In Massaar v. Moneck, 2026 ONCA 467, the Court of Appeal dismissed an appeal of an order finding that the money advanced by the respondent to the applicant was a loan and not a gift, a finding that was found on a paper record. On the motion, Her Honour determined that she could fairly and justly decide the merits of the dispute on a paper record after determining there was no genuine issue requiring a trial. The Court of Appeal found that the motion judge’s discretion not to hold a mini-trial or trial requiring oral evidence is owed deference, unless it can be shown that there was a reversible error in that decision to decide the motion based on the documentary evidence that was filed. It was found that there was no error in the motion judge’s decision to proceed on the paper record.
The record filed before the motion judge was extensive and contemporaneous, as it included affidavits, transcripts of examinations, bank statements, letters, e-mails, and text messages. This documentation was all very compelling to advance the argument that the money advanced was a loan. The documentary evidence of the appellant advancing the position that the money advanced was a gift, was internally inconsistent and illogical when viewed against the totality of the evidence. The Court of Appeal saw no merit in what oral evidence would have added to the extensive record filed before the motion judge, the paper record was sufficient to make credibility findings and the Court of Appeal held that there were no palpable and overriding errors in the facts found by the motion judge.
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