Supreme Court: Civil Standard of Proof Does Not Vary with Seriousness of Allegations

In the recent decision of F.H. v. McDougall (October 2, 2008), the Supreme Court of Canada declared “once and for all” that there is only one standard of proof in civil cases: proof on a balance of probabilities.

F.H. claimed that he had been sexually assaulted by Ian McDougall, who supervised F.H. while he was attending a residential school in the 1960s. Despite the fact that F.H.’s testimony was inconsistent and conflicted with the testimony of other witnesses, the British Columbia Supreme Court found for F.H.

McDougall appealed the trial judge’s findings that he had sexually and physically assaulted F.H. The Court of Appeal dismissed his appeal on the finding that he had physically assaulted F.H., but allowed his appeal on the finding that he had sexually assaulted F.H. The Court of Appeal concluded that the trial judge had failed to scrutinize the evidence, including the serious inconsistencies in F.H.’s evidence, in a manner that was commensurate with the gravity of a sexual assault allegation, and had thereby erred in law. F.H. appealed to the Supreme Court, which allowed his appeal.

The Supreme Court of Canada ruled for the majority that there is only one civil standard of proof. While judges may, where appropriate, be mindful of the gravity of the allegations at issue, such considerations do not alter the applicable standard of proof. The Supreme Court further concluded that, in all cases, the evidence must be scrutinized with care by the trial judge, and must be sufficiently clear, cogent and convincing to satisfy the balance of probabilities test. In so finding, the Court overruled precedents that required a standard of proof commensurate with the seriousness of the allegations or stricter scrutiny of the evidence when criminal or morally blameworthy conduct was alleged.

In this case, the Supreme Court concluded that the Court of Appeal had erred in holding the trial judge to a standard of proof higher than the regular civil standard, and restored the trial judge’s decision.

This decision will have a significant impact on the way arbitrators and judges approach wrongful dismissal actions and grievance arbitrations that involve allegations of criminal or morally blameworthy conduct. Prior to the Supreme Court’s ruling, adjudicators would hold an employer to a stricter standard of proof when certain types of conduct, such as fraud, were alleged, and when the allegations would seriously harm the employee’s reputation. The Supreme Court’s decision puts an end to this practice. Now, in all civil proceedings, including arbitrations, the standard of proof to be applied is the balance of probabilities test, regardless of the seriousness of the allegations.