



COURT OF APPEAL FOR ONTARIO

CITATION: 1268223 Ontario Limited v. Fung Estate, 2017 ONCA
    1003

DATE: 20171220

DOCKET: C63249

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)

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 fathers 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 judges 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 fathers 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 appellants 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.


