COURT OF APPEAL FOR ONTARIO

Page: 48
at Combined Air for approximately 15 years. These individuals deposed that they did not
consider CRSC to be in a similar business to Combined Air. In particular, Thorne
asserted on examination that Combined Air was not involved in projects of the same type
and size as CRSC, and that CRSC typically requested HVAC services from Combined
Air.
[99] Combined Air led no evidence that CRSC had sold HVAC equipment to its
customers. The only possible evidence that it offered of direct competition, the Pickering
bid, actually supported the respondents because Combined Air was included in that bid as
the subcontractor to supply the HVAC equipment. The language of the deeming
provision in s. 8.18 cannot assist Combined Air in the face of the evidence as to CRSC‟s
business. The motion judge was entitled to conclude that the nature of CRSC‟s business
was that of a general contractor and that there was no issue requiring a trial.
[100] The motion judge did not err by failing to draw an adverse inference against the
respondents pursuant to rule 20.02(1). As the moving parties, the respondents bore the
legal burden to demonstrate that there was no genuine issue requiring a trial. As the
responding party, Combined Air bore an evidentiary burden to respond with evidence
setting out specific facts showing there is a genuine issue requiring a trial: see Esses v.
Bank of Montreal, 2008 ONCA 646, 241 O.A.C. 134, at para. 44. As we have explained,
the respondents adduced evidence as to the nature of CRSC‟s business and Flesch‟s
involvement in it to show that CRSC was not in competition with Combined Air. The