One of the predominant topics in any discussion about administrative law is standard of review. The standard of review is at the heart of judicial review proceedings. What I find much more interesting is standard of proof. The vast majority of administrative law decisions never go to judicial review, or even to an administrative appeal tribunal. The decision at first instance is often the final decision. From that perspective, the standard of proof is a far more important concept.
Statutory Standards of Proof
For administrative tribunals, the default is the civil standard of proof on the balance of probabilities, subject to any express statutory provision to the contrary: Stetler v. Agriculture, Food and Rural Affairs Appeal, 2005 CanLII 24217 (ON CA). There are numerous statutes providing various administrative bodies with a higher or lower standard of proof.
For example, in nearly all common law provinces, workers’ compensation cases are subject to a standard of proof that is modified by statute or regulation. In situations where the evidence on an issue is evenly weighted, the decision maker must come to a conclusion that favours the worker. The BC version of this provision was the subject of a recent Slaw article. Another example is the “reasonably satisfied” standard set out in the Canada Pension Plan, R.S.C., 1985, c. C-8. In fact, a single statute can set out different standards of proof that might apply depending on the level of adjudication within the administrative body and the legal issue to be decided, such as the Immigration and Refugee Protection Act,S.C. 2001, c. 27. As well, a line of authorities suggests that there is a higher standard of proof in establishing a prima facie case of discrimination in human rights tribunal hearings: SMS Equipment Inc v Communications, Energy and Paperworkers Union, Local 707, 2015 ABQB 162 at para. 54.
The existence of an intermediate statutory standard was at the core of the recent case of Jacobs v. Ottawa (Police Service), 2016 ONCA 345 (CanLII), leave to appeal denied 2017 CanLII 444 (SCC). Jacobs dealt with s. 84(1) of the Police Services Act, R.S.O. 1990, c. P.15, which sets out the evidentiary standard that applies to a finding of misconduct. The Divisional Court found that s. 84(1) was simply an expression of the civil standard.
While the Court of Appeal acknowledged the Supreme Court of Canada’s pronouncement in F.H. v. McDougall, 2008 SCC 53 that there is only one standard of proof in civil proceedings, it confirmed that the civil standard could be modified by statute and that the Police Services Act had, in fact, modified the applicable standard in that case.
What is the Civil Standard, Exactly?
It is one thing to identify the standard of proof, it is another thing to define and apply it, especially if it is an intermediate statutory standard. While it is relatively simple to describe the civil standard as a probability of 50% plus one, and easy to apply in cases that do not involve much factual grey area, it is not so easy to apply in those where the probabilities are nearly equally divided.
It is interesting to note that there was little differentiation between the standard of proof in criminal and civil proceedings until the 19th century. The modern civil standard dates back to Doe dem. Devine v. Wilson (1855), 10 Moo. P.C.C. 502 and Cooper v. Slade, (1858), 6 H.L. Cas. 746. In the development of the standard, the difficulty arose in applying the civil standard to cases with quasi-criminal elements (defence allegations of fraud or crime on the plaintiff’s part), family law proceedings in the time before no-fault divorce, or matters of equity decided in the common law courts.
Various common-law world cases grappled with this matter: Briginshaw v. Briginshaw (1938), 60 C.L.R. 336 (Aust.H.C.); London Life Insurance Co. v. Trustee of the Property of Lang Shirt Co. Ltd.,  S.C.R. 117, Bater v. Bater,  2 All E.R. 458 (C.A.), Hanes v. Wawanesa Mutual Insurance Co.,  S.C.R. 154, and Continental Insurance Co. v. Dalton Cartage Co.,  1 S.C.R. 164, to name a few. Even R. v. Oakes, (1986), 26 D.L.R. 200 (S.C.C.), best known as the criminal law case that it is, weighed in on the matter of the civil standard, echoing Lord Denning’s pronouncement in Bater that there may be degrees of probability within the civil standard.
In McDougall, the Supreme Court tried to put an end to the decades of debate as to the nature of the civil standard in Canada – whether it was “flexible” or if there were “degrees of probability” within the standard. At para. 49, Rothstein J unequivocally stated that “there is only one standard of proof and that is proof on a balance of probabilities. In all civil cases, the trial judge must scrutinize the relevant evidence with care to determine whether it is more likely than not that an alleged event occurred”.
At its simplest, as noted by Rothstein J., the balance of probabilities is a binary test: either something is or it is not. However, Rothstein J. cautioned, at para. 40, that a trier of fact must be mindful of “inherent probabilities or improbabilities or the seriousness of the allegations or consequences”, adding that this does not change the standard of proof. Further, at para. 46, he said that “evidence must always be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test”.
To me, this is somewhat contrary to the court’s attempt to end the discussion once and for all. With the civil standard, something, no matter how small, must tip the scale. It is the determination of what tips the scale in which the difficulty lies. I would not be the first to suggest that being mindful of the seriousness of an allegation or a consequence of an outcome cannot but affect the standard that is applied. As well, the concept of “inherent probabilities or improbabilities” is vague and undefined, relying on what was then a very recent case from the UK, In re B, 2008 UKHL 35. That case provides little clarity as to the meaning of the term. In fact, it almost reads like a restatement of the concept of res ipsa loquitur, which had been done away with in Fontaine v. British Columbia (Official Administrator), 1998 CanLII 814 (SCC).
McDougall was not the S.C.C.’s first attempt to abolish the concept of a flexible civil standard or the idea that it had degrees of probability. In Dalton at p. 171, Laskin C.J. clearly rejected the idea of a flexible civil standard in Canadian law. Despite the definitive nature of the Chief Justice Laskin’s pronouncement, subsequent case law (including Oakes) revived the concepts of flexibility and degrees of probability. In fact, Dalton was often cited as an authority approving of the flexible civil standard, which should not be surprising given some internal logical inconsistencies in the case and Laskin C.J.’s reliance on Bater.
Last month, in Nelson (City) v. Mowatt, 2017 SCC 8 at para. 40, Brown J. noted that “clear, convincing and cogent” is a relative concept. He wrote that while the civil standard always remains the same, the question goes to the quality of the evidence by which the standard is to be met. Relying on Delgamuukw v. British Columbia,  3 S.C.R. 1010, at para. 82 and Canada (Attorney General) v. Fairmont Hotels Inc., 2016 SCC 56 (another decision authored by Brown J.) at para. 36, Brown J. wrote that “the quality of evidence necessary to meet that threshold so as to satisfy a trier of fact of a proposition on a balance of probabilities will depend upon the nature of the claim and of the evidence capable of being adduced.”
Without expressly citing them, this passage from Mowatt is definitely a throw-back to cases like Bater and Hanes, albeit doggedly holding onto the ratio of McDougall that there is but one inflexible standard of proof at common law for civil matters (absent, of course, any statute to the contrary). It might be said that this goes to the weight and persuasiveness of any piece of evidence rather than the standard of proof. However, this may be a different way of saying the same thing.
It’s All Semantics, Isn’t It?
The imprecision of words (usually the deceptively simple ones) may help keep philosophers and lawyers gainfully employed. Discussions of standard of proof are littered with synonyms, such as “cogent”, “degrees”, “probabilities”, “convincing”, and “reasonable”. These are likely all ways of saying the same thing.
Does this make the whole issue merely one of semantics? Lord Denning suggested as much in Bater: “[t]he difference of opinion which has been evoked about the standard of proof in these cases may well turn out to be more a matter of words than anything else.” In Standards of Proof (1955) 33 Can. Bar. Rev. 665, Professor Fridman argued that it is not possible to precisely and definitively express a standard of proof, no matter how technically language might be used. Rather, all that could be said is that a decision maker must be satisfied of the truth of a particular fact.
Turning back to those matters for which a statute alters the standard of proof, the line of authorities discussing the flexibility of the civil standard or an intermediate standard of proof is important. They can providence to practitioners in administrative proceedings where the standard of proof has been altered by statute. Perhaps the best strategy is to avoid the semantics of the standard of proof and focus one’s advocacy on a persuasive analysis of the available evidence.