Federal Court - Christian Aboriginal Infrastructure Developments ...

Page: 371
[1385] The Defendant’s claim is based upon a contract. According to the Counterclaim, the lease
was subject to the Territorial Lands Act and the Territorial Lands Regulations. Both meet the status
of “federal law”, as discussed in Mueller (Karl) Construction Ltd. v. Canada (1992), 59 F.T.R. 161
(T.D.). Assuming that this Court has the jurisdiction to entertain the Defendant’s Counterclaim
relative to an alleged breach of contract, but not deciding the point, I note that jurisdiction is one
thing and proof, upon the balance of probabilities, is another.
2010 FC 495 (CanLII)
[1386] The only evidence tendered by the Defendant is the indefinite evidence from Mr. Alan Kerr,
quoted above. If this evidence constitutes an admission, it is subject to being weighed in terms of its
probative value and relevance. In this regard, I refer to the decision in Clarke v. Minister of National
Revenue (2000), 189 F.T.R. 76 (T.D.), at para. 46.
[1387] In my opinion, the evidence of Mr. Kerr as to any outstanding rent is equivocal at best. He
does not profess personal knowledge of the matter. He appears to accept at face value the dollar
amount alleged by the Defendant, but he does not accept that rent had ceased to be paid.
[1388] There is no evidence at all about the terms of the original lease, of any of the amendments,
or of any of the assignments. There is no basis for the Court to determine if any of the amendments
or the assignments affected the liability of SYFC in the matter of paying rent under the original
lease. Indeed, para. 6 of the Defence to Counterclaim, quoted above, presents a complex answer to
liability of SYFC in that regard. The Defendant made no submissions in that regard.