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Supreme Court Shelves the Enhanced Balance of Probabilities
Published in the October 2008 issue of Litigation Notes - View Article
Synopsis: The Supreme Court of Canada has ruled that there are only two standards of proof in Canada: “beyond a reasonable doubt” for criminal cases and “balance of probabilities” for civil cases. The intermediate standard, sometimes called the “enhanced balance of probabilities”, does not apply in Canada.
In the case of Addington v. Texas (441 U.S. 418) Chief Justice Burger of the Supreme Court of the United States referred to the standards of proof in legal cases in the following manner:
“Generally speaking, the evolution of this area of the law has produced across a continuum three standards or levels of proof for different types of cases. At one end of the spectrum is the typical civil case involving a monetary dispute between private parties. Since society has a minimal concern with the outcome of such private suits, plaintiff’s burden of proof is a mere preponderance of the evidence. The litigants thus share the risk of error in roughly equal fashion.
In a criminal case, on the other hand, the interests of the defendant are of such magnitude that historically and without any explicit constitutional requirement they have been protected by standards of proof designed to exclude as nearly as possible the likelihood of an erroneous judgment. In the administration of criminal justice, our society imposes almost the entire risk of error upon itself. This is accomplished by requiring… that the state prove the guilt of an accused beyond a reasonable doubt.
The intermediate standard, which usually employs some combination of the words ‘clear’, ‘cogent’, ‘unequivocal’ and ‘convincing’, is less commonly used but nonetheless ‘is no stranger to the civil law’… One typical use of the standard is in civil cases involving allegations of fraud or some other quasi-criminal wrongdoing by the defendant. The interests at stake in those cases are deemed to be more substantial then mere loss of money and some jurisdictions accordingly reduce the risk to the defendant of having his reputation tarnished erroneously by increasing the plaintiff’s burden of proof”.
Chief Justice Burger went on to consider the facts of the case before him. The Appellant was being civilly committed by reason of mental disorder. The Appellant argued that because he was facing a form of incarceration, the fact that he presented a danger to himself or others should be proven beyond a reasonable doubt. The Court refused to apply that standard, largely because of the difficulty of meeting that requirement in a case involving civil committal. Chief Justice Burger points out that in criminal cases there is a straight-forward factual question that has to be answered, namely did the accused commit the act alleged? In a case of civil committal the factual aspects represent “…only the beginning of the inquiry. Whether the individual is mentally ill and dangerous to either himself or others and is in need of confined therapy turns on the meaning of the facts which must be interpreted by expert psychiatrists and psychologists. Given the lack of certainty and the fallibility of psychiatric diagnoses, there is a serious question as to whether a state could ever prove beyond a reasonable doubt that an individual is both mentally ill and likely to be dangerous”.
However, the Court also found that the basic preponderance of the evidence or balance of probabilities standard was insufficient. As Justice Burger pointed out:
“At one time or another every person exhibits some abnormal behaviour which might be perceived as symptomatic of a mental or emotional disorder, but which is in fact within a range of conduct that is generally acceptable. Obviously, such behaviour is no basis for compelled treatment and surely not for confinement. However, there is the possibility that a factfinder might decide to commit an individual based solely on a few isolated instances of unusual conduct. Loss of liberty calls for a showing that the individual suffers from something more serious than is demonstrated by idiosyncratic behaviour. Increasing the burden of proof is one way to impress the factfinder with the importance of the decision and thereby perhaps to reduce the chances that inappropriate commitments will be ordered”.
The Court therefore went on to conclude that the intermediate standard should be applied and that the factfinder should be persuaded on the basis of “clear and convincing” evidence. This standard has come to be referred to in some courts as an “enhanced balance of probabilities”.
The intermediate standard was considered in Canada in the case of Re: Robinson and Hislop [(1981) 114 DLR (3d) 620]. In that case, the British Columbia Supreme Court declined to follow Addington v. Texas, relying on Canadian authority, including the case of Smith v. Smith [(1952) 2 SCR 312], in which Justice Cartwright of the Supreme Court of Canada stated that civil cases may be proved by a preponderance of evidence, but that whether a court can be reasonably satisfied that a matter has been proven will “…depend upon the totality of the circumstances on which its judgment is formed including the gravity of the consequences of the finding”. The Robinson and Hislop decision was followed in Ontario in the case of Re: Hoskins and Hislop [(198) 121 DLR (3d) 337] and in Azhar v. Anderson (unreported).
In 1982 the Supreme Court of Canada decided the case of Continental Insurance Co. v. Dalton Cartage Co. [(1982) 1 SCR 164]. The case involved a denial of coverage under an insurance policy based on fraudulent or dishonest acts by the insured. The Court held that even where “…there is an allegation of conduct that is morally blameworthy or that could have a criminal or penal aspect and the allegation is made in civil litigation, the relevant burden of proof remains proof on a balance of probabilities”. The Court referred to the Smith v. Smith case referred to above and also to the case of Bater v. Bater [(1950) 2 All ER 458], in which Lord Denning stated that although a case may be proved by a preponderance of probability, “… there may be degrees of probability within that standard. The degree depends on the subject matter. A civil court, when considering a charge of fraud, will naturally require a higher degree of probability then that which it would require in considering whether negligence were established. It does not adopt so high a degree as a criminal court, even when it is considering a charge of a criminal nature, but still it does require a degree of probability which is commensurate with the occasion”.
The Supreme Court of Canada went on to state that it did not view Lord Denning’s approach “as a departure from a standard of proof based on a balance of probabilities nor as supporting a shifting standard. The question in all civil cases is what evidence with what weight that is accorded to it will move the court to conclude that proof on a balance of probabilities has been established”.
In the case of Starson v. Swayze, [1999] O.J. No. 4483, the Ontario Superior Court of Justice dealt with a finding by the Ontario Consent and Capacity Board that the Appellant was incapable with respect to making treatment decisions. Justice Molloy referred to the Continental Insurance case, referred to above, as authority for the proposition that where, in a civil matter, “… the allegations being made and the potential consequences are particularly serious, the court should require the evidence to demonstrate a high degree of probability. This assertion is not intended to introduce a different standard of proof, but merely to recognize that a trial judge is justified in scrutinizing evidence with greater care if there are serious allegations to be established… This enhanced civil standard has also been applied to decisions made by administrative tribunals. The standard has been accepted particularly where the interests at stake are high. Loss of employment, reputation and freedom are often considered significant interests that must be protected… While the above-mentioned cases deal primarily with disciplinary tribunals, the interests of an individual in autonomy over medical treatment decisions is at the very least equally as important as those interests dealt with in disciplinary proceedings, perhaps more so. Therefore, the Board is required to apply the enhanced civil standard and should only make a finding of incapacity if there is clear and cogent evidence to support it”.
In L.C. v. Pinhas, [2002] O.J. 5309, the Ontario Superior Court again considered an appeal from the Consent and Capacity Board on a treatment capacity issue. In that case the Court referred to the fact that the Court of Appeal in Starson had not referred to an enhanced balance of probabilities but simply to a balance of probabilities as the test. However, the Court pointed out that the Court of Appeal had substantially agreed with the reasoning of Justice Molloy in first instance, and that it seemed doubtful that the Court of Appeal intended to depart from her reasons in such a material way by imposing a balance of probabilities standard over an enhanced balance of probabilities. The Court went on to apply the “enhanced balance of probabilities” standard. Interestingly, the Supreme Court of Canada in Starson, on appeal from the Ontario Court of Appeal, also failed to refer to an enhanced balance of probabilities.
In a case released in October, the Supreme Court of Canada appears to have put to the rest the argument over the existence of an intermediate standard. The case of F.H. v. McDougall involved allegations of sexual assault by a former resident of an Indian residential school in British Columbia against an Oblate Brother who was a teacher at the school. The action was commenced in the year 2000 and related to incidents which took place in 1968 and 1969. There were no independent witnesses and the case boiled down to a matter of the credibility of the plaintiff as opposed to the defendant. The trial judge believed the plaintiff and awarded damages. The British Columbia Court of Appeal reversed that decision, stating that the trial judge had given insufficient weight to inconsistencies in the plaintiff’s testimony. The matter went to the Supreme Court of Canada, where a significant issue related to the burden of proof. The Supreme Court reviewed the case law and summarized the various approaches in civil cases as follows:
“1. The criminal standard of proof applies in civil cases depending upon the seriousness of the allegations;
2. An intermediate standard of proof between the civil standard and the criminal standard commensurate with the occasion applies to civil cases;
3. No heightened standard of proof applies in civil cases, but the evidence must be scrutinized with greater care where the allegation is serious;
4 No heightened standard of proof applies in civil cases, but evidence must be clear, convincing and cogent; and
5. No heightened standard of proof applies in civil cases, but the more improbable the event, the stronger the evidence is needed to meet the balance of probabilities test.”
Justice Rothstein, writing for a unanimous bench, stated 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. 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 should be rejected for the reasons that follow”.
Justice Rothstein went on to refer to the inherent problems in an intermediate standard of proof, quoting one commentator who said that to suggest that the standard of proof is “higher” than the “mere balance of probabilities” “…leads one inevitably to inquire what percentage of probability must be met? This is unhelpful because while the concept of “51% probability”, or “more likely than not” can be understood by decision makers, the concept of 60% or 70% probability cannot”.
Justice Rothstein went on to say that to suggest “…that depending upon the seriousness, the evidence in the civil case must be scrutinized with greater care implies that in less serious cases the evidence need not be scrutinized with such care. I think 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 that in all cases, evidence must be scrutinized with care by the trial judge… Similarly, evidence must always be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test”.
In Addington v. Texas, Chief Justice Burger said that “the ultimate truth as to how the standards of proof affect decision-making may well be unknowable”. He also said that “adopting a standard of proof is more than an empty semantic exercise”. While the first assertion is undoubtedly true, we are not so sure about the second. The lesson for the practitioner is that the evidence presented in all cases should be “clear and convincing”. However, as one of our partners pointed out, it is never the lawyer’s intention to come to court with evidence that is murky, incomprehensible or unconvincing.
F.H. v. McDougall, 2008 SCC 53