Wednesday, July 31, 2013

Inference in the absence of evidence an error

Drawing an inference in the absence of any direct evidence is a material error:

1250264 Ontario Inc. v. Pet Valu Canada Inc. 2013 ONCA 279, [2013] O.J. No. 2012, at para 7:

[7]             In my view, the motion judge erred in two material respects: drawing the inference in the absence of any direct evidence and holding the CPVF to a standard of objectivity. The information disseminated amounted to no more than opinion as to the advisability of the lawsuit from a business perspective.  It did not purport to comment on the legal merits of the action. Information relating to the action was already available through neutral court approved notices. The communications here were simply acceptable intra-class debate. Therefore, the motion judge misapplied the fully informed and voluntary test enunciated in the jurisprudence. I would allow the appeal and set aside the order invalidating the opt-out notices. My reasons follow.

[69]       Appellate intervention is warranted where an inference of fact is not supported by any evidence and where an improper inference has a material effect on the outcome: see Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 22-23. The conclusion reached by the motion judge, at para. 75, that there is "a reasonable probability" that many franchisees decided to opt out due to "unfair pressure amounting to intimidation" is based on the inferences he drew. In my view, these inferences lack a valid evidentiary basis and, given their significance to the outcome of the motion, must be set aside.



No comments: