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Appeals - Evidence Powers - Inferences [CJA s.134(4)]

. 2651171 Ontario Inc. v. Brey

In 2651171 Ontario Inc. v. Brey (Ont CA, 2022) the Court of Appeal applied it's fact-finding functions [CJA 134(4)] as an aspect of it's powers on appeal:
[21] I agree with the respondent Brey’s submission that it is necessary for this court to determine this question. This is an appropriate case for this court to exercise its fact-finding powers and make a decision that the motion judge could have made, pursuant to ss. 134(1) and (4)(a) of the Courts of Justice Act, R.S.O. 1990, c. C.43.

[22] This court can draw inferences and make findings of fact as long as they do not contradict findings that stand in the court below: 306440 Ontario Ltd. v. 782127 Ontario Ltd. (Alrange Container Services), 2014 ONCA 548, 384 D.L.R. (4th) 278, at para. 36. As this court recently explained in Carmichael v. GlaxoSmithKline Inc., 2020 ONCA 447, 151 O.R. (3d) 609, at para. 130, leave to appeal refused, [2020] S.C.C.A. No. 409, appellate courts are cautious about exercising fact-finding powers and “will not make findings of fact if this requires the court to assess credibility or if the evidentiary basis needed to draw the necessary inferences is inadequately developed in the record at first instance” (citation omitted). Those concerns are not present here.

[23] Although the motion judge did not make any findings on this issue, the record is sufficient to permit us to address and determine the question. It does not require the resolution of credibility issues. In keeping with the Supreme Court’s direction in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 49, this court’s determination of this issue would be “a proportionate, more expeditious and less expensive means to achieve a just result” without working any unfairness to the parties. See also Carmichael, at paras. 131-133; Pucci v. The Wawanesa Mutual Insurance Company, 2020 ONCA 265, at paras. 61-62; Cook v. Joyce, 2017 ONCA 49, at paras. 78-81

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