Only One Civil Standard of Proof: FH v McDougall

Civil cases involving allegations of criminal or morally blameworthy conduct, such as sexual assault against minors, carry social stigma that go beyond other types of civil disputes. Until very recently, the approaches of U.K. and Canadian courts in addressing the burden of proof in such cases have varied; in general, they tended to apply the civil standard of proof with a higher degree of probability or require the evidence to be more clear, convincing and cogent and scrutinized with greater care. However, in June of this year, the U.K. House of Lords concluded unanimously that there is only one civil standard of proof, and the Supreme Court of Canada (“SCC”), in FH v McDougall, [2008] 3 SCR 41, did the same.

The plaintiff, F.H., was a resident student at the Sechelt Indian Residential School in British Columbia during the latter half of the 1960s. In 2000, he brought an action against the defendants alleging physical and sexual assault which had occurred at the school more than 30 years prior.

The trial judge noted that the case raised few issues of law and her decision essentially depended on findings of fact with regard to credibility and reliability of the witnesses. Like most cases involving allegations of sexual assault, it came down to the word of one party against the other. After summarizing the evidence of all the witnesses, the trial judge found that F.H. was a credible witness in spite of numerous difficulties with his testimony, and concluded that he had been physically and sexually assaulted by the defendant McDougall during the 1968-1969 school year.

The British Columbia Court of Appeal (“BCCA”) overturned the trial judge’s decision in relation to sexual assault. In separate concurring reasons, the majority found that the trial judge had failed to scrutinize the evidence to the higher standard of proof required in civil cases alleging criminal behaviour or provide adequate reasons for accepting F.H.’s evidence and rejecting that of the defendants. The dissenting judge, however, found that the trial judge had in fact applied the correct standard of proof and she had made no palpable and overriding error that would justify overruling her findings of fact.

In addressing the numerous submissions by the parties, many of the SCC’s comments are predictable, as they deal mainly with deference to trial judge’s assessment of evidence, particularly with regard to the credibility of witnesses, and the rule that appellate courts should not interfere with the trial judge’s factual findings barring any palpable and overriding errors.

What is significant in this judgment is the court’s word on the proper standard of proof to be applied in civil cases involving allegations of criminal or morally blameworthy conduct. Rothstein J., writing for the Court, summarizes the various approaches to the standard of proof that have been taken in such cases at para. 39:

(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.

Rothstein J. firmly declares, “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” (para 40); at the same time, he is careful not to criticize the BCCA too harshly for its error, which was “understandable in view of the state of the jurisprudence at the time of its decision” (para 53).

In rejecting the possibility of imposing a higher standard of proof, Rothstein J. points out that there is no presumption of innocence in civil cases. Although there may be serious consequences to a finding of liability, civil disputes do not involve the government depriving an individual of his or her liberty. Thus, the SCC makes a clear distinction between civil cases and criminal cases, and directly opposes Southin J.A.’s suggestion that R v W(D), [1991] 1 SCR 742 should apply in civil cases where the allegation is of a criminal nature. In criminal cases, it is vital that the trier of fact has a clear understanding that the burden of proof never shifts from the prosecution. It is not to be a contest of two conflicting accounts; the lack of credibility on the part of the accused does not equal proof of guilt beyond a reasonable doubt. However, in civil cases where the standard of proof is on a balance of probabilities, believing one party on a specific issue at conflict will necessarily indicate that the other party was not believed with respect to that point.

Rothstein J. provides other, practical reasons for rejecting the different standards of proof that have been applied in civil cases involving criminal conduct. While it is easily understandable how one may find that it was “more likely than not” that a certain event occurred, it would be difficult to ascertain the likelihood of an event based on a sixty or seventy percent probability. Furthermore, evidence should be sufficiently clear, convincing and cogent and scrutinized with care by the trial judge in all cases. It would be inappropriate to say that the quality of the evidence or the degree of care in examining it should vary depending on the trial judge’s perception of the seriousness of the case; to the parties involved, their case is always of the utmost importance, regardless of whether it involves historic sexual assault, defamation, or negligence resulting in bodily harm.

The decision of the Court in this case is not at all surprising or unexpected; it only makes sense for the same standard of proof to be applied to all civil cases. If a different standard were to be applied to a certain category of cases, it would likely cause confusion and increase litigation as it may not always be clear whether a certain conduct should attract the higher standard. However, the Court may be underestimating the “serious consequences” that may result from a finding of civil liability where the allegations are of the kind in this case. For many in McDougall’s community, they would understand that the court has found that McDougall raped a young boy numerous times and, notwithstanding the fact that more than 35 years have passed, he may be shunned and ridiculed. And for some, such rejection from one’s community may be comparable to the loss of one’s liberty.