Does a judge have to consider the absence of production on a leave motion?
Ontario, Canada
The following excerpt is from DALI Local 675 Pension Fund (Trustees) v. Barrick Gold Corporation, 2022 ONSC 1767 (CanLII):
In Paniccia v. MDC Partners Inc., 2018 ONSC 3470, 142 O.R. (3d) 421, at paras. 89-91, Perell J. held that a judge on a leave motion must be cognizant of the fact that full production has not been made. While the court is entitled to weigh the evidence of both parties having regard to the affidavits and cross-examinations, the court must also take into account that the leave motion “involves merely a paper record and that the statutory leave test sets a low evidentiary threshold.”
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