CHAPTER 3

EVIDENCE

 

3.7 Weight or Probative Value

3.7.3 Probative Value of Presumptions

3.7.3.1 Legal Presumptions

A legal presumption is an inference established by statute or a common law rule. The probative value of legal presumptions differs depending on whether they are absolute or simple presumptions.

Absolute legal presumptions are mandatory and cannot be reversed, even by admission of the opposing party. Section 134 of the Act  regarding documents that are proof of their content is an example of a presumption that cannot be reversed.

Res judicata is an example of such a presumption when the conditions precedent to its existence are met. At common law, the requirements of estoppel by res judicata are as follows: a final decision pronounced by a court of competent jurisdiction, or an identity of action or issue between the same parties in the same capacity.^{556 Citation} Article 2848 C.C.Q. sets out those conditions: res judicata applies only to the object of the judgment, and only when the demand is based on the same cause and is between the same parties acting in the same qualities, and the thing applied for is the same. For boards of referees, s. 120 of the Act   Section 120 of the Act, which governs the power to amend decisions, limits the scope of res judicata; this also applies when the Umpire refers a case back to the same board or another board.^{557 Citation} Furthermore, res judicata applies when an issue has been decided definitively by another board or by the Umpire between the same parties.^{558 Citation} Res judicata does not apply to a judgment rendered by a criminal court, civil court, or an arbitration tribunal, even if the case involved identical facts.^{559 Citation} Res judicata cannot be invoked against a decision by the Commission.^{560 Citation} However, it seems that the res judicata rule should not be applied as strictly as in ordinary courts of law.^{561 Citation}

Simple presumptions may be rebutted by contrary evidence. If they are not, the court or tribunal is bound by them. If the conditions of its existence are met, the court or tribunal must consider the unknown fact to be true, absent evidence to the contrary. These conditions are normally set out in the Act or Regulations; for example, s. 36 of the Regulations   Section 36 of the Regulationssets out all the conditions by which monies received from the employer upon separation from an employment are considered to be earnings that must be allocated as insurable earnings.

 

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