Burden to prove fraud in civil context

Yesterday`s Court of Appeal decision in Man Financial Canada Co. v. Keuroghlian, 2008 ONCA 592 provides a helpful reminder of the burden of proof for fraud in the civil context:



(2) Burden of Proof for Allegations of Fraud



[41] The appellant submits that the trial judge did not use the more rigorous standard of proof that is required when allegations of fraud are made. Again, he points to the conclusory nature of the findings portion of the reasons and the alleged failure of the trial judge to reconcile conflicting evidence or to state specifically why he accepted the evidence of the respondent's witnesses and not that of the appellant.



[42] There is no merit to this submission. First, the trial judge referred specifically to the burden of proof he was applying to findings of fraud in the opening portion of his reasons, that is, findings made on clear and cogent evidence commensurate with the gravity of the allegations.



[43] Second, contrary to the submission of the appellant, the trial judge did not simply prefer the evidence of the respondent's witnesses. He stated that the evidence of Chee and Gloutney was "far more believable" than the evidence of Sarkis. In the context of the two burdens of proof that the trial judge said he was applying, I understand this to be a reference to the higher standard: see Stetler v. Ontario Flue-Cured Tobacco Growers' Marketing Board (2005), 76 O.R. (3d) 321 (C.A.), at para. 79.