The burden of proof: How it's changed

The burden of proof in cases at the Ontario Landlord and Tenant Board has always been on a "balance of probabilities".  This means that the applicant, whether landlord or tenant, has the burden to establish that what is being alleged and claimed in an application is more likely than not to have occurred. 

A number of years ago I had the opportunity to represent a client before the Divisional Court in which the issue of what the burden of proof should be was the central issue in the case.  The allegations against my client, the tenant, amounted to allegations of criminal conduct.  It was our position that when allegations were criminal in nature that the burden of proof should be higher than a mere balance of probabilities.  The logic was that given the seriousness of the allegations a person should not be smeared with findings of criminality based on the application of a test of more likely than not.   Given the admissibility of hearsay, and far fewer procedural protections at an administrative tribunal, we argued that it would be unjust to allow a person to be successfully accused of criminality on a mere balance of probabilities. 

The argument was not that the criminal standard should apply---beyond a reasonable doubt--as that would be too much given that it was still a civil context.  Instead, it was argued that the burden of proof should be somewhere between balance of probabilities and beyond a reasonable doubt.  The argument was that the test needed to be a little bit more strenuous given the findings of fact that the adjudicator was being asked to make.  In the end, the argument was successful and the burden of proof, in matters relating to such unsavoury allegations was held to be higher than a mere balance of probabilities.  This case was decided in 2002 in Bogey Construction v. Boileau.

How the law is viewed today is different than it was in Boegy Construction.  The Supreme Court of Canada has done away with the sliding scale of the burden of proof and has held that there is only one civil standard of proof and that is a "balance of probabilities" applicable in all cases.  This was decided in F.H. v. McDougall in 2008. 

In reviewing F.H. v. McDougall it is interesting to see that some landlord representatives are interpreting the case as over-turning Bogey Construction.  I don't actually believe this is the case.  What the Supreme Court has done in F.H. McDougall is actually imposed the Bogey Construction v. Boileau test on not only cases involving illegal acts but on all cases before the Board.  How is this?

For people with experience before the landlord and tenant board you will have seen that what it takes to prove a case--i.e. on the balance of probabilities---can often be very little evidence.  Evidence by show of hands, representative evidence presumed to apply across several cases, inferences drawn without foundation, evidence being admitted without proof of authorship how it was created or where it comes from--i.e. photos, statements, recordings.  Weighing conflicting evidence and the process of choosing what evidence to accept--and what evidence to reject--is not often well explained.   In this context do the findings satisfy a test of "balance of probabilities". 

The Supreme Court in F.H. McDougall has made it clear that in the civil standard of balance of probabilities that "in all cases, evidence must be scrutinized with care by the trial judge".  The Court went on to say that this means that the evidence to satisfy this test must be "clear, cogent, and convincing".   It is this phrase--clear, cogent, convincing--that I suggest raises the burden of proof to what was being contemplated in Bogey Construction.

As the Supreme Court indicates that there is only one burden of proof in the civil context then it is to be expected that the test must be applied with the same rigour in all civil matters regardless of whether the procedural aspects of the proceedings are relaxed and the rules of evidence are softened.  How can pure hearsay--though admissible at the Board--ever rise to the level of being clear cogent and convincing to the point of meeting the single "balance of probabilities test" that exists in all civil matters?

Michael K. E. Thiele
Lawyer
Ottawa, Ontario
www.pqtlaw.com