Balancing Probabilities: The Overlooked Complexity of the Civil Standard of Proof
| Author | Linda R. Rothstein, Robert Centa, and Eric Adams |
| Pages | 455-474 |
Balancing
Probabilities:
The
Overlooked Complexity
of the
Civil
Standard
of
Proof
Linda
R.
Rothstein,
Robert
A.
Centa,
and
Eric
Adams*
A.
INTRODUCTION
AND
OVERVIEW
Every
first-year
law
student learns
the
difference
between
the
standard
of
proof needed
in the
criminal courts
— the
resolute "proof beyond
a
reasonable
doubt"
— and the
standard required
in the
civil context
—
the
elegant "proof
on a
balance
of
probabilities."
At
first
blush,
the
civil
standard seems simple enough: according
to the
classic texts,
the
propo-
nent must establish that
the
"existence
of the
contested
fact
is
more
probable than
its
non-existence,"
or, has
"more than
a 50
percent chance
of
being true."1 However,
despite
the
apparent simplicity
of the
princi-
ple and
tidiness
of the
formula,
in
many civil cases,
the
standard
of
proof
is
neither simple
nor
tidy.
Although volumes
of ink
have been
spilled exploring
the
meaning
and
definition
of the
criminal standard
of
proof,
considerably less attention
has
been paid
to the
equally elusive
Of
Paliare Roland Rosenberg Rothstein
LLP.
All
three authors
are
fond
of the
joke,
"Judges
who
worry about
the
standard
of
proof can't make
up
their
mind."
J.
Sopinka,
S.
Lederman,
and A.
Bryant,
The Law
of
Evidence
in
Canada,
2d ed.
(Markham,
ON:
Butterworths, 1999)
at
155, quoting
C.
Tapper,
Cross
and
Tap-
per
on
Evidence,
8th ed.
(London: Butterworths, 1995)
at
159;
Oliveira
v.
Waivang
Forest
Products
Ltd., [1994] O.J.
No. 798 at
para.
33
(Gen.
Div.),
aff'd
[1996] O.J.
No.
4325
(C.A.).
455
456
LINDA
R.
ROTHSTEIN, ROBERT
A.
CENTA,
AND
ERIC ADAMS
(and
we
would
say
interesting) concept
of the
civil balance
of
probabil-
ities standard.2
We
say
elusive because courts have held that
the
balance
of
proba-
bilities
standard
is
inherently
flexible
and
variant depending
on the
type
of
civil case
at
issue.
The
civil standard
of
proof reveals
its
flexible
nature most typically
in
cases where serious consequences
flow
from
a
civil
decision
— for
example,
in
cases where there
are
allegations
of
fraud
or
professional misconduct. These types
of
allegations
are
consid-
ered unique because they
carry
a
moral stigma that will continue
to
have
an
impact
on the
individual
after
the
completion
of the
case.
In
addition, courts have recognized that certain other types
of
cases
—
such
as
those involving testamentary incapacity where there
are
suspi-
cious circumstances surrounding
the
execution
of the
will
— may
simi-
larly
require
a
flexible
application
of the
standard
of
proof.3
In
cases where courts
and
tribunals have applied this
"flexible
approach," they have stressed that this
is not a
departure
from
the
civil
standard, namely,
proof
on a
balance
of
probabilities.
As
explained
by
the
Court
of
Appeal
of
Ontario, "[w]ithin that standard,
the
degree
of
proof
may
vary depending
on
what
is at
stake."4
As a
result,
the
gravi-
The
explanation
of the
civil standard
of
proof found
in the
leading evidence
texts
is
something
less
than
illuminating.
For
example,
in
D.M. Paciocco
and L.
Stuesser,
The
Law
of
Evidence,
3d ed.
(Toronto:
Irwin
Law, 2002)
the
authors
write,
"In a
civil case,
the
plaintiff
must establish
its
allegation
on the
balance
of
probabilities, although
the
intensity
of
this standard varies with
the
matter
in
issue."
In The Law
of
Evidence
in
Canada,
supra
note
1 at
158,
the
authors
explain, "the trier
of
fact
will consider
the
nature
of a
fact
in
issue, that
is, its
physical,
religious,
moral,
ethical,
social,
or
legal character,
and the
conse-
quences
of its
decision
when
determining
if it is
satisfied
on a
balance
of
prob-
abilities."
MacGregor
v.
Ryan,
[1965] S.C.R.
757 at
766-67.
In
dealing with
the
standard
of
proof
in
cases where there
are
suspicious circumstances surrounding
the
preparation
or
execution
of a
will,
Ritchie
}., for the
majority
held:
"The extent
of
the
proof
required
is
proportionate
to the
gravity
of the
suspicion
and the
degree
of
suspicion
varies
with
the
circumstances
of
each
case."
In
Vout
v.
Hay,
paras.
23-24,
Sopinka
}., for the
Court,
addressed
the
question
of
whether
"suspicious
circumstances impose
a
standard
of
proof
that
is
higher than
the
ordinary civil standard."
In
response,
the
Court held,
"in
accordance with
the
general rule applicable
in
civil cases,
it has now
been
established
that
the
civil standard
of
proof
on a
balance
of
probabilities
applies.
The
evidence
must,
however,
be
scrutinized
in
accordance
with
the
gravity
of the
suspicion."
Burns
Estate
v.
Mellon,
[2000]
O.J.
No.
2130
at
para.
18
(C.A.)
[Burns
Estate].
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