A B.C. businessman has lost another attempt — at the B.C. Court of Appeal — to have his son and former daughter-in-law repay $500,000 he gifted to them, in order to purchase a home in North Vancouver in 2010.
Avtar Singh Johal gave his son Harvinder Singh Johal and daughter-in-law Susan Frances Little the money to buy a $1.3-million home on Grand Boulevard.
But after the couple separated in 2018, Avtar claimed the money was a loan.
Avtar sued his son and ex-daughter-in-law in B.C. Supreme Court.
Although technically a defendant, Harvinder stated the money was a loan, aligning with his father’s claim.
Little claimed otherwise, pointing to a gift letter to Scotiabank to obtain a mortgage.
The couple had obtained mortgage financing for about $450,000 and after Little sold her condo, the couple had about $750,000 cash.
The home was purchased and the couple took out a $200,000 home equity line of credit thereafter, the court heard.
On Dec. 28, 2023, B.C. Supreme Court Justice Jacqueline Hughes sided with Little.
While the gift letter played prominently in Hughes’ decision, it was not the only factor.
“I am cognizant that the existence of a gift letter prepared by a parent to assist a child in obtaining mortgage financing is not determinative of the parent’s intent in advancing funds,” stated Hughes, noting case law showing such a letter is not the sole determinative factor in resolving such disputes.
Rather, “in the present circumstances, I find that since the funds were provided contemporaneously with the Scotiabank gift letter and, in the absence of contemporaneous documentation or discussions to the contrary, Avtar’s silence as to the nature of the funds is insufficient to negate the clear language of the letter.”
Avtar then appealed the decision to the B.C. Court of Appeal, claiming Hughes erred in failing to separate the intentions of himself as an individual and that of his company.
In a recently published judgment, three B.C. Court of Appeal judges agreed that Avtar was presenting new arguments; however, they noted “appellants cannot argue a position on appeal inconsistent with their position at trial.”
Furthermore, the appeal judges agreed that Hughes “extensively” reviewed the evidence and provided detailed reasons for her conclusion that a gift was intended.
“The appellants also challenge the judge’s treatment of the evidence in her analysis; however, they have not demonstrated any palpable and overriding error by the judge. Instead, their arguments invite this court to reweigh the evidence and reach different factual conclusions on the evidence. This is not the proper role for this court.”
