Burns Estate v. Mellon

June 17, 2008 Hull & Hull LLP Litigation Tags: , , , , , 0 Comments

Yesterday I talked about Section 13 of the Evidence Act (Ontario), which mandates that before someone can bring a claim by or on behalf of an Estate, he or she must have some corroborative evidence.  The standard of evidence required was dealt with by the Ontario Court of Appeal in Burns Estate v. Mellon.

The Estate Trustees, who were arguing that a transfer to a friend of the deceased during lifetime ought to be reversed because it was subject to a resulting trust, argued that the recipient’s defence that the transfer was a gift ought to be defeated because her corroborative evidence did not remove all reasonable doubt that she had received a gift.  The Court of Appeal agreed with the recipient, finding that the strength of evidence need only succeed on a balance of probabilities:

In principle, I see no justification for applying the criminal standard in a civil action.  A criminal prosecution differs fundamentally from a civil action, and the criminal standard serves different ends and operates on different assumptions from the civil standard.  (See R. v. Schwartz, [1988] 2 S.C.R. 443 (S.C.C.), at 462, per Dickson C.J.C. and Lamer J.)  Moreover, nothing in s. 13 itself suggests that the Legislature intended to displace proof on a balance of probabilities with proof beyond a reasonable doubt.

Thanks for reading.

Sean Graham

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