Fraud – Standard of Proof
That there is but one standard of proof in civil cases and notwithstanding that one might think this was a recent concept when reading F.H. v. McDougall, it might be argued that some courts have but paid lip service to the rule. Despite the reaffirmation of this principle for years as well from courts of highest authority throughout the Commonwealth, it seems to have been necessary to explicitly write on this subject about every decade in the Supreme Court. This is likely so because of the attempts by various courts to rephrase the “cogency” requirement to words of their own choosing in difficult cases. These attempts have been unhelpful and at least and confusing at best. The recent pronouncement by the Supreme Court in F.H. v. McDougall will hopefully end the debate (if there is any) for the foreseeable future.
So, in the cases involving most heinous allegations, apart from s*xual assault or physical injury cases engaging more than negligence questions, the issue of burden is most often a vexed one. In turn, fraud cases and theft cases are the most common subset of such cases.
Even though in any civil action the burden is to prove the case on a balance of probability, more likely than not ‐ anything over 50% ‐ the nature of the evidence in cases involving fraud or moral turpitude invites a reflex reaction that there has to be (there is no shifting onus) evidence commensurate with the gravity of such offences and that a judge is required to give the allegations special scrutiny in every respect. The one word adjectival descripttion of the required evidence oft applied is “cogent”. This characterization is an overstatement and quaere whether the words in the following cases would have met with reversal if the case were permitted a full hearing in the Supreme Court of Canada.
In Dehart v. Lind8, where cheating was alleged in claiming brokerage commissions, McIsaac J. wrote:
Given the potential adverse effect on the reputation of Mr. Lind if liability were determined by this court, I find that the approach suggested by Lord Denning should guide me. The phrase “clear and convincing proof” captures the concept.
This phrase comes to the same threshold as “cogent”. Without more, these words do not seem to offend F.H. v. McDougall.
As Wright J. put it in Brad Jay v Greenglass9, where the complaint was that he set the bar too high for the plaintiff alleging theft by using words more apt to a criminal fraud prosecution:
[90] For a court, in a civil case, o find that an individual is a thief is a very serious matter. The consequences would be devastating and shatter a person’s character and reputation.
[91] Although I find that the evidence points to a suspicion that Greenglass may have taken money from the Flea Market revenues, I find that the plaintiff has failed to provide sufficient evidence to satisfy the degree of probability necessary to establish that Greenglass stole money.
