Administrative - Onus. Monteiro v. CEO Financial Services Regulatory Authority
In Monteiro v. CEO Financial Services Regulatory Authority (Div Court, 2023) the Divisional Court considered pension claims by a long-term night-school teacher lacking credentials. Here the court considers who bears the evidentiary onus in an administrative procedure:
Issue No. 2: Did the Tribunal err in law in finding that the Appellant bore the legal onus of proving that he had been granted an LOP for each year in which he claimed Credits for the Services?
 The Appellant claims that the Tribunal improperly shifted the onus of proof of his entitlement to Credits onto him, rather than place the onus onto the CEO to disprove his entitlement. He relies on the fact that boards of education such as the TBE, were required to apply to the Minister of Education for LOPs for non-qualified teachers, not the teachers themselves. Thus, the Appellant contends that he should not have to prove that he was granted an LOP for each year that he offered unqualified teaching services. Rather, the OTPPB should have to prove the negative, that he did not receive the LOPs.
 That argument does not align with settled law on the point. As Macaulay, Sprague and Sossin write in Practice and Procedure Before Administrative Tribunals, “[t]he general rule is that whoever asserts a proposition bears the onus of proving it”. An exception may occur when “the other side … actively has done something to block the ability of the first person to satisfy the legal burden”. There was no evidence before the Tribunal that TBE or any other publicly funded school board for which the Appellant provided unqualified teaching services did anything of the sort. In fact, the record demonstrates that the TDSB made three different sets of searches for the records that the Appellant sought. The TDSB described two such searches as “thorough” and another as “exhaustive”.
 This court affirmed Hunte v. Ontario (Superintendent of Financial Services), a decision of the Tribunal that the person claiming entitlement to pension benefits has the burden of proving that entitlement on a balance of probabilities. The Tribunal wrote:
60 We do not accept these submissions. The fundamental burden of proof that an applicant has an entitlement from a pension plan is on that applicant. That burden does not shift. It is possible, of course, that if the evidence of the party bearing the ultimate burden of proof raises a prima facie case that must be answered, what is usually called "the evidentiary burden" may shift to another party in the course of a hearing. But in our view, the Applicant has failed to adduce evidence sufficiently persuasive to shift the evidentiary burden, particularly on the key issue of whether he took a Cash Refund Benefit in 1982 when he left the Plan. Accordingly, we draw no inference from Canada Life's failure to produce complete records from the 1970s and 1980s. Based on those authorities, I find that the Tribunal correctly determined that the onus rested on the Appellant to prove his pension entitlement. That onus did not shift to the CEO.