Court of Appeal for Ontario

Citation: Dagenais v. Vassel, 2012 ONCA 424

Date: 2012-06-20

Docket: C54401

Before: Doherty, Juriansz and Ducharme JJ.A.

Between:

Paul Dagenais

Plaintiff (Respondent)

and

Thelma Angela Vassel aka Linda Lee

Defendant (Appellant)

Counsel:

Zijad Saskin, for the defendant (appellant)

Clark Peddle, for the plaintiff (respondent)

Heard and released orally: June 13, 2012

On appeal from the judgment of Justice Lococo of the Superior Court of Justice, dated August 30, 2011.

Endorsement

[1] The trial judge ultimately did not accept the plaintiff’s claim that each and every cash withdrawal from his bank accounts during the relevant period went to fund his loan to the defendant. The trial judge was not satisfied that various small withdrawals went for that purpose and he specifically found that a withdrawal made after the date on which the defendant refused to acknowledge that she had borrowed money from the plaintiff was not related to the loan.

[2] A trial judge is not obliged to accept or reject the entirety of the case as presented for the plaintiff. A trial judge must make findings of fact based on his assessment of the entirety of the evidence. In the course of doing so, he or she may reject some but not necessarily all the evidence given by any witness, including a plaintiff. This trial judge did exactly that. He reviewed the plaintiff’s evidence carefully and while he was not prepared to accept the entirety of it, he clearly accepted the thrust of the plaintiff’s evidence that he had loaned a great deal of money to the defendant over a six-month period and that he had funded that loan through numerous cash withdrawals from his various bank accounts. The trial judge’s finding was not unreasonable and we must defer to it.

[3] The second ground of appeal concerns an alleged reversal of the burden of proof. The trial judge began his analysis by expressly stating that the plaintiff had the onus to prove both that the funds were advanced by way of a loan and that the loan was not repaid.

[4] We see nothing in the reasons which suggests a reversal of the burden of proof. The trial judge in assessing the appellant’s credibility properly took into account factors relevant to that assessment, including, for example, the appellant’s failure to produce her bank records. In doing so, the trial judge did not place any legal burden of proof on the appellant.

[5] In determining whether the plaintiff had met the burden of proof, the trial judge was obligated to weigh his evidence in the context of the entirety of the evidence, including any alternative explanations advanced by the defendant. The absence of any explanation on certain matters from the appellant and the absence of any evidence to support explanations that were offered were relevant in assessing whether the plaintiff had met his burden of proof. This ground of appeal cannot succeed.

[6] The third ground of appeal is a more general attack on the trial judge’s reasons as inadequate. The trial judge analyzed the evidence of both the defendant and plaintiff. His reasons clearly indicate how he came to prefer the evidence of the plaintiff over that of the appellant. In our view, the reasons are both logical and supported by the evidence. They reveal no basis upon which this court can interfere.

[7] The appeal is dismissed. Costs to the respondent are fixed in the amount of $6,000 “all in”.

“Doherty J.A.”

“R.G. Juriansz J.A.”

“Ducharme J.A.”