Is there a conflict of evidence between the debtor and creditor?
Ontario, Canada
The following excerpt is from Clarkson v. McMaster & Co., 1895 CanLII 44 (ON CA):
Here there is no conflict of evidence; both debtor and creditor swearing that they had no idea of insolvency. Any doubt there may be is raised by the statement, which it is said should have led the creditor to a different conclusion. Even if there had been a conflict of evidence “the finding of the primary judge” as laid down in Grassett v. Carter, 1884 CanLII 5 (SCC), 10 S.C.R. 105, at p. 125, “is to be regarded as decisive, and should not be overturned in appeal by judges who have not had the advantage, as the judge at the trial had, of seeing the witnesses and observing their demeanour under examination.”
If the debtor had sworn that he was insolvent to the knowledge of his creditor, and the learned Judge had, nevertheless, adopted the creditor’s denial, the decision, according to Grassett v. Carter, should be decisive. Is more weight then to be given to a statement which might, and to some minds would, have fixed the creditor with the knowledge of his debtor’s circumstances than the evidence of the debtor?
"The most advanced legal research software ever built."
The above passage should not be considered legal advice. Reliable answers to complex legal questions require comprehensive research memos. To learn more visit www.alexi.com.
Other Questions
What is the test for using the word "similar fact evidence" in a motion where the evidence is not the same fact evidence? (Ontario, Canada)
Can a debtor or his assignee, under a voluntary assignment, add to the names of creditors to be benefited by the trust? (Ontario, Canada)
Can a preference of execution creditors be applied in assignment for the benefit of creditors? (Ontario, Canada)
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)
Is a judgment debtor entitled to costs if the judgment creditors succeed? (Ontario, Canada)
What impact would the inclusion of the evidence in the context of section 24(2) of the Charter under which the evidence is excluded? (Ontario, Canada)
How have the principals of the Rules of Civil Procedure apply to evidence that contradicts the evidence given by the complainants in their cross-examinations? (Ontario, Canada)
Is there any case law in which the Court has rejected evidence tendered in affidavit form as other affidavit evidence? (Ontario, Canada)
What is the effect of a trustee’s intention to include all creditors in the distribution of a debtor's assets? (Ontario, Canada)
Does Age-Less have the right to conduct an examination of a judgment creditor of a party to a subsequent action commenced by the judgment creditor? (Ontario, Canada)
