CHAPTER 3
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EVIDENCE
3.4 Types of Evidence
3.4.3 Presumptions
Proof by presumption must involve relevant facts that make it possible to infer the existence of a disputed fact by inductive reasoning. A presumption is an inference established from a known fact to an unknown fact. It is often established by operation of law or from facts left to the discretion of the court. Similar definitions are given in the common law provinces in statues or the case law476 Citation 476.
Legal presumptions are created by law and may depend on certain facts being established and perhaps challenged by the other party 477 Citation 477. Once those facts are established, the effects of the presumption, including a shifting of the burden of proof, are triggered. Presumptions may be absolute or simple; only simple presumptions may be rebutted by evidence to the contrary478 Citation 478.
Factual presumptions are consequences a court or tribunal draws from one or more known facts to an unknown fact.479 Citation 479 A single fact is often enough to trigger a presumption, as with the presumption reflected in the maxim res ipsa loquitur [the thing speaks for itself].480 Citation 480
Both types of presumption employ the same method: known facts are employed to get to unknown facts. The difference between the two lies in whether or not the court or tribunal has discretion: whereas absolute presumptions are binding, simple presumptions are not.
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