Burden of Proof (General): Difference between revisions
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[36] The Defendant agrees that the contract does not contain a term requiring the contractor to obtain a building permit but suggests this is because Jason expressly told the Defendant or his father that no permit was necessary. Although the Defendant did not plead or argue rescission based on misrepresentation, this representation is the basis of the defence in the main claim. It is also the basis for the Defendant’s own negligent misrepresentation claim. Therefore, <b><u>the Defendant’s entire case (defence and Defendant’s claim) depends on a finding of fact that the alleged statement was made by Jason. The burden of proof is on the Defendant to prove on the balance of probabilities that this representation was made. The Defendant has not met this burden.</b></u> | [36] The Defendant agrees that the contract does not contain a term requiring the contractor to obtain a building permit but suggests this is because Jason expressly told the Defendant or his father that no permit was necessary. Although the Defendant did not plead or argue rescission based on misrepresentation, this representation is the basis of the defence in the main claim. It is also the basis for the Defendant’s own negligent misrepresentation claim. Therefore, <b><u>the Defendant’s entire case (defence and Defendant’s claim) depends on a finding of fact that the alleged statement was made by Jason. The burden of proof is on the Defendant to prove on the balance of probabilities that this representation was made. The Defendant has not met this burden.</b></u> | ||
==[http://canlii.ca/t/20xm8 F.H. v. McDougall, 2008 SCC 53 (CanLII), | ==[http://canlii.ca/t/20xm8 F.H. v. McDougall, 2008 SCC 53 (CanLII), (2008) 3 SCR 41]== | ||
[40] Like the House of Lords, I think it is time to say, once and for all in Canada, that there is only one civil standard of proof at common law and that is proof on a balance of probabilities. Of course, context is all important and a judge should not be unmindful, where appropriate, of inherent probabilities or improbabilities or the seriousness of the allegations or consequences. However, these considerations do not change the standard of proof. I am of the respectful opinion that the alternatives I have listed above should be rejected for the reasons that follow. | [40] Like the House of Lords, I think it is time to say, once and for all in Canada, that there is only one civil standard of proof at common law and that is proof on a balance of probabilities. Of course, context is all important and a judge should not be unmindful, where appropriate, of inherent probabilities or improbabilities or the seriousness of the allegations or consequences. However, these considerations do not change the standard of proof. I am of the respectful opinion that the alternatives I have listed above should be rejected for the reasons that follow. | ||
Revision as of 01:23, 9 March 2020
Paramount Painting & Renovations Inc. v Shamuon, 2018 CanLII 99167 (ON SCSM)
[36] The Defendant agrees that the contract does not contain a term requiring the contractor to obtain a building permit but suggests this is because Jason expressly told the Defendant or his father that no permit was necessary. Although the Defendant did not plead or argue rescission based on misrepresentation, this representation is the basis of the defence in the main claim. It is also the basis for the Defendant’s own negligent misrepresentation claim. Therefore, the Defendant’s entire case (defence and Defendant’s claim) depends on a finding of fact that the alleged statement was made by Jason. The burden of proof is on the Defendant to prove on the balance of probabilities that this representation was made. The Defendant has not met this burden.
F.H. v. McDougall, 2008 SCC 53 (CanLII), (2008) 3 SCR 41
[40] Like the House of Lords, I think it is time to say, once and for all in Canada, that there is only one civil standard of proof at common law and that is proof on a balance of probabilities. Of course, context is all important and a judge should not be unmindful, where appropriate, of inherent probabilities or improbabilities or the seriousness of the allegations or consequences. However, these considerations do not change the standard of proof. I am of the respectful opinion that the alternatives I have listed above should be rejected for the reasons that follow.
