What is the evidentiary burden placed on the Respondent?

Ontario, Canada


The following excerpt is from Vincorp Financial Ltd, et al. v. Hope’s Holdings Inc., et al., 2010 ONSC 6819 (CanLII):

I conclude that the respondents have not met the evidentiary burden [See Note 4 below] placed on them by the evidence provided by the applicant. As I noted in Pulte v. Rokicki, supra, at para. 16, in taking "a hard look at the merits of the action", [See Note 5 below] the court may consider the behaviour of the responding party and the sufficiency of the respondent's evidence. A "bald assertion of facts" [See Note 6 below] or a bald denial is insufficient since otherwise "a genuine issue for trial is raised in every case in which a defendant swears that it does not owe a debt, notwithstanding overwhelming evidence to the contrary presented by the plaintiff". [See Note 7 below] Further, "[s]elf-serving affidavits that merely assert defences without providing some detail or supporting evidence are not sufficient to create a genuine issue for trial". [See Note 8 below] The motion judge must consider "the context of the record in this case". [See Note 9 below] The judge may consider the "many gaps, inconsistencies and contradictions in [the responding party's] evidence", [See Note 10 below] including "startling inconsistencies and implausible elements in [the responding party's] evidence and his failure to provide any support for his defence". [See Note 11 below] As noted above, most of these deficiencies are found in the evidence put forward by the respondents. [page552]

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