F.H. v. McDougall

F.H. v. McDougall
Collection
Supreme Court Judgments
Date
2008-10-02
Neutral citation
2008 SCC 53
Report
[2008] 3 SCR 41
Case number
32085
Judges
McLachlin, Beverley; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise; Rothstein, Marshall
On appeal from
British Columbia
Subjects
Appeal
Evidence
Notes
SCC Case Information: 32085
Decision Content
SUPREME COURT OF CANADA
Citation: F.H. v. McDougall,
[2008] 3 S.C.R. 41, 2008 SCC 53
Date: 20081002
Docket: 32085
Between:
F.H.
Appellant
and
Ian Hugh McDougall
Respondent
And Between:
F.H.
Appellant
and
The Order of the Oblates of Mary Immaculate
in the Province of British Columbia
Respondent
And Between:
F.H.
Appellant
and
Her Majesty The Queen in Right of Canada as represented
by the Minister of Indian Affairs and Northern Development
Respondent
Coram: McLachlin C.J. and LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.
Reasons for Judgment:
(paras. 1 to 102)
Rothstein J. (McLachlin C.J. and LeBel, Deschamps, Fish, Abella and Charron JJ. concurring)
______________________________
F.H. v. McDougall, [2008] 3 S.C.R. 41, 2008 SCC 53
F.H. Appellant
v.
Ian Hugh McDougall Respondent
- and -
F.H. Appellant
v.
The Order of the Oblates of Mary Immaculate
in the Province of British Columbia Respondent
- and -
F.H. Appellant
v.
Her Majesty The Queen in Right of Canada as represented
by the Minister of Indian Affairs and Northern Development Respondent
Indexed as: F.H. v. McDougall
Neutral citation: 2008 SCC 53.
File No.: 32085.
2008: May 15; 2008: October 2.
Present: McLachlin C.J. and LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.
on appeal from the court of appeal for british columbia
Evidence — Standard of proof — Allegations of sexual assault in a civil case — Inconsistencies in complainant’s testimony — Whether Court of Appeal erred in holding trial judge to standard of proof higher than balance of probabilities.
Evidence — Corroborative evidence — Allegations of sexual assault in a civil case — Whether victim must provide independent corroborating evidence.
Appeals — Standard of review — Applicable standard of appellate review on questions of fact and credibility.
From 1966 to 1974, H was a resident of the Sechelt Indian Residential School in British Columbia, an institution operated by the Oblates of Mary Immaculate and funded by the Canadian government. M was an Oblate Brother at the school and also the junior and intermediate boys’ supervisor from 1965 to 1969. H claimed to have been sexually assaulted by M in the supervisors’ washroom when he was approximately 10 years of age. These assaults were alleged to have occurred when the children were lined up and brought, one by one, into the washroom to be inspected by the supervisors for cleanliness. H told no one about the assaults until 2000, when he confided in his wife. He then commenced this action against the respondents. Despite inconsistencies in his testimony as to the frequency and gravity of the sexual assaults, the trial judge found that H was a credible witness and concluded that he had been anally raped by M on four occasions during the 1968‑69 school year. In addition, she found that M had physically assaulted H by strapping him on numerous occasions. A majority of the Court of Appeal overturned the decision with respect to the sexual assaults on the grounds that the trial judge had failed to consider the serious inconsistencies in H’s testimony in determining whether the alleged sexual assaults had been proven to the standard of proof that was “commensurate with the allegation”, and had failed to scrutinize the evidence in the manner required.
Held: The appeal should be allowed and the trial judge’s decision restored.
There is only one standard of proof in a civil case and that is proof on a balance of probabilities. Although there has been some suggestion in the case law that the criminal burden applies or that there is a shifting standard of proof, where, as here, criminal or morally blameworthy conduct is alleged, in Canada, there are no degrees of probability within that civil standard. If a trial judge expressly states the correct standard of proof, or does not express one at all, it will be presumed that the correct standard was applied unless it can be demonstrated that an incorrect standard was applied. Further, the appellate court must ensure that it does not substitute its own view of the facts with that of the trial judge in determining whether the correct standard was applied. In every civil case, a judge should be mindful of, and, depending on the circumstances, may take into account, the seriousness of the allegations or consequences or inherent improbabilities, but these considerations do not alter the standard of proof. One legal rule applies in all cases and that is that the evidence must be scrutinized with care by the trial judge in deciding whether it is more likely than not that an alleged event has occurred. Further, the evidence must always be clear, convincing and cogent in order to satisfy the balance of probabilities test. In serious cases such as this one, where there is little other evidence than that of the plaintiff and the defendant, and the alleged events took place long ago, the judge is required to make a decision, even though this may be difficult. Appellate courts must accept that if a responsible trial judge finds for the plaintiff, the evidence was sufficiently clear, convincing and cogent to that judge that the plaintiff satisfied the balance of probabilities test. In this case, the Court of Appeal erred in holding the trial judge to a higher standard of proof. This is sufficient to decide the appeal. [30] [40] [44-46] [49] [53-54]
In finding that the trial judge failed to scrutinize H’s evidence in the manner required by law, in light of the inconsistencies in his evidence and the lack of support from the surrounding circumstances, the Court of Appeal also incorrectly substituted its credibility assessment for that of the trial judge. Assessing credibility is clearly in the bailiwick of the trial judge for which he or she must be accorded a heightened degree of deference. Where proof is on a balance of probabilities, there is no rule as to when inconsistencies in the evidence of a plaintiff will cause a trial judge to conclude that the plaintiff’s evidence is not credible or reliable. The trial judge must not consider the plaintiff’s evidence in isolation, but should consider the totality of the evidence in the case, and assess the impact of any inconsistencies on questions of credibility and reliability pertaining to the core issue in the case. It is apparent from her reasons that the trial judge recognized this obligation upon her, and while she did not deal with every inconsistency, she did address in a general way the arguments put forward by the defence. Despite significant inconsistencies in his testimony concerning the frequency and severity of the sexual assaults, and the differences between his trial evidence and answers on previous occasions, the trial judge found that H was nevertheless a credible witness. Where a trial judge demonstrates that he or she is alive to the inconsistencies but still concludes that the witness was nonetheless credible, in the absence of palpable and overriding error, there is no basis for interference by the appellate court. Here, the Court of Appeal identified no such error. [52] [58-59] [70] [72-73] [75-76]
In addition, while it is helpful and strengthens the evidence of the party relying on it, as a matter of law, in cases of oath against oath, there is no requirement that a sexual assault victim must provide independent corroborating evidence. Such evidence may not be available, especially where the alleged incidents took place decades earlier. Also, incidents of sexual assault normally occur in private. Requiring corroboration would elevate the evidentiary requirement in a civil case above that in a criminal case. Trial judges faced with allegations of sexual assault may find that they are required to make a decision on the basis of whether they believe the plaintiff or the defendant and as difficult as that may be, they are required to assess the evidence and make their determination without imposing a legal requirement for corroboration. In civil cases in which there is conflicting testimony, the judge must decide whether a fact occurred on a balance of probabilities, and provided the judge has not ignored evidence, finding the evidence of one party credible may well be conclusive of the result on an important issue because that evidence is inconsistent with that of the other party. In such cases, believing one party will mean explicitly or implicitly that the other party was not believed on an important issue. That may be especially true where a plaintiff makes allegations that are altogether denied by the defendant, as in this case. Here, the Court of Appeal was correct in finding that the trial judge did not ignore M’s evidence or marginalize him, but simply believed H on essential matters rather than M. [77] [80-81] [86] [96]
Finally, an unsuccessful party may well be dissatisfied with the reasons of a trial judge, especially where he or she was not believed. Where findings of credibility must be made, it must be recognized that it may be very difficult for the trial judge to put into words the process by which the decision is arrived at, but that does not make the reasons inadequate. Nor are reasons inadequate because in hindsight, it may be possible to say that the reasons were not as clear and comprehensive as they might have been. The Court of Appeal found that the trial judge’s reasons showed why she arrived at her conclusion that H had been sexually assaulted by M. Its conclusion that the trial judge’s reasons were adequate should not be disturbed. [100-101]
Cases Cited
Applied: Hanes v. Wawanesa Mutual Insurance Co., [1963] S.C.R. 154; R. v. Lifchus, [1997] 3 S.C.R. 320; H.L. v. Canada (Attorney General), [2005] 1 S.C.R. 401, 2005 SCC 25; R. v. Gagnon, [2006] 1 S.C.R. 621, 2006 SCC 17; R. v. Sheppard, [2002] 1 S.C.R. 869, 2002 SCC 26; R. v. Walker, [2008] 2 S.C.R. 245, 2008 SCC 34; R. v. R.E.M., [2008] 3 S.C.R. 3, 2008 SCC 51; referred to: H.F. v. Canada (Attorney General), [2002] B.C.J. No. 436 (QL), 2002 BCSC 325; R. v. W. (D.), [1991] 1 S.C.R. 742; Bater v. Bater, [1950] 2 All E.R. 458; R. v. Oakes, [1986] 1 S.C.R. 103; Continental Insurance Co. v. Dalton Cartage Co., [1982] 1 S.C.R. 164; Heath v. College of Physicians & Surgeons (Ontario) (1997), 6 Admin. L.R. (3d) 304; R (McCann) v. Crown Court at Manchester, [2003] 1 A.C. 787, [2002] UKHL 39; In re H. (Minors) (Sexual Abuse: Standard of Proof), [1996] A.C. 563; In re B (Children), [2008] 3 W.L.R. 1, [2008] UKHL 35; R. v. Burns, [1994] 1 S.C.R. 656; Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33; R. v. R.W.B. (1993), 24 B.C.A.C. 1; R. v. J.H.S., [2008] 2 S.C.R. 152, 2008 SCC 30; Faryna v. Chorny, [1952] 2 D.L.R. 354.
Statutes and Regulations Cited
Act to amend the Criminal Code in relation to sexual offences and other offences against the person and to amend certain other Acts in relation thereto or in consequence thereof, S.C. 1980‑81‑82‑83, c. 125.
Criminal Code, R.S.C. 1970, c. C‑34, s. 139(1).
Criminal Code, R.S.C. 1985, c. C‑46, s. 274 .
Limitation Act, R.S.B.C. 1996, c. 266, s. 3(4)(l).
Authors Cited
Rothstein, Linda R., Robert A. Centa and Eric Adams. “Balancing Probabilities: The Overlooked Complexity of the Civil Standard of Proof”, in Special Lectures of the Law Society of Upper Canada 2003: The Law of Evidence. Toronto: Irwin Law, 2004, 455.
Sopinka, John, Sidney N. Lederman, and Alan W. Bryant. The Law of Evidence in Canada, 2nd ed. Toronto: Butterworths, 1999.
APPEAL from a judgment of the British Columbia Court of Appeal (Southin, Rowles and Ryan JJ.) (2007), 68 B.C.L.R. (4th) 203 (sub nom. C. (R.) v. McDougall), [2007] 9 W.W.R. 256, 41 C.P.C. (6th) 213, 239 B.C.A.C. 222, 396 W.A.C. 222, [2007] B.C.J. No. 721 (QL), 2007 CarswellBC 723, 2007 BCCA 212, allowing the appeal against Gill J.’s decision in the case of sexual assault but dismissing the appeal from her finding of physical assault, [2005] B.C.J. No. 2358 (QL) (sub nom. R.C. v. McDougall), 2005 CarswellBC 2578, 2005 BCSC 1518. Appeal allowed.
Allan Donovan, Karim Ramji and Niki Sharma, for the appellant.
Bronson Toy, for the respondent Ian Hugh McDougall.
F. Mark Rowan, for the respondent The Order of the Oblates of Mary Immaculate in the Province of British Columbia.
Peter Southey and Christine Mohr, for the respondent Her Majesty the Queen in Right of Canada.
The judgment of the Court was delivered by
[1] Rothstein J. — The Supreme Court of British Columbia found in a civil action that the respondent, Ian Hugh McDougall, a supervisor at the Sechelt Indian Residential School, had sexually assaulted the appellant, F.H., while he was a student during the 1968-69 school year. A majority of the British Columbia Court of Appeal allowed the respondent’s appeal in part, and reversed the decision of the trial judge. I would allow the appeal to this Court and restore the judgment of the trial judge.
I. Facts
[2] The Sechelt Indian Residential School was established in 1904 in British Columbia. It was funded by the Canadian government and operated by the Oblates of Mary Immaculate. F.H. was a resident student at the school from September 1966 to March 1967 and again from September 1968 to June 1974. Ian Hugh McDougall was an Oblate Brother until 1970 and was the junior and intermediate boys’ supervisor at the school from 1965 to 1969.
[3] The school building had three stories. Dormitories for junior and senior boys were located on the top floor. A supervisors’ washroom was also located on the top floor and was accessible through a washroom for the boys. The intermediate boys’ dormitory was on the second floor. McDougall had a room in the corner of that dormitory.
[4] F.H. claims to have been sexually assaulted by McDougall in the supervisors’ washroom when he was approximately 10 years of age. At trial, he testified that McDougall sexually abused him on four occasions. The trial judge set out his evidence of these incidents at paras. 34-38 of her reasons:
As to the first occasion, F.H. had been in the dormitory with others. The defendant asked four boys to go upstairs to the main washroom where they were to wait before going to the supervisors’ washroom for an examination. F.H. was the last to go into the washroom to be examined. When he went in, he was asked to remove his pyjamas and while facing the defendant, he was checked from head to toe. His penis was fondled. The defendant then turned him around, asked him to bend over and put his finger in his anus. He removed his clothing, grabbed F.H. around the waist, pulled him onto his lap and raped him. The defendant had put the cover of the toilet down and was using it as a seat. After the defendant ejaculated, he told the plaintiff to put on his pyjamas and leave the room.
F.H. was shocked. He did not cry or scream, nor did he say anything. When he went to the main communal washroom, he could see that he was bleeding. The next morning, he noticed blood in his pyjamas. He went downstairs to the boys’ washroom and changed. The bloody pyjamas were rinsed and placed in his locker.
The second incident was approximately two weeks after the first. F.H. was in the dormitory getting ready for bed when the defendant asked him to go to the supervisors’ washroom so he could do an examination. There were no other boys present. F.H. was asked to remove his pyjamas and again, he was raped. He went to the communal washroom to clean himself up. In the morning, he realized that his pyjamas were bloody. As it was laundry day, he threw his pyjamas in the laundry bin with the sheets.
The third incident occurred approximately one month later. F.H. testified that once again he was asked to go to the supervisors’ washroom, remove his pyjamas and turn around. Again, the defendant grabbed him by the waist and raped him. He was bleeding, but could not recall whether there was blood on his pyjamas.
The fourth incident occurred approximately one month after the third. As he was getting ready for bed, the defendant grabbed him by the shoulder and took him upstairs to the supervisors’ washroom. Another rape occurred.
([2005] B.C.J. No. 2358 (QL), 2005 BCSC 1518)
[5] F.H. did not tell anyone about the assaults until approximately the year 2000. He and his wife were having marital difficulties. She had learned of his extra‑marital affair. He testified that because of the problems in his marriage he felt he had to tell his wife about his childhood experience. At his wife’s recommendation, he sought counselling.
[6] F.H. commenced his action against the respondents on December 7, 2000, approximately 31 years after the alleged sexual assaults. In British Columbia there is no limitation period applicable to a cause of action based on sexual assault and the action may be brought at any time (see Limitation Act, R.S.B.C. 1996, c. 266, s. 3(4)(l)).
II. Judgments Below
A. British Columbia Supreme Court, [2005] B.C.J. No. 2358 (QL), 2005 BCSC 1518
[7] F.H.’s action was joined with the action of R.C., another former resident of the school who made similar claims against the same parties. The parties agreed to have a trial on the following discrete issues of fact:
(1) Was either plaintiff physically or sexually abused while he attended the school?
(2) If the plaintiff was abused
(a) by whom was he abused?
(b) when did the abuse occur? and
(c) what are the particulars of the abuse?
[8] The trial judge, Gill J., began her reasons by noting that the answer to the questions agreed to by the parties depended on findings as to credibility and reliability. Few issues of law were raised. She referred to H.F. v. Canada (Attorney General), [2002] B.C.J. No. 436 (QL), 2002 BCSC 325, in which the court stated that in cases involving serious allegations and grave consequences, the civil standard of proof that is “commensurate with the occasion” applied (para. 4).
[9] The trial judge then went on to review the testimony of each plaintiff, McDougall and others who worked at the school or were former students. McDougall denied the allegations of sexual abuse and testified that he could not recall ever strapping F.H. He also denied ever conducting physical examinations of the boys and gave evidence that boys were not taken into the supervisors’ washroom.
[10] In determining whether F.H. was sexually assaulted, the trial judge dealt with the arguments of the defence that F.H.’s evidence was neither reliable nor credible. Gill J. rejected the defence’s position that F.H.’s inability to respond to certain questions should lead to an adverse conclusion regarding the reliability of his evidence. She found F.H.’s testimony credible while acknowledging that the commission of the assaults in the manner described by F.H. would have carried with it a risk of detection. Gill J. also rejected the contention of defence counsel that F.H.’s motive to lie must weigh heavily against his credibility. Rather she agreed with counsel for F.H. that the circumstances surrounding his disclosure were not suggestive of concoction.
[11] The trial judge pointed out areas of consistency and inconsistency between F.H.’s testimony and that of the other students at the school. She also noted that there were significant discrepancies in the evidence given by F.H. as to the frequency of the abuse. At trial, F.H. said there were four incidents. On previous occasions, he said the abuse occurred every two weeks or ten days. Despite these inconsistencies, the trial judge concluded F.H. was a credible witness and stated that his evidence about “the nature of the assaults, the location and the times they occurred” had been consistent (para. 112). She concluded that F.H. had been sexually abused by McDougall, the sexual assaults being four incidents of anal intercourse committed during the 1968-69 school year.
[12] In relation to the issue of physical abuse, the trial judge limited herself to deciding whether the plaintiffs had proved that they were strapped while at school. To answer this question, the trial judge reviewed the evidence of McDougall and the testimony of another Brother employed at the school as well as the testimony of several of F.H.’s fellow students. She concluded that strapping was a common form of discipline and that it was not used only in response to serious infractions. She concluded that F.H. was strapped by McDougall an undetermined number of times while at the school.
[13] With respect to the claims made by R.C., the trial judge found that he had not proven that he had been sexually assaulted, but found that he had been strapped by a person other than McDougall.
B. British Columbia Court of Appeal (2007), 68 B.C.L.R. (4th) 203, 2007 BCCA 212
[14] The decision of the Court of Appeal was delivered by Rowles J.A., with Southin J.A. concurring. Ryan J.A. dissented.
(1) Reasons of Rowles J.A.
[15] Rowles J.A. concluded that McDougall’s appeal from that part of the order finding that he had sexually assaulted F.H. should be allowed; however his appeal from that part of the order finding that he had strapped F.H. should be dismissed.
[16] Rowles J.A. found that it was obvious that the trial judge was aware of the case authorities that have considered the standard of proof to be applied in cases where allegations of morally blameworthy conduct have been made, i.e. proof that is “commensurate with the occasion”. However, in her view, the trial judge was bound to consider the serious inconsistencies in the evidence of F.H. in determining whether the alleged sexual assaults had been proven to the standard “commensurate with the allegation”. She found that the trial judge did not scrutinize the evidence in the manner required and thereby erred in law.
[17] In allowing the appeal in respect of the sexual assaults alleged by F.H., Rowles J.A. was of the opinion that in view of the state of the evidence on that issue, no practical purpose would be served by ordering a new trial.
(2) Concurring Reasons of Southin J.A.
[18] In her concurring reasons, Southin J.A. discussed the “troubling aspect” of the case — “how, in a civil case, is the evidence to be evaluated when it is oath against oath, and what is the relationship of the evaluation of the evidence to the burden of proof?” (para. 84).
[19] Southin J.A. held that it was of central importance that the gravity of the allegations be forefront in the trier of fact’s approach to the evidence. It was not enough, in her view, to choose the testimony of the plaintiff over that of the defendant. Instead, “[t]o choose one over the other . . . requires . . . an articulated reason founded in evidence other than that of the plaintiff” (para. 106). Moreover, Southin J.A. found that Cory J.’s rejection in R. v. W. (D.), [1991] 1 S.C.R. 742, of the “either/or” approach to evaluating evidence of the Crown and the accused as to the conduct of the accused in criminal cases also applied to civil cases.
[20] In the end, she could not find in the trial judge’s reasons a “legally acceptable articulated reason for accepting the plaintiff’s evidence and rejecting the defendants’ evidence” (para. 112).
(3) Dissenting Reasons of Ryan J.A.
[21] While sharing the concerns of the majority about “the perils of assigning liability in cases where the events have occurred so long ago”, Ryan J.A. disagreed with the conclusion that the trial judge did not apply the proper standard of proof to her assessment of the evidence (para. 115).
[22] Ryan J.A. noted that the trial judge set out the test — a standard of proof commensurate with the occasion — early in her reasons. “Having set out the proper test, we must assume that she properly applied it, unless her reasons demonstrate otherwise” (para. 116).
[23] In the view of Ryan J.A., alleging that the trial judge misapplied the standard of proof to her assessment of the evidence was to say that the trial judge erred in her findings of fact. To overturn the trial judge’s findings of fact, the appellate court must find that the trial judge made a manifest error, ignored conclusive or relevant evidence or drew unreasonable conclusions from it.
[24] Ryan J.A. was of the view that the trial judge had made no such error. The trial judge had acknowledged the most troubling aspect of F.H.’s testimony — that it was not consistent with earlier descriptions of the abuse — and decided that at its core, the testimony was consistent and truthful. The inconsistencies were not overlooked by the trial judge.
[25] Having found no error in the reasons for judgment, Ryan J.A. was of the view that the Court of Appeal should have deferred to the conclusions of the trial judge. Accordingly, she would have dismissed the appeal.
III. Analysis
A. The Standard of Proof
(1) Canadian Jurisprudence
[26] Much has been written as judges have attempted 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. Such cases include allegations of fraud, professional misconduct, and criminal conduct, particularly sexual assault against minors. As explained by L. R. Rothstein, R. A. Centa and E. Adams, in “Balancing Probabilities: The Overlooked Complexity of the Civil Standard of Proof” in Special Lectures of the Law Society of Upper Canada 2003: The Law of Evidence (2004), 455, at p. 456:
These types of allegations are considered unique because they carry a moral stigma that will continue to have an impact on the individual after the completion of the case.
[27] Courts in British Columbia have tended to follow the approach of Lord Denning in Bater v. Bater, [1950] 2 All E.R. 458 (C.A.). Lord Denning was of the view that within the civil standard of proof on a balance of probabilities “there may be degrees of probability within that standard” (p. 459), depending upon the subject matter. He stated:
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. [p. 459]
[28] In the present case the trial judge referred to H.F. v. Canada (Attorney General), at para. 154, in which Neilson J. stated:
The court is justified in imposing a higher degree of probability which is “commensurate with the occasion”: . . . .
[29] In the constitutional context, Dickson C.J. adopted the Bater approach in R. v. Oakes, [1986] 1 S.C.R. 103. In his view a “very high degree of probability” required that the evidence be cogent and persuasive and make clear the consequences of the decision one way or the other. He wrote at p. 138:
Having regard to the fact that s. 1 is being invoked for the purpose of justifying a violation of the constitutional rights and freedoms the Charter was designed to protect, a very high degree of probability will be, in the words of Lord Denning, “commensurate with the occasion”. Where evidence is required in order to prove the constituent elements of a s. 1 inquiry, and this will generally be the case, it should be cogent and persuasive and make clear to the Court the consequences of imposing or not imposing the limit.
[30] However, a “shifting standard” of probability has not been universally accepted. In Continental Insurance Co. v. Dalton Cartage Co., [1982] 1 S.C.R. 164, Laskin C.J. rejected a “shifting standard”. Rather, to take account of the seriousness of the allegation, he was of the view that a trial judge should scrutinize the evidence with “greater care”. At pp. 169-71 he stated:
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. . . .
. . . There is necessarily a matter of judgment involved in weighing evidence that goes to the burden of proof, and a trial judge is justified in scrutinizing evidence with greater care if there are serious allegations to be established by the proof that is offered. . . .
I do not regard such an approach (the Bater 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.
[31] In Ontario Professional Discipline cases, the balance of probabilities requires that proof be “clear and convincing and based upon cogent evidence” (see Heath v. College of Physicians & Surgeons (Ontario) (1997), 6 Admin. L.R. (3d) 304 (Ont. Ct. (Gen. Div.)), at para. 53).
(2) Recent United Kingdom Jurisprudence
[32] In the United Kingdom some decisions have indicated that depending upon the seriousness of the matters involved, even in civil cases, the criminal standard of proof should apply. In R (McCann) v. Crown Court at Manchester, [2003] 1 A.C. 787, [2002] UKHL 39, Lord Steyn said at para. 37:
. . . I agree that, given the seriousness of matters involved, at least some reference to the heightened civil standard would usually be necessary: In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563, 586 D‑H, per Lord Nicholls of Birkenhead. For essentially practical reasons, the Recorder of Manchester decided to apply the criminal standard. The Court of Appeal said that would usually be the right course to adopt. Lord Bingham of Cornhill has observed that the heightened civil standard and the criminal standard are virtually indistinguishable. I do not disagree with any of these views. But in my view pragmatism dictates that the task of magistrates should be made more straightforward by ruling that they must in all cases under section 1 apply the criminal standard.
[33] Yet another consideration, that of “inherent probability or improbability of an event” was discussed by Lord Nicholls in In re H. (Minors) (Sexual Abuse: Standard of Proof), [1996] A.C. 563 (H.L.), at p. 586:
. . . the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established.
[34] Most recently in In re B (Children), [2008] 3 W.L.R. 1, [2008] UKHL 35, a June 11, 2008 decision, the U.K. House of Lords again canvassed the issue of standard of proof. Subsequent to the hearing of the appeal, Mr. Southey, counsel for the Attorney General of Canada, with no objection from other counsel, brought this case to the attention of the Court.
[35] Lord Hoffmann addressed the “confusion” in the United Kingdom courts over this issue. He stated at para. 5:
Some confusion has however been caused by dicta which suggest that the standard of proof may vary with the gravity of the misconduct alleged or even the seriousness of the consequences for the person concerned. The cases in which such statements have been made fall into three categories. First, there are cases in which the court has for one purpose classified the proceedings as civil (for example, for the purposes of article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms) but nevertheless thought that, because of the serious consequences of the proceedings, the criminal standard of proof or something like it should be applied. Secondly, there are cases in which it has been observed that when some event is inherently improbable, strong evidence may be needed to persuade a tribunal that it more probably happened than not. Thirdly, there are cases in which judges are simply confused about whether they are talking about the standard of proof or about the role of inherent probabilities in deciding whether the burden of proving a fact to a given standard has been discharged.
[36] The unanimous conclusion of the House of Lords was that there is only one civil standard of proof. At para. 13, Lord Hoffmann states:
I think that the time has come to say, once and for all, that there is only one civil standard of proof and that is proof that the fact in issue more probably occurred than not.
However, Lord Hoffmann did not disapprove of application of the criminal standard depending upon the issue involved. Following his very clear statement that there is only one civil standard of proof, he somewhat enigmatically wrote, still in para. 13:
I do not intend to disapprove any of the cases in what I have called the first category, but I agree with the observation of Lord Steyn in McCann’s case, at p. 812, that clarity would be greatly enhanced if the courts said simply that although the proceedings were civil, the nature of the particular issue involved made it appropriate to apply the criminal standard.
[37] Lord Hoffmann went on to express the view that taking account of inherent probabilities was not a rule of law. At para. 15 he stated:
I wish to lay some stress upon the words I have italicised [“to whatever extent is appropriate in the particular case”]. Lord Nicholls [In re H] was not laying down any rule of law. There is only one rule of law, namely that the occurrence of the fact in issue must be proved to have been more probable than not. Common sense, not law, requires that in deciding this question, regard should be had, to whatever extent appropriate, to inherent probabilities.
[38] In re B is a child case under the United Kingdom Children Act 1989. While her comments on standard of proof are confined to the 1989 Act, Baroness Hale explained that neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. At paras. 70-72, she stated:
My Lords, for that reason I would go further and announce loud and clear that the standard of proof in finding the facts necessary to establish the threshold under section 31(2) or the welfare considerations in section I of the 1989 Act is the simple balance of probabilities, neither more nor less. Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies.
As to the seriousness of the consequences, they are serious either way. A child may find her relationship with her family seriously disrupted; or she may find herself still at risk of suffering serious harm. A parent may find his relationship with his child seriously disrupted; or he may find himself still at liberty to maltreat this or other children in the future.
As to the seriousness of the allegation, there is no logical or necessary connection between seriousness and probability. Some seriously harmful behaviour, such as murder, is sufficiently rare to be inherently improbable in most circumstances. Even then there are circumstances, such as a body with its throat cut and no weapon to hand, where it is not at all improbable. Other seriously harmful behaviour, such as alcohol or drug abuse, is regrettably all too common and not at all improbable.
(3) Summary of Various Approaches
[39] I summarize the various approaches in civil cases where criminal or morally blameworthy conduct is alleged as I understand them:
(1) The criminal standard of proof applies in civil cases depending upon the seriousness of the allegation;
(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.
(4) The Approach Canadian Courts Should Now Adopt
[40] Like the House of Lords, I think 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.
[41] Since Hanes v. Wawanesa Mutual Insurance Co., [1963] S.C.R. 154, at pp. 158-64, it has been clear that the criminal standard is not to be applied to civil cases in Canada. The criminal standard of proof beyond a reasonable doubt is linked to the presumption of innocence in criminal trials. The burden of proof always remains with the prosecution. As explained by Cory J. in R. v. Lifchus, [1997] 3 S.C.R. 320, at para. 27:
First, it must be made clear to the jury that the standard of proof beyond a reasonable doubt is vitally important since it is inextricably linked to that basic premise which is fundamental to all criminal trials: the presumption of innocence. The two concepts are forever as closely linked as Romeo with Juliet or Oberon with Titania and they must be presented together as a unit. If the presumption of innocence is the golden thread of criminal justice then proof beyond a reasonable doubt is the silver and these two threads are forever intertwined in the fabric of criminal law. Jurors must be reminded that the burden of proving beyond a reasonable doubt that the accused committed the crime rests with the prosecution throughout the trial and never shifts to the accused.
[42] By contrast, in civil cases, there is no presumption of innocence. As explained by J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at p. 154:
Since society is indifferent to whether the plaintiff or the defendant wins a particular civil suit, it is unnecessary to protect against an erroneous result by requiring a standard of proof higher than a balance of probabilities.
It is true that there may be serious consequences to a finding of liability in a civil case that continue past the end of the case. However, the civil case does not involve the government’s power to penalize or take away the liberty of the individual.
[43] An intermediate standard of proof presents practical problems. As expressed by Rothstein, Centa and Adams, at pp. 466-67:
As well, 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.
[44] Put another way, it would seem incongruous for a judge to conclude that it was more likely than not that an event occurred, but not sufficiently likely to some unspecified standard and therefore that it did not occur. As Lord Hoffmann explained in In re B at para. 2:
If a legal rule requires a fact to be proved (a “fact in issue”), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a b