



COURT OF APPEAL FOR ONTARIO

CITATION:
Dagenais v. Vassel, 2012 ONCA 424

DATE: 20120620

DOCKET: C54401

Doherty, Juriansz and Ducharme JJ.A.

BETWEEN

Paul Dagenais

Plaintiff (Respondent )

and

Thelma Angela Vassel aka Linda
    Lee

Defendant (Appellant)

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 plaintiffs 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 plaintiffs evidence carefully and while he was not prepared to
    accept the entirety of it, he clearly accepted the thrust of the plaintiffs
    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 judges 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 appellants credibility properly took
    into account factors relevant to that assessment, including, for example, the
    appellants 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 judges
    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.


