Court File and Parties

CITATION: Khan v. Estate of Ahmed I. Khan, 2019 ONSC 4406 DIVISIONAL COURT FILE NO.: 472/18 DATE: 20190724

SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT

RE: PATRICIA SWAMY HERMAN KHaN, Appellant (Plaintiff) AND ESTATE OF AHMeD I. KhAN, BEBI WALI, FARZANA WALI, BADROODEEN KHAN (BY HIS LITIGATION GUARDIANS BIBI SPETH & INSAF KHAN), RIZA WALI AND FIESAL ABRAHIM AND BIBI HASMAT IBRAHIM, Respondents (Defendants)

BEFORE: Swinton, Backhouse, and A. O’Marra JJ.

COUNSEL: Alnaz I. Jiwa, for the Appellant (Plaintiff) A. Sean Graham for the Respondent (Defendant) Bebi Wali

HEARD at Toronto: July 22, 2019

Endorsement

[1] The appellant, Patricia Khan, appeals in part the order of Wilton-Siegel J. dated June 28, 2018 in which he dismissed her claim for $50,000 made against the respondent Bebi Wali.

[2] The trial judge found that the payment of $50,000 made by the deceased Ahmed Khan to the respondent, his sister, in July 2014 was repayment of a loan she had made to him in 1995 to assist him in buying a home at 129 Gowan Avenue in Toronto. The appellant disputes this finding, claiming that the $50,000 was a loan from Ahmed Khan to the respondent.

[3] This appeal raises no issues of law. This Court can intervene on an appeal with respect to findings of fact only if there is a palpable and overriding error. The appellant has not demonstrated any such error.

[4] The trial judge gave careful and detailed reasons explaining why he found that Ahmed Khan was the beneficial owner of 129 Gowan Avenue despite the fact that the title was held by the respondent and another brother. He concluded that the $50,000 payment to the respondent in July 2014 was likely repayment of monies she had provided to Ahmed Khan to assist him in buying the property in 1995 and in furtherance of an agreement between the two respecting the transfer of the title in the property to Ahmed Khan (see the reasons, paras. 141 and 158). The trial judge also concluded that there was no evidence upon which to find Ahmed Khan ever made a loan to the respondent, and there was no evidence to find that the cheque on which the appellant relied was evidence of a loan from Ahmed Khan to the respondent.

[5] Those conclusions were open to the trial judge on the evidence before him, and the inferences he drew were reasonable in what was a difficult case with conflicting and unreliable evidence. There is no basis for appellate intervention.

[6] Accordingly, the appeal is dismissed. Costs to the respondent are fixed at $3,500 plus HST on a partial indemnity basis, payable by the appellant personally.

Swinton J.

I agree _______________________________ Backhouse J.

I agree _______________________________ A. O’Marra J.

Released: July , 2019