For the past three decades, at least, there has been significant debate as to how compelling the evidence must be to make a finding of serious professional misconduct. While there has generally been consensus in Ontario, at least, that the criminal standard of proof (beyond a reasonable doubt) did not apply; that is about where the agreement ended.

The debate was started in the 1977 sexual abuse case of Bernstein v. College of Physicians and Surgeons of Ontario (1977), 15 O.R. (2d) 447 (Div.Ct.). In that case, the Discipline Committee found Dr. Bernstein guilty of sexual impropriety with a patient despite a number of inconsistencies and implausibilities in the patient’s evidence. The Court reversed the finding on the basis that the Discipline Committee must have applied the wrong standard of proof in believing the patient over the physician.

In a lengthy attempt to provide guidance to discipline committees, the Bernstein court gave many different word tests to describe how seriously the evidence must be weighed. This has often been summarized as being clear, cogent and convincing evidence that is not based on suspect or fragile testimony which persuades the tribunal of the truth of the allegations. Many tribunals have sat through long recitations of these passages by counsel at hearings.

Over the years, the Bernstein test has been extrapolated to support other legal concepts. For example, appellate courts have used the need to adopt the correct standard of proof as a basis to review the evidence at the hearing to determine whether the tribunal really applied the right test. Similarly, reviewing courts have also required detailed reasons for credibility findings in order for the tribunal to demonstrate that it was using the appropriate standard of proof. In short, Bernstein has been used to justify greater judicial scrutiny of discipline decisions.

Early this month, in another sexual abuse case, the Supreme Court of Canada unanimously turned back the clock by three decades. In F.H. v. McDougall, 2008 SCC 53, a former student of a residential school sued a school official for sexual abuse in the late 1960’s. Because the student did not tell anyone about the abuse for over thirty years, there was really no evidence of actual abuse other than his own testimony, which was flatly denied by the respondent. The student was inconsistent in his statements as to the frequency and nature of the abuse. There could hardly be a case where the standard of proof could be more important.

The court started out by identifying the various incorrect tests that had been developed in recent decades as to the standard of proof:

I summarize the various approaches in civil cases where criminal or morally blameworthy conduct is alleged as I understand them:

(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.

In rejecting them, the Court said:

Like the House of Lords, I think it is time to say, 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. Of course, context is all important and a judge should not be unmindful, where appropriate, of inherent probabilities or improbabilities or the seriousness of the allegations or consequences. However, these considerations do not change the standard of proof. I am of the respectful opinion that the alternatives I have listed above should be rejected….

The Court explained its reasoning as follows:

In my view, the only practical way in which to reach a factual conclusion in a civil case is to decide whether it is more likely than not that the event occurred.

To suggest that depending upon the seriousness, the evidence in the civil case must be scrutinized with greater care implies that in less serious cases the evidence need not be scrutinized with such care.   I think it is inappropriate to say that there are legally recognized different levels of scrutiny of the evidence depending upon the seriousness of the case.  There is only one legal rule and that is that in all cases, evidence must be scrutinized with care by the trial judge.

Similarly, evidence must always be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test.   But again, there is no objective standard to measure sufficiency.  In serious cases, like the present, judges may be faced with evidence of events that are alleged to have occurred many years before, where there is little other evidence than that of the plaintiff and defendant.  As difficult as the task may be, the judge must make a decision.  If a responsible judge finds for the plaintiff, it must be accepted that the evidence was sufficiently clear, convincing and cogent to that judge that the plaintiff satisfied the balance of probabilities test…..

In the result, I would reaffirm that in civil cases 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.

In cautioning reviewing courts against using the standard of proof as a basis to justify less deference to the tribunal, the Court said:

Whether the correct standard was expressly stated or not, the presumption of correct application will apply unless it can be demonstrated by the analysis conducted that the incorrect standard was applied.   However, in determining whether the correct standard has indeed been applied, an appellate court must take care not to substitute its own view of the facts for that of the trial judge.

On the issue of the impact of inconsistencies in evidence, the Court stated:

The trial judge was not obliged to find that F.H. was not credible or that his evidence at trial was unreliable because of inconsistency between his trial evidence and the evidence he gave on prior occasions.   Where a trial judge demonstrates that she is alive to the inconsistencies but still concludes that the witness was nonetheless credible, in the absence of palpable and overriding error, there is no basis for interference by the appellate court.

On the issue of the need for corroboration in serious cases, the Court said:

Corroborative evidence is always helpful and does strengthen the evidence of the party relying on it ….   However, it is not a legal requirement and indeed may not be available, especially where the alleged incidents took place decades earlier.  Incidents of sexual assault normally occur in private.

In recent years, a concept has begun to creep in from criminal cases to discipline cases that the burden of proof cannot be satisfied by simply choosing whom to believe. The Court appears to have rejected this approach as well:

However, in civil cases in which there is conflicting testimony, the judge is deciding whether a fact occurred on a balance of probabilities.   In such cases, provided the judge has not ignored evidence, finding the evidence of one party credible may well be conclusive of the result because that evidence is inconsistent with that of the other party.  In such cases, believing one party will mean explicitly or implicitly that the other party was not believed on the important issue in the case.  That may be especially true where a plaintiff makes allegations that are altogether denied by the defendant as in this case.

The Court also warned against using brief explanations of credibility findings as being a sufficient basis to set aside a finding:

An unsuccessful party may well be dissatisfied with the reasons of a trial judge, especially where he or she was not believed.   Where findings of credibility must be made, it must be recognized that it may be very difficult for the trial judge to put into words the process by which the decision is arrived at ….  But that does not make the reasons inadequate.  In R. v. R.E.M., 2008 SCC 51 (CanLII), 2008 SCC 51, released at the same time as this decision, McLachlin C.J. has explained that credibility findings may involve factors that are difficult to verbalize:

While it is useful for a judge to attempt to articulate the reasons for believing a witness and disbelieving another in general or on a particular point, the fact remains that the exercise may not be purely intellectual and may involve factors that are difficult to verbalize.   Furthermore, embellishing why a particular witness’s evidence is rejected may involve the judge in saying unflattering things about the witness; judges may wish to spare the accused who takes the stand to deny the crime, for example, the indignity of not only rejecting his evidence in convicting him, but adding negative comments about his demeanor.  In short, assessing credibility is a difficult and delicate matter, that does not always lend itself to precise and complete verbalization. [para. 49]

Nor are reasons inadequate because in hindsight, it may be possible to say that the reasons were not as clear and comprehensive as they might have been.

Given the reasoning process of the Court, it is likely that McDougall applies to discipline cases as well.

F.H. v. McDougall is available at: www.canlii.org.

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