Standard of Proof in Civil Cases

There has been a debate for some time among lawyers and judges in Canada as to whether there is a standard of "enhanced proof" required for civil claims involving acts of fraud or what some describe as acts of "morale turpitude".

The Supreme Court of Canada recently put this debate to rest and held that there is one standard of proof required for all civil matters - i.e. 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.

In the case of F.H. v. McDougall, 2008 SCC 53, the Court held:

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 allegation or consequences. However, these considerations do not change the standard of proof.

In contrast to criminal cases where the standard of proof is proof beyond a reasonable doubt, in civil cases there is no presumption of innocence. The Supreme Court acknowledged that there may be serious consequences to a finding of liability in a civil case that continue past the end of the case. However, it concluded that a civil case does not involve the government's power to penalize or take away the liberty of the individual.

The Court reasoned that the only practical way in which to reach a factual conclusion in a civil case is to decide whether it is more likely not that the event occurred. To suggest that depending upon the seriousness of the allegations, the evidence in a civil case must be scrutinized with greater care, implies that in less serious cases the evidence need not be scrutinized with such care. As a result, the Court found that it is inappropriate to say that there are legally recognized different levels of scrutiny of the evidence depending upon the seriousness of the case. There is only one legal rule and that is in all cases, evidence must be scrutinized with care by the trial judge.

Regards,

Blair