IN THE SUPREME COURT OF BRITISH
COLUMBIA

Date: 20131010

Docket: 1241070

Registry:
Prince George

Between:

Jack Richard Clark

Plaintiff

And

Janice Anne
McKinney

Defendant

Before:
The Honourable Mr. Justice R.S. Tindale

Reasons for Judgment

ISSUE

[1]            
 The plaintiff in this trial seeks the repayment of a $30,000 loan that
he made to the defendant, his sister.

[2]            
There is no dispute that the plaintiff did in fact loan the defendant $30,000.
The issue on this trial is whether or not the plaintiff forgave the loan.

BACKGROUND

[3]            
The plaintiff, who is retired and normally resides in Ontario, was
visiting his ailing mother and his siblings, which included the defendant, in
Quesnel, British Columbia in August of 2011.

[4]            
On or about August 17, 2011 the defendant asked the plaintiff for
$30,000 to buy a new vehicle. The plaintiff agreed and provided a bank draft in
the amount of $30,000 to the defendant on August 18, 2011.

[5]            
The parties’ mother began living with the defendant in 1986. She was
employed up until the 1990s. The defendant began looking her mother in 2011
when she fell ill.

[6]            
The parties’ mother died on April 15, 2012.

[7]            
The plaintiff, through his lawyer, sent a demand letter for the $30,000
to the defendant on March 27, 2012. No monies have been paid by the defendant
to the plaintiff.

[8]            
This action was commenced on May 29, 2012.

THE EVIDENCE

The Plaintiff

[9]            
The plaintiff testified simply that he loaned the defendant $30,000 and
that the terms of repayment of the loan were not discussed at that time. He
denied that he forgave the loan. In particular, he denied having any
conversations with the defendant, her friend Kelly Tolufsen or the defendant’s
husband Walden McKinney in which he said that the loan was forgiven.

[10]        
On cross-examination he agreed that the defendant did approach him about
making payments on the loan. He testified that he told the defendant that they
would discuss repayment after their mother passed away.

[11]        
The plaintiff agreed that he bought a gym membership for the defendant
as well as a one day ski pass for her.

[12]        
The plaintiff also agreed that he purchased two air machines for his
mother as well as paying her funeral expenses. He also paid for a nurse to care
for his mother near the end of her life.

[13]        
The plaintiff retired because of a serious motor vehicle accident that
he was involved in. He received a considerable amount of money as a result of
that accident.

[14]        
The plaintiff testified that he only spoke to the defendant one time
about repaying the loan and that was outside on the defendant’s back steps of
her residence in Quesnel. That is when he told her to wait until after their
mother passed away to discuss repayment. The plaintiff also agreed that this
was a no interest loan.

[15]        
The plaintiff testified on cross-examination that by February 2012 his
relationship with the defendant was strained because he had a disagreement with
the defendant as to how she was caring for their mother.

[16]        
The plaintiff agreed on cross-examination that he was using marijuana in
2011 although he disagreed that he had any problems with his memory.

[17]        
That was the evidence for the plaintiff.

The Defendant

[18]        
The defendant testified that she did ask the plaintiff on August 17,
2011 for a loan of $30,000 which he gave her by way of a bank draft on August
18, 2011.

[19]        
The defendant testified that when she asked him about making payments on
the loan the plaintiff told her "don’t worry about it, forget about
it". The defendant took this to mean that she did not have to pay the
money back.

[20]        
Kelly Tolufsen testified that she was a friend of the defendant and that
she had met the plaintiff on a couple of occasions.

[21]        
She testified that in the summer of 2011 the defendant purchased a new
vehicle and that she had a conversation about that with the plaintiff in
February of 2012. She said that the two of them were sitting in the defendant’s
gazebo. She said that she mentioned to the plaintiff that the defendant’s
payments for her vehicle must be pretty high because it’s a nice vehicle. She
testified that the plaintiff said the following "they don’t have to worry
about that, it’s taken care of".

[22]        
The last witness for the defendant was her husband Walden McKinney. He
testified that he went to a hockey game in 2012 with the plaintiff and he asked
the plaintiff about repayment of the loan. Mr. McKinney testified that the
plaintiff told him that it was a gift to mother so she could go back and forth
for her treatment.

[23]        
Mr. McKinney clarified that when the plaintiff said mother he took that
to mean the mother of the plaintiff and defendant.

[24]        
That was the evidence for the defendant.

DISCUSSION

[25]        
The defendant argues it is clear on the evidence of her witnesses that
the plaintiff forgave the loan, thus creating a gift to the defendant.

[26]        
In order to establish a gift, two elements must be present: (a) The
donor must have intended to make a gift and: (b) The donor must deliver the
subject matter of the gift to the donee; see Singh Estate v. Shandil,
2007 BCCA 303.

[27]        
The onus to prove the gift is on the donee and the standard of proof is
on the balance of probabilities, Singh supra.

[28]        
The plaintiff did in fact deliver to the defendant $30,000. There is no
dispute that at the time that the money was delivered to the defendant it was a
loan.

[29]        
In my view the evidence of the defendant as to what the plaintiff said
to her regarding the loan is at best ambiguous. She said that the plaintiff
told her "don’t worry about it, forget about it". It is not clear on
the evidence as to what was said that elicited that response. Nor is it clear
that this means that the plaintiff changed his mind about the nature of the
$30,000 loan. Quite frankly this evidence accords with the plaintiff’s evidence
that he did not want to talk about repayment of the loan until after his mother
passed away.

[30]        
Equally ambiguous is the evidence of Kelly Tolufsen. The phrase
"they don’t have to worry about that, it’s taken care of" could mean a
number of things such as the defendant does not have to worry about large bank
payments as this was a no interest loan.

[31]        
I do not accept the evidence of Walden McKinney as he must be mistaken about
what was said. This was never a loan or gift to the plaintiff’s mother. I
reject his evidence with regard to what was discussed by the plaintiff at the
hockey game in February of 2012.

[32]        
I accept the plaintiff’s evidence that this was a loan and that he never
intended it to be anything else.

[33]        
The defendant has not discharged the onus of proving that the plaintiff
forgave the loan, thus creating a gift to the defendant.

CONCLUSION

[34]        
The plaintiff has proved its case on a balance of probabilities.

[35]        
I grant judgment against the defendant in the amount of $30,000 in
favour of the plaintiff.

[36]        
The plaintiff also seeks interest pursuant to the Court Order
Interest Act, R.S.B.C. 1996, c. 79. The evidence on this trial is clear that
there was an agreement between the parties that there would be no interest
payable on this loan. As a result of that agreement I decline to make any order
pursuant to the Court Order Interest Act

[37]        
The plaintiff shall have his costs of this trial on Scale B.

“R. S. Tindale, J.”