What If The Judge Cannot Make A Finding Of Fact?

The recent British Columbia Court of Appeal decision in McPhee v. British Columbia, 2008 BCCA 254 (CanLII) is a typical motor vehicle case of little interest legally except for an interesting reference by the Court to what a judge has to do when a factual issue simply cannot be determined.

What happens when a judicial officer struggles to make a finding of fact and is simply unable to based on the evidence? The judicial officer must rule against the party bearing the onus of going forward – as that party had to establish the fact and was unable to the fact is not found. Note, the party with the onus of going forward is not always the plaintiff -- in a confess and avoid situation it may well be the defendant who bears the onus (e.g. showing dismissal was for cause)

The Court referenced Stephens v. Cannon, [2005] EWCA Civ 222 saying:

[37] In that case, a master had been confronted with conflicting expert evidence on the value of a dwelling which had not yet been built, and concluded (quoted at para. 31):

I have to say that at the end of the day I found it very difficult to satisfactorily resolve this conflict of evidence which is based upon a difference of professional opinion….

However, the conclusion which I have reluctantly reached is that I am unable to decide that I prefer one view over the other, and in those circumstances this case falls to be decided on the basis of the burden of proof. As the claimants bear the burden of proof to satisfy me on the balance of probabilities that their view is correct, and as they have failed to do this, I shall adopt the view put forward by the defendants.

[38] The Court of Appeal, summarizing the authorities on this issue, said (at para. 46) that a court may “despatch a disputed issue by resort to the burden of proof” only when the court “cannot reasonably make a finding” on the issue, “notwithstanding that it has striven to do so”.