Burden of Proof (General)

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.

McGrath v Franz, 2017 CanLII 21771 (ON SCSM)

31. The plaintiff’s submission is that it defies logic for the defendant to suggest that the plaintiff was holding the property from 2004 on a resulting trust. The evidence shows that there was a $38,000.00 loan made to the defendant by the plaintiff to be repaid when the property was sold. There was an element of trust that there would be compliance with this verbal arrangement given it was his son-in-law, that they could not purchase the property without the plaintiff’s contribution, that the plaintiff was giving up as an outright gift his entire capital in return for living in a rental property for which he had worked all his life. Furthermore, to consider it a gift in the absence of a juristic reason for doing so unjustly enriched the defendant at the plaintiff’s expense. The law presumes a loan unless defendant can prove it was a gift and the burden of proof shifts to the defendant. The Statute of frauds does not apply because it was not a conveyance in land or a transmission of interest in land, which must be in writing. Finally, the action was commenced on time as there was a demand for payment in January 2013, followed by the sale of the property on February 17, 2013, the date upon which the debt became due.

Preferred Credit Resources Limited v Harding, 2013 CanLII 61481 (ON SCSM)

[28] The simple issue in this matter is whether the Defendant is responsible for the credit card debts under review. I find he is not liable for same.

[29] Stripped to its essentials, this is first and foremost a burden of proof case. Credit card cases unfortunately consume a large share of the work in Small Claims Court, be it assessments or trials. Inevitably part of the proof offered is the credit card application. It was not produced.

[31] The signature on the credit card application would go a long way to establishing who sought the credit cards: the Defendant [as the Plaintiff assumes] or the Defendant’s wife [as the Defendant assumes]. The Plaintiff is seeking to make the Defendant responsible for the debt. It is the Plaintiff’s burden of proof.

1369349 Ontario Inc. v. Yanch Heating and Air conditioning, 2012 ONCA 182 (CanLII)

[2] The appellant advances several grounds of appeal. First, it submits that the respondent was required to provide an explanation, based on evidence, for the cause of fire in order to rebut the presumption of negligence suggested by the experts.

[3] The appellant next submits that the trial judge ignored, misapprehended or misunderstood the jointly retained expert’s evidence. In the alternative, it argues that the reasons of the trial judge for rejecting this evidence and accepting the respondent’s denial of negligence are inadequate.

[4] We reject these grounds of appeal.

[5] The task of the trial judge in this case was to decide on all the evidence, whether it could be fairly inferred that the fire was the result of the respondent’s conduct. If a review of the evidence revealed that the cause of the fire remained unknown, then the required burden of proof upon the plaintiff would not have been satisfied and the trial judge would be required to dismiss the action. That is what occurred in this case.

Mohammed v Mangat, 2019 CanLII 127222 (ON SCSM)

[26] As with any action in Small Claims Court, a Plaintiff has the burden of proof, to prove that on a balance of probabilities, his/her case/claim is true. This means that the Court must be satisfied that on the evidence before it, the occurrence of an event more than likely transpired, than not. This requires a responsibility to present a case effectively and to ensure credible evidence, including oral testimony, be used to support the claim for damages.

Moore v Morad, 2013 CanLII 105063 (ON SCSM)

38. In this connection, plaintiff’s counsel advanced a rather innovative and bold argument based on an expansionary approach to the juristic reason for denying or allowing unjust enrichment set out in paragraphs 44 and 45 of the Supreme Court of Canada case of Garland v. Consumers’ Gas Co., 2004 SCC 25 (CanLII), (2004) SCJ No. 21, where it was described in the following words:

44 But recalling that [unjust enrichment] is an equitable remedy that will necessarily involve discretion and questions of fairness, I believe that some redefinition and reformulation is required. Consequently, in my view, the proper approach to the juristic reason analysis is in two parts. First, the plaintiff must show that no juristic reason from an established category exists to deny recovery… If there is no juristic reason from an established category, then the plaintiff has made out a prima facie case under the juristic reason component of the analysis.

45 The prima facie case is rebuttable, however, where the defendant can show that there is another reason to deny recovery. As a result, there is a de facto burden of proof placed on the defendant to show the reason why the enrichment should be retained. This stage of the analysis thus provides for a category of residual defence in which courts can look to all of the circumstances of the transaction in order to determine whether there is another reason to deny recovery. (emphasis added)

Schalk v Sitel, 2014 CanLII 10385 (ON SCSM)

In an article by Stacey Reginald Ball, in Canadian Employment Law, loose leaf, Volume 1 (Toronto: Thomson Reuters, 2013) the author in his article dated March 2011 lays the burden of proof in this area on the employer. If the defendant is able to show the plaintiff failed to take reasonable efforts to mitigate and that a position was available, then damages will be reduced.

I have concluded the defendant fails on this issue.

1651663 Ontario Inc (Property Care is a Briese) v Latner, 2011 CanLII 100793 (ON SCSM)

The burden of proof is to the civil standard by a preponderance of evidence, or a balance of probabilities. In other words, does the evidence before the court establish that it is more likely than not that the plaintiff has succeeded in its claim for compensation? In Landry v. Pratt & Whitney Canada, (1996) A.J. No. 661 (Q.B.) at par. 16, Yanosik J. stated: “the task is left to good common sense and the accumulated wisdom and experience of years of ordinary, everyday living.” I have considered the oral evidence given by the witnesses called and the documentary materials made exhibits at trial. I have also considered the inherent probabilities of the situation and applied common sense and ordinary life experience to the situation as per Landry, supra.

Macro-universe Enterprises v Floorever Interiors Inc., 2016 CanLII 63514 (ON SCSM)

21 Although in a case of fraud a higher standard of probability is required, the burden of proof remains on the plaintiff "on a balance of probabilities" (see Ali v. Triple 3 Holdings Inc., (2002) O.J. No. 4405 (O.C.A.)). However, the court may draw a negative inference from the defendant's failure to provide a handwriting expert to support his allegation that his signature was forged (see Bank of Montreal v. Karimian, (2003) O.J. No. 14 (S.C.J.), and Otto Pick & Sons Seeds Ltd. v. W.D. Thomson Enterprises Ltd., (1989) N.B.J. No. 706 (New Brunswick Court of Queen's Bench)).”

Lucy v Kitchener (City), 2013 CanLII 57611 (ON SCSM)

46. The plaintiffs submitted that there should be no finding of contributory negligence or alternatively a reduction of 10 to 15%. The defendants’ primary position was that the accident was entirely Mrs. Lucy’s fault. The burden of proof of contributory negligence is on the defence.

Danian v Baugh, 2016 CanLII 16475 (ON SCSM)

In order to establish that a party to a contract acted dishonestly one must find that the party lied or otherwise knowingly misled the other party with respect to matters directly linked to the performance of the contract. The burden of proof is upon the party alleging the breach of the duty to act honestly.

Katz v Things Remembered Canada Inc., 2018 CanLII 44839 (ON SCSM)

[28] The burden of proof is upon the defendant to establish just cause. To determine whether just cause exists requires a factual inquiry using a contextual examination of the nature and circumstances of the employee’s misconduct. This was discussed in Dowling v. Ontario (Workplace Safety & Insurance Board), 2004 CanLII 43692 (ON CA), (2004) O.J. No. 4812. The Ontario Court of Appeal stated at paragraphs 49 to 53:

49 Following McKinley, it can be seen that the core question for determination is whether an employee has engaged in misconduct that is incompatible with the fundamental terms of the employment relationship. The rationale for the standard is that the sanction imposed for misconduct is to be proportional -- dismissal is warranted when the misconduct is sufficiently serious that it strikes at the heart of the employment relationship. This is a factual inquiry to be determined by a contextual examination of the nature and circumstances of the misconduct.

50 Application of the standard consists of:

1. determining the nature and extent of the misconduct;

2. considering the surrounding circumstances; and,

3. deciding whether dismissal is warranted (i.e. whether dismissal is a proportional response).

51 The first step is largely self-explanatory, but it bears noting that an employer is entitled to rely on after discovered wrongdoing, so long as the later discovered acts occurred pre-termination. See Lake Ontario Portland Cement Co. v. Groner, 1961 CanLII 1 (SCC), (1961) S.C.R. 553.

52 The second step, in my view, is intended to be a consideration of the employee within the employment relationship. Thus, the particular circumstances of both the employee and the employer must be considered. In relation to the employee, one would consider factors such as age, employment history, seniority, role and responsibilities. In relation to the employer, one would consider such things as the type of business or activity in which the employer is engaged, any relevant employer policies or practices, the employee's position within the organization, and the degree of trust reposed in the employee.

53 The third step is an assessment of whether the misconduct is reconcilable with sustaining the employment relationship. This requires a consideration of the proved dishonest acts, within the employment context, to determine whether the misconduct is sufficiently serious that it would give rise to a breakdown in the employment relationship.