In determining whether an employer has led sufficient evidence to give rise to a practical evidentiary burden, what is the test for this type of evidence?
Ontario, Canada
The following excerpt is from Association of Management, Administrative and Professional Crown Employees of Ontario v Ontario, 2017 CanLII 21084 (ON GSB):
In determining whether an employer has led sufficient evidence to give rise to such a practical evidentiary burden, in my view an arbitrator is entitled to consider “the opportunities of knowledge with respect to the facts to be proved which may be possessed by the parties respectively”: Snell v. Farrell. Thus, where the allegation is about something which would be peculiarly within the grievor’s knowledge, very little evidence from the employer may suffice to give rise to such a practical evidentiary burden.
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