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Review - Grounds - Fact-Finding in the Absence of Evidence. BH Frontier Solutions Inc. v. 11054660 Canada Inc. (Canadian Choice Supply)
In BH Frontier Solutions Inc. v. 11054660 Canada Inc. (Canadian Choice Supply) (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal of a successful contract action, where fraudulent misrepresentation and piercing the corporate veil were conflated.
Here the court considers the presumption that unpled issues may not ground a ruling:[27] The appellants argue that the motion judge erred in “splitting” his analysis of the allegations of fraud between the Canada-based fraud and the China-based fraud. In making this argument, the appellants rely on the principle that judges should not decide matters on grounds which were not advanced by the parties.
[28] The principle cited by the appellants is ordinarily invoked when a judge decides a case based on grounds where no evidence was led and where no relevant arguments were made: see Asco Construction Ltd. v. Epoxy Solutions Inc., 2014 ONCA 535, 32 C.L.R. (4th) 1, at para. 8. . Canada (Attorney General) v. Ennis
In Canada (Attorney General) v. Ennis (Fed CA, 2021) the Federal Court of Appeal considered the issue of a tribunal ruling on undisclosed evidence:[75] .... in terms of disclosure, procedural fairness instead only normally requires that a decision-maker not decide based on undisclosed evidence (May v. Ferndale Institution, 2005 SCC 82, [2005] 3 S.C.R. 809 at para. 92) ... . Micanovic v. Intact Insurance
In Micanovic v. Intact Insurance (Div Ct, 2022) the Divisional Court stated the obvious principle that when a fact-finding is made in the absence of evidence, that an error of law has occured:[36] It is an error of law to make a finding of a material fact where the finding is based solely on a complete absence of evidence: Johannson v. Saskatchewan Government Insurance, 2019 SKCA 52 at para. 25 which cites the following helpful passage of Klebuc C.J.S. from Murphy v Saskatchewan Government Insurance, 2008 SKCA 57, [2008] 7 WWR 401 at para. 5 thereof:Since the right of appeal is confined to a question of law, neither the right of appeal nor the jurisdiction of the Court extends to a finding of fact. However, a finding of fact may be grounded in an error of law, as will be the case, for example, when a finding: (a) is based on no evidence; (b) is made on the basis of irrelevant evidence or in disregard of relevant evidence; or, (c) is based on an irrational inference of fact. See: P.S.S. Professional Salon Services Inc. v. Saskatchewan Human Rights Commission et al., 2007 SKCA 149, (2007), 302 Sask. R. 161 at paras. 60–65 (application for leave to appeal to S.C.C. filed February 13, 2008). The right of appeal, of course, extends to such errors of law.
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