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Evidence - Standard of Proof. Kitmitto v. Ontario (Securities Commission)
In Kitmitto v. Ontario (Securities Commission) (Div Court, 2024) the Divisional Court considers (and dismissed) related appeals from two Capital Markets Tribunal (CMT) decisions, one respecting 'merits' and one respecting 'sanctions' [under Securities Act (SA), s.10(1)], here addressing SA 76 "which prohibits insider trading and tipping" ['Part XVIII - Continuous Disclosure ' ('Trading where undisclosed change' and 'Tipping')].
Here the court addresses tension perceived to exist between individual circumstantial 'inference' conclusions, and the more general standard of proof principle that a case should be decided on the "cumulative effect of all the evidence":[103] In concluding that Mr. Candusso traded while in possession of Amaya MNPI, the Tribunal majority weighed the totality of the evidence and circumstances. It did not examine individual pieces of evidence in isolation, as Mr. Candusso does in his submissions. Where (as here) arguments are advanced that individual items of circumstantial evidence are explained on bases other than guilt, “it is essential” to keep in mind the cumulative effect of all the evidence. As the Court of Appeal stated in R. v. Uhrig, 2012 ONCA 470, at para 13:Individual items of evidence are not to be examined separately and in isolation, then cast aside if the ultimate inference sought from their accumulation does not follow from each individual item alone. It may be and very often is the case that items of evidence adduced by the Crown, examined separately, have not a very strong probative value. But all the evidence has to be considered, each item in relation to the others and to the evidence as a whole, and it is all of them taken together that may constitute a proper basis for a conviction…. [Emphasis added.] [Citation omitted.] [104] I see no reversible error in the Tribunal majority’s findings that Mr. Candusso had opportunity to acquire Amaya MNPI or that his trades were timely, uncharacteristic, risky and profitable. Mr. Candusso clearly had the opportunity to acquire Amaya MNPI from Mr. Kitmitto. They were in daily contact as close friends and roommates. As well, I agree with the OSC that the evidence the Tribunal majority relied on, taken as a whole, supports the findings that Mr. Candusso’s trades were timely, uncharacteristic, risky and profitable: see Merits Decision, at paras. 260(b), (c) and (d).
[105] I also see no error in the Tribunal majority’s reliance on these findings to conclude that Mr. Candusso traded while in possession of Amaya MNPI. The opportunity to acquire MNPI together with timely and profitable trades support that inference: Suman, at para. 302. It does not assist the analysis to suggest that the trades were not as timely, uncharacteristic or risky as they hypothetically could have been. That is not a sufficient basis to show that the Tribunal majority’s findings were clearly wrong, unreasonable, or unsupported by the evidence. I am satisfied that the cumulative effect of all the evidence and circumstances reasonably supports the inferences drawn by the Tribunal majority: Uhrig, at para. 13; Finkelstein v. Ontario (Securities Commission), 2018 ONCA 61, 139 O.R. (3d) 166, at para. 101, leave to appeal refused, [2018] S.C.C.A. 98. . Prince v Chief Executive Officer of the Financial Services Regulatory Authority of Ontario
In Prince v Chief Executive Officer of the Financial Services Regulatory Authority of Ontario (Div Court, 2023) the Divisional Court considered the appellant's argument that, in a professional discipline tribunal hearing [here before Financial Services Tribunal, acting under the Mortgage Brokerages, Lenders and Administrators Act, 2006 (the 'MBLAA')] that the standard of proof was higher than the normal civil standard of 'balance of probabilities' (it wasn't):[1] The Appellant appeals from a decision of the Financial Services Tribunal (the “Tribunal”) under the Mortgage Brokerages, Lenders and Administrators Act, 2006. (the “MBLAA”).
[2] The Appellant requested a hearing before the Tribunal after receiving a notice of proposal to revoke her mortgage licence based on a reasonable belief that she was not suitable to be licensed as a mortgage agent. The grounds for this belief were the Appellant’s past conduct, false statements by the Appellant in her application to be licensed on three subsequent renewals and for misleading Financial Services Regulatory Authority of Ontario (“FSRA”) investigators.
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[11] The Appellant submitted that a sliding scale or higher standard should be applied in circumstances such as this. Counsel referred the panel to Australian authorities to that effect and to a strongly worded minority opinion by the Chief Justice of the Supreme Court of New Zealand that a higher standard should be applied in circumstances where serious allegations and penalties are engaged: Z v. Dental Complaints Assessment Committee [2008] NZSC 55; [2009] 1 NZLR 1.
[12] I disagree.
[13] It is well settled law in Canada that there is one civil standard of proof at common law, which is proof on the balance of probabilities, notwithstanding the seriousness of the allegations or the consequences: F.H. v. McDougall, 2008 SCC 53 at para. 40 [2008] 3 SCR 41 (CanLII). This decision is binding on us as it was on the tribunal below.
[14] The Tribunal correctly applied the civil standard of proof to the hearing evidence and carefully set out its reasons for rejecting the Appellant’s evidence. It did not commit any legal error in its application of the standard of proof. Further, the prosecution’s case was established by clear and cogent evidence, most of which was not contested. The issue before the Tribunal was in respect of the appellant’s explanations for the impugned conduct, explanations which were rejected by the tribunal for reasons that are discussed below. I would not give effect to this ground of appeal. . Re/Max Realty Specialists Inc. v. 2452303 Ontario Inc.
In Re/Max Realty Specialists Inc. v. 2452303 Ontario Inc. (Ont CA, 2023) the Court of Appeal clarified that a 'standard of proof' applied to the totality of evidence of liability:[8] We disagree. It is well-established that the standard of proof applies only to the trier of fact’s final evaluation of liability on an issue and is not to be applied piecemeal to individual items or categories of evidence: see R. v. Ménard, 1998 CanLII 790 (SCC), [1998] 2 S.C.R. 109, at para. 23. The trial judge’s reasons clearly disclose that when she looked at the totality of the evidence, she was satisfied that the respondent had demonstrated, on a balance of probabilities, that Mr. Jhutty wrote the questioned initial, which was the only issue in dispute at the trial. She committed no error in so concluding. . 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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