I think most people in Canada are aware that in a criminal case in Canada, the Crown has to prove that the accused is guilty beyond a reasonable doubt.
But in a civil lawsuit, the standard is different. The person who has the burden of proof (usually the plaintiff making the claim) must prove his or her case on a balance of probabilities.
What does the “balance of probabilities” mean? It simply means that the judge must find that it is more likely than not that what the person who has the burden of proof says happened is the truth. The judge does not have to be free from all reasonable doubt. He or she must be able to decide if one version of events is more likely true than another version.
In some British Columbia cases, the courts have suggested that a higher standard of proof than the balance of probabilities is required if someone is making very serious allegations of wrongdoing. For example, if I say I lent you some money, but you didn’t repay me on time, I would have to prove my case on a balance of probabilities. But if I say you acted fraudulently, I would need to meet a higher standard of proof, perhaps something in between the civil standard of balance of probabilities and the criminal standard of beyond a reasonable doubt.
In a decision released on Thursday, October 2, 2008, the Supreme Court of Canada rejected the notion that a higher standard of proof than the balance of probabilities is required in a civil case.
In F.H. v. McDougall, 2008 SCC 53, the plaintiff sued an Oblate Brother of a residential school the plaintiff had attended as a child. The plaintiff claimed that the defendant had sexually assaulted him thirty years ago, when the plaintiff was 10. Despite some inconsistencies in the plaintiff’s evidence, the trial judge believed him, and the plaintiff won.
The majority of the British Columbia Court of Appeal overturned the trial judge’s decision. The Court of Appeal held that the plaintiff had not met the burden of proof, which the court described as being “commensurate with the occasion” when morally blameworthy conduce is alleged.
Mr. Justice Rothstein wrote the unanimous judgment of the Supreme Court of Canada, restoring the trial judge’s decision for the plaintiff. He contrasted criminal cases, where the higher standard of proof beyond a reasonable doubt is closed linked with the presumption of innocence, with civil suits. In civil suits society is indifferent as to whether the plaintiff or defendant wins.
The Court also considered the impracticality of imposing a higher probability. It is easy to understand the idea that one has to meet a standard of 51%, but not 60% or 70%.
Mr. Justice Rothstein left no room for equivocation: “I would reaffirm that in civil cases there is only one standard of proof and that is proof on a balance of probabilities.”