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Evidence - Inherently Incpable of Proof

. Beaudoin Estate v. Campbellford Memorial Hospital

In Beaudoin Estate v. Campbellford Memorial Hospital (Ont CA, 2021) the Court of Appeal cites doctrine on when facts are 'inherently incapable of proof':
[44] The Supreme Court of Canada’s decision in Operation Dismantle v. The Queen, 1985 CanLII 74 (SCC), [1985] 1 S.C.R. 441 remains the leading case on the type of allegation that is “manifestly incapable of proof”. At issue was whether to strike out, as disclosing no reasonable cause of action, a statement of claim. The key allegation was that the decision of the federal cabinet to permit the United States to test cruise missiles in Canada would threaten the lives and security of Canadians by increasing the risk of nuclear conflict, and would thus violate s. 7 of the Canadian Charter of Rights and Freedoms. The claim pleaded such a causal link through a series of reactions by various foreign powers, including arms agreements becoming unenforceable, Canada becoming the target of a nuclear attack, an increased likelihood of a pre-emptive strike or accidental firing, and escalation of the nuclear arms race. Dickson J. (as he then was) for the majority of the Supreme Court ruled, at p. 455, that he did not need to assume that the plaintiffs’ allegations were true because they were by their very nature incapable of proof:
We are not, in my opinion, required … to take as true the appellants’ allegations concerning the possible consequences of the testing of the cruise missile. The rule that the material facts in a statement of claim must be taken as true for the purpose of determining whether it discloses a reasonable cause of action does not require that allegations based on assumptions and speculations be taken as true. The very nature of such an allegation is that it cannot be proven to be true by the adduction of evidence. It would, therefore, be improper to accept that such an allegation is true. No violence is done to the rule where allegations, incapable of proof, are not taken as proven. [Emphasis added.]
[45] Pleaded facts are incapable of proof when “proof is inherently impossible”: P.K. v. Desrochers (2001), 2001 CanLII 8617 (ON CA), 151 O.A.C. 341 (C.A.), at para. 4, leave to appeal refused, [2002] S.C.C.A. No. 81. Pleaded facts that are merely difficult to prove are not incapable of proof: Spar Roofing & Metal Supplies Ltd. v. Glynn, 2016 ONCA 296, 401 D.L.R. (4th) 318, at para. 44.


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