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.
