Words and Phrases - "evidential burden"

At the hearing of the taxpayer's appeal of net worth assessments, the Crown agreed that it would present its case first, given that all the years were statute-barred. At the conclusion of the Crown's evidence, the taxpayer moved to have the appeal summarily allowed on the basis that the Crown's evidence was insufficient to discharge its burden of proving a misrepresentation sufficient to open up any of the years in issue. However, the taxpayer nonetheless elected to call evidence, and Esri J reserved on the motion.

Esri J later found that the taxpayer's motion was a non-suit motion, which failed because the Crown had led sufficient evidence to allow the pleaded issues to be at least considered by the trier of fact. In this regard, he stated (at paras. 107, 109, and 127):

The test on a non-suit is not whether the party bearing the onus has failed to prove its case on a balance of probability, but rather whether the party with that burden has led any evidence which supports that party’s case. A party who moves a non-suit is arguing that the opposing party has not met this evidential burden. …

The evidential burden is not about weighing evidence or determining facts. The party with an evidential burden is not required to convince the trier of fact of anything, but only to point out evidence which suggests that certain facts existed.

[N]on-suit motions … accomplish nothing and should be more or less precluded in the Tax Court. I say that because if, as still seems to be the case, the moving party must be put to an election as to whether to call evidence or not, the suit serves no purpose. If evidence is called, then no time has been saved. If no evidence is called, then the judge does not need to decide the non-suit motion because she can simply decide the case once and for all on the basis of the record and the arguments. [emphasis in original]