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Evidence - Standard of Proof

. Gefen Estate v. Gefen

In Gefen Estate v. Gefen (Ont CA, 2022) the Court of Appeal considers the civil standard of proof:
[36] The only civil standard of proof is proof on a balance of probabilities: F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, at para. 40. In all cases, the evidence adduced to meet this standard must be “sufficiently clear, convincing and cogent” to persuade the trier of fact of the merits of the claim on a balance of probabilities: McDougall, at para. 46.

[37] The “quality” of the evidence required to meet the standard will vary according to the nature of the claim and the evidence capable of being adduced: Nelson (City) v. Mowatt, 2017 SCC 8, [2017] 1 S.C.R. 138, at para. 40. So, for example, as explained in Mowatt, in historical adverse possession claims, the quality of the supporting evidence might not be as robust as evidence of recent possession, but it must still be sufficient to meet the burden of proof. Or, as illustrated by Canada (Attorney General) v. Fairmont Hotels Inc., 2016 SCC 56, [2016] 2 S.C.R. 720, the quality of the evidence to be adduced by a party seeking rectification is such that it must displace an instrument to which the party had previously subscribed. Cogent and convincing evidence will be needed to “counteract the inherent probability that the written instrument truly represents the parties’ intention because it is a document signed by the parties”: Fairmont Hotels Inc., at para. 36. However, the party must nonetheless meet the standard of proof. Thus, the quality of the evidence may vary depending on the claim, but the standard of proof will always remain the same: proof on a balance of probabilities.
. The Association of Professional Engineers of Ontario v. Rew

In The Association of Professional Engineers of Ontario v. Rew (Div Ct, 2020) the Divisional Court affirmed that there is only one standard of proof in civil matters:
[70] In F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, the Supreme Court of Canada confirmed that there is only one standard of proof in civil proceedings – proof on a balance of probabilities. In McDougall, the Supreme Court discussed the attempts made in prior Canadian jurisprudence to “reconcile the tension between the civil standard of proof on a balance of probabilities and cases in which allegations made against a defendant are particularly grave” (para. 26). Such cases included allegations of professional misconduct. The various “intermediate” approaches used by prior courts in civil cases, where criminal or morally blameworthy conduct was alleged, were summarized by the Supreme Court in para. 39 and included “[n]o heightened standard of proof in civil cases, but the evidence must be clear, convincing and cogent.”

[71] The Court rejected all of the “intermediate approaches” identified in para. 39, and held that “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” (at para. 40). The Court went on to discuss the reasons why the criminal standard could not be imported into civil proceedings and why any suggestion of an intermediate standard presents practical problems. The criminal standard of beyond a reasonable doubt is linked to the presumption of innocence and, “in civil cases, there is no presumption of innocence” (at para. 42). Further, “suggesting that the standard of proof is ‘higher’ than the ‘mere balance of probabilities’ inevitably leads one to inquire: what percentage of probability must be met? This is unhelpful because while the concept of ‛51 percent probability’ or ‘more likely than not’ can be understood by decisionmakers, the concept of 60 percent or 70 percent probability cannot” (at para. 43, citation omitted). Finally, to somehow suggest that a higher level of scrutiny applies to the evidence in a civil case involving serious allegations implies that in less serious cases the evidence must be scrutinized with less care. Evidence “must always be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test” (at para. 46).


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