteria for a gift set out in McNamee v. McNamee, 2011 ONCA 533, 106 O.R. (3d) 401 (C.A.).
[6] The appellant complains that the trial judge did not refer to any case law or statutory authority in the course of his reasons. The trial judge was not required to. There was no apparent dispute over the law that was applicable to this case. It was a trial that required the facts to be found, not the law that was to be applied.
[7] The merits appeal cannot succeed.
[8] In argument, counsel for the appellant clarified that the costs appeal was linked to success on the merits appeal. Consequently, we do not need to address it separately.
[9] The appeal is dismissed. Costs will be awarded on a partial indemnity basis in the amount of $15,000, inclusive of disbursements and HST, to the respondent.
"K. Feldman J.A."
"Fairburn J.A."
"I.V.B. Nordheimer J.A."