Friday, November 5, 2010

Burden of going forward in summary judgment

Kapy v. Hwang, 2010 ONCA 740, released today online, deals with the burden of proof in summary judgment cases. The moving party has the initial burden of showing their case in full; if they meet that burden then it falls to the responding party to adduce evidence of the defence. Both sides must put their best foot forward however the initial burden does rest with the moving party and if that burden is not discharged the motion will fail regardless of what the responding party does or does not adduce. The Court holds:

[3] The appellant recognizes that he did not place before the court any evidence to show that the landfill site posed a health risk. However, he submits the burden was on the vendor to file evidence to establish that it did not pose a health risk. This is because, he says, the vendor, as the moving party, bore the initial burden of showing there is no genuine issue for trial. He relied on the Supreme Court of Canada decision, Papaschase Indian Band No. 136 v Canada (A.G.), [2008] 1 S.C.R. 372, for the proposition that each side to a summary judgment motion, not just the respondent, must put its best foot forward.

[4] The appellant is correct that the vendor, as the moving party, bore the legal or persuasive burden to satisfy the court that there is no genuine issue for trial. The vendor accomplished that by affidavit evidence before the court that was sufficient to establish, prima facie, that the real reason the appellant failed to close the transaction was his inability to arrange the necessary financing. In fact, para. 26 of the appellant’s statement of defence constitutes an admission that this is so. In para. 26, the appellant pleaded that notwithstanding the certificates that were on title he was still willing to complete the purchase when he obtained the necessary funds.

[5] Once the vendor established financing was the reason the appellant failed to close the transaction, the evidentiary burden was on the appellant to lead evidence to show the landfill site raised a genuine issue for trial. He filed evidence that he refused to close the transaction because of his discovery of the nearby landfill site, but failed to lead any evidence that it posed a health and safety risk. Absent such evidence, it could not be said that the existence of the landfill site raised a genuine issue for trial.

1 comment:

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