Friday, December 27, 2013

Only one civil standard of proof - balance of probabilities

McLean v. McLean, 2013 ONCA 788 makes very clear there is only one civil standard of proof – balance of probabilities:

[39]       The trial judge held that Helen was required to provide “convincing proof” of a prior common intention to support her claim for rectification. He relied on the decision in Performance Industries Ltd. v. Sylvan Lake Golf & Tennis Club, 2002 SCC 19, [2002] 1 S.C.R. 678, at para. 41, in which Binnie J. held that in cases of rectification, “convincing proof”, that is, “proof that may fall well short of the criminal standard, but which goes beyond the sort of proof that only reluctantly and with hesitation scrapes over the low end of the civil ‘more probable than not’ standard”, is required.

[40]       Helen submits that the decision in Sylvan Lake has been superseded by the later decision of the Supreme Court of Canada, F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, which held that the only civil standard of proof in Canadian common law is proof on a balance of probabilities. Writing for a unanimous court, Rothstein J. stated at para. 40, under the heading “The Approach Canadian Courts Should Now Adopt”:

Like the House of Lords, I think it is time to say, once and for all in Canada, that there is only one civil standard of proof at common law and that is proof on a balance of probabilities. Of course, context is all important and a judge should not be unmindful, where appropriate, of inherent probabilities or improbabilities or the seriousness of the allegations or consequences.  However, these considerations do not change the standard of proof. I am of the respectful opinion that the alternatives I have listed above [including the requirement that evidence must be clear, convincing and cogent] should be rejected for the reasons that follow.

[41]       Maureen submits that if the Supreme Court of Canada had intended to overrule the comments of Binnie J. in Sylvan Lake, it would have expressly said so. She alleges that McDougall is distinguishable as a case where civil damages were claimed for an alleged sexual assault at an Indian residential school many years before.

[42]       I cannot accept Maureen’s submission. Rothstein J. specifically states at para. 49 that his conclusion respecting the standard of proof applies to all civil cases:

In the result, I would reaffirm that in civil cases there is only one standard of proof and that is proof on a balance of probabilities. In all civil cases, the trial judge must scrutinize the relevant evidence with care to determine whether it is more likely than not that an alleged event occurred. [Emphasis added.]

[43]       The trial judge erred in requiring Helen to present a higher standard of proof than the ordinary civil standard.   

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