August 25, 2026

By Brian Babcock

Court cases are decided 90% on the facts and 10% on the law. The only facts a court considers are those for which there is evidence. Without evidence, the facts don’t exist.

Having explained a bit about what evidence is, we figured that we ought to explain a bit about how evidence is obtained, and how it operates. Three recent examples illustrate:

• The role of evidence;
• The importance of thinking about it early in the process and
• What this means for you.

The evidence gathering process starts with the client, and sometimes cooperative witnesses. You may think that it needs to start as soon as the dispute arises, but in reality, it begins long before that.

Evidence gathering starts by having good policies and systems and following them. It also requires good record keeping and retention.

Often, you may not see the dispute coming, but good management includes risk management in both your business and personal affairs. You should treat every transaction as a lawsuit waiting to happen.

Thinking about gathering evidence long before the lawyers get involved is your best, most cost-effective strategy.

THE CASES

Bennet v. Chadwick

This case deals with a dispute over a right of way or easement created over a summer cottage property . The property was legally owned by a not-for-profit corporation created for that purpose. Each shareholder is entitled to exclusive possession of their particular property.

Land access to Bennet’s property was only possible over Chadwick’s lot. The existence of the right of way was not disputed. The issue was where the right of way was located.  Bennet complained that Chadwick had erected a fence which interfered with Bennet’s access to the property.

Chadwick relied on an agreement entered into in 1974. Unfortunately, that agreement did not specify where the right of way  was located.  For that, you had to go back to a corporate resolution from 1961. Issues then arose as to which governed, and whether or not the actual use over the years mattered.

Why do we include this decision in this article?

Because as the Superior Court judge hearing the application stated: “While much law was cited in argument this is entirely a factual dispute where my findings of fact determine the issues.”

That judgment referred to no specific caselaw at all, which is highly unusual.

And as mentioned at the beginning of this article, without evidence, there are no facts.

What did the Ontario Court of Appeal have to say?

They upheld the judgment, saying:

The application judge did not determine the location of the right-of-way by accepting Ms. Chadwick’s sketch as definitive proof. Rather, he considered the sketch together with the historical documents, survey evidence, photographs, and admissions made by the parties. The sketch functioned as an illustrative aid and not as an independent source of legal rights. (emphasis added)

Without that evidence, Bennet might not have won his case.

The modern law of contract interpretation depends upon the context of the agreement, rather than the obsolete approach of trying to determine meaning by looking at the dictionary meaning of the language of the agreement  in isolation from surrounding circumstances.

People often  think first about  oral evidence from witnesses when they think about proof, but the reality is that documents speak louder. Photographs really are worth a thousand words.

Eyelet Investment Corp. v. Zhou

This Court of Appeal decision involves a real estate deal which failed to close. The seller resold the property for less than the  originally agreed sale price  and sued the buyer for the shortfall.

This is  a frequent problem in Southern Ontario, where  houses are relatively expensive compared to Thunder Bay or the rest of Northwestern Ontario. When it was a sellers market, buyers would offer to purchase without a financing condition. If they failed to qualify for  mortgage, they defaulted on the agreement. With the market softening, the resales left a shortfall.

A series of recent Court of Appeal decisions have clarified how to calculate damages. At its core is the question of whether or not the efforts to resell were reasonable, or whether they resulted in what is called an “improvident sale”. An improvident sale results in a failure to mitigate damages, lowering the recoverable damages.

The seller’s problem was that:

• They had no documentary evidence about its efforts to advertise and market the property;
• The affidavit evidence from the seller’s witness was that they did not recall what efforts were made to market the particular property after the termination of the original agreement but instead testified about their usual marketing practices;
• In cross-examination on their affidavit, the witness testified that he did not remember if other offers were made on the property between the date the buyer terminated the agreement and the sale six months later;
• Their answer to a question about offers n the property was that given the market conditions at the time, not many offers were made for the subject property. The seller did not have records in connection with such offers.
• The seller provided no records or details about the implementation of these marketing strategies during the six-month period between the termination of the original agreement and the sale of the property to a different buyer, with respect to either the particular property or other properties in the development.

The motion judge found that the failure to provide that detailed evidence was fatal to the seller’s case. They decided based on what  is called an “adverse inference” that the missing evidence would have shown  that the  facts were not in the seller’s favour Specifically, the judge determined, in the absence of evidence, that there was a delay in marketing the property and that it was not marketed sufficiently.

This finding about the facts may not be accurate. We will never know. But because the seller failed to keep proper records, they lost. Frankly, it just seems fair that they lost as a price to pay for such astonishingly bad record keeping.

The Court of Appeal agreed.

Massaar v. Moneck

This case is about the all too frequent dispute over whether a payment of money was a gift or a loan. As is common, the dispute was between  a woman and her estranged son-in-law

The woman had given her daughter and son-in-law almost $200,000.00 to assist in the purchase of a home. Some monthly payments toward this advance were made, but then the payments ceased.

As is almost always the case, the bank providing the mortgage required that the parties sign a “gift letter” saying that the payment by the mother was a gift, not a loan. If it was a loan, the buyers would not have had sufficient equity to qualify for the mortgage.

The gift letter was modified. The wording “a genuine gift and does not have to be repaid”  was crossed out and replaced with handwritten wording which said that the payment “reflects a non-interest-bearing and unsecured loan from mother to daughter”.

Have you spotted the problem?

The revised wording does not refer to the son-in-law. So, is he responsible for the loan?

Things were further complicated by the fact that the revised wording had been drafted by Ms. Massaar’s  financial advisor, and his draft did refer to a loan to both the daughter and the son-in-law.

No one agreed whether the gift letter was changed before or after it was signed.

There was the verbal evidence of the advisor as to Ms. Maasaar’s intent, but  evidence of what somebody else said is usually inadmissible hearsay.

There was also a promissory note, but the son-in-law denied that it was his signature on it.

So how did the Superior Court motion  judge decide the case?

She decided that:

The evidence of Marian and Lauren, where it conflicts with that of Anthony, is preferred. Their evidence is logical and supported by contemporaneous documentary evidence, as reviewed. In contrast, Anthony’s evidence lacks credibility as it is frequently illogical, internally inconsistent, and inconsistent with the contemporaneous documentary evidence. (emphasis added)

And what about the Court of Appeal?

They said:

We see no error in the motion judge’s decision to proceed on the paper record. Indeed, the record filed before the motion judge was extensive and much of it was contemporaneous. The record included affidavits, transcripts of examinations, bank statements, letters, e-mails and text messages. The motion judge relied on documentary evidence that supported the respondent and her daughter’s position that the advance was a loan. The motion judge also examined the documentary evidence of the appellant and found that it was internally inconsistent and illogical when viewed against the totality of the evidence. These findings were available for her to make. We see no reason to disturb them. (emphasis added)

 

Although there were other factors considered in assessing credibility, the documentary evidence was the key.

TAKEAWAYS

• Documentary evidence is often given more weight than the evidence of witnesses.
• This is especially true when the witnesses are interested parties.
• Proper recordkeeping also may fill in any gaps in the recollection of witnesses.
• An absence of proper records may count against you. It may even be fatal to your case.
• Evidence gathering begins long before the lawsuit begins.

 

WHAT WEILERS LLP CAN DO TO HELP YOU

Doing something right the first time is a good investment. It saves time, inconvenience and expense. At Weilers LLP we believe in helping our clients do it right in a cost-effective manner.

Whether you are a big business, a small to medium or sized enterprise, or an individual  dealing with your personal affairs, Weilers can:

• Help you set up systems that will help you manage risks.
• Help you to maintain proper records to:
  • Document what those systems are, and
  • whether they were followed in a particular case.
• Advise you about what documents would be important to prove your case in court before you even have dispute.
• When you see the dispute coming, help you retain, retrieve and organize your documents so that they are available when you need them.
• Help you by presenting your evidence in court or at a hearing in an effective and efficient fashion.

To find out more about how Weilers LLP can help you, give us a call to see if Weilers LLP are the right lawyers for you.