The following excerpt is from Kendall and Kendall v. Gambles Canada Ltd., Graham, Bowering and Landru, 1981 CanLII 2149 (SK QB):
I think it important to keep a careful eye on the nature of and the shifting onus of proof here. On the claim of false imprisonment, the plaintiffs must prove the imprisonment; once they have done that the onus shifts to the defendants to prove justification. In seeking to do that the defendants attempted to prove the theft and that goods, allegedly taken by the plaintiffs, were later found among the towels. But they failed to prove this. They did not meet their onus of proof. In Frey v. Fedoruk (supra) Cartwright, J., observed: It is well settled, that, while the rule may not be so strict as in criminal cases, in a civil case where a right of defence rests on an allegation of criminal conduct a heavy onus lies upon the party alleging it, and questions that are left in doubt by circumstantial evidence must be resolved in favour of innocence.
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