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.