Burden of Proof – Some Notes and Ramblings

Introduction

Most, if not all, rules or principles concerning the rules of engagement in dispute resolution are grounded in fairness and order. While we tend to compartmentalize, it becomes manifest on any fair review that fairness and order permeate the law of evidence.

Burden of Proof – Overview

The burden of proof (or the onus of proof) is properly referable the primary obligation on a party to prove its case (including factual contests related thereto) to the relevant degree of certainty. This primary burden is also properly termed the legal, persuasive or ultimate burden. In civil cases, the plaintiff or applicant bears the burden of proof¹. The civil standard of proof is the balance of probabilities².

The secondary burden (i.e. the evidential burden) in civil and criminal cases is an onus on a party to ensure that sufficient evidence of a factual issue is properly before the Court to pass the threshold test. This burden may switch (by operation of law) between the litigants during a trial. This burden does not impose on any party the obligation to call evidence³, but the failure to call evidence without explanation may have consequences.

The civil standard of proof does not apply to the evidentiary burden. Evidence in connection with this secondary burden is admissible as long as it is “properly before the trier of fact” – that is – its probative value outweighs its prejudicial effect and there being no other reason to exclude it.

Justice Fish in R. v. Fontaine4 succinctly summarizes the distinction between these two “burdens” as follows (at paragraphs 11 and 12):

An “evidential burden” is not a burden of proof. It determines whether an issue should be left to the trier of fact, while the “persuasive burden” determines how the issue should be decided.

These are fundamentally different questions. The first is a matter of law; the second, a question of fact. Accordingly, on a trialbefore judge and jury, the judge decides whether the evidential burden has been met. In answering that question, the judge does not evaluate the quality weight or reliability of the evidence. The judge simply decides whether there is evidence upon which a properly instructed jury could reasonably decide the issue. [emphasis added]

Failing to satisfy the burden of proof (legal or persuasive) is fatal to that party’s case whereas the failure to meet an evidentiary burden is not fatal. Understanding the law with regarding burdens of proof and the standards of proof are critical in assessing how a case is pleaded, discoveredand tried. Accordingly, when assessing a case and preparing its presentation, thought must be had throughout the pre‐ trial and trial processes to the primary and secondary burdens necessary to succeed in or defending a civil claim.

Burden of Proof in Civil Cases

The general rule is that “he who asserts must prove”, i.e., the burden rests with the plaintiff or the applicant⁵. This determination will usually involve a question of mixed fact and law.

By way of illustration, a plaintiff asserting negligence will ordinarily be required to demonstrate the existence of a duty of care, the breach of that duty and the incurring of damage proximately caused by the breach. The “ultimate burden” (proving negligence), will be met if the trier of fact is satisfied – when considering the body of admissible evidence – that negligence has been proven on the civil standard of proof.

A plaintiff in a negligence case does not have to prove each evidentiary element of the tort on a balance of probabilities. For example, in a professional negligence context the act or acts of negligence – specifically the facts supporting a breach of the duty of care – are thesubject of the evidentiary as opposed to the ultimate burden of proof. That being said, the totality of the evidence must satisfy the ultimate burden of proof on the balance of probabilities. In other words, the various factual assertions making up the claim for a breach of a duty of care must in the aggregate establish negligence on the civil standard of proof.

In some cases, if the evidence in connection with an allegation lies particularly within the knowledge of one party, that party may be required to prove it (with the failure to so do leading perhaps to an adverse inference). Another exception to the burden of proof would be in where the defendant asserts a defence such as novus actus interveniens⁶ to a negligence action. In this situation, it may well be that once theplaintiff has established a prima facie case, the defendant would have the legal burden of proving that his conduct was not the proximate cause for the plaintiff’s loss due to the intervening act of a third party or the like⁷.

Standard of Proof – Legal Burden

The standard of proof is on the balance of probabilities, i.e., that an allegation is more probable than not. The onus or burden of proof is a relatively simple concept but presents many difficulties in its application. Ultimately one is well served if it is remembered that the more serious the allegation (and its consequences, if proven), the more scrutiny the trier of fact will give to the evidence in assessing whether or not the burden has been met on the balance of probabilities.

The confusion with respect to standards of proof in civil cases is similar to that with respect to the rejected maxim of res ipsa loquitur. In cases such as fraud, the ultimate burden is not subject to some “middle” standard between the balance of probability and beyond reasonable doubt. Language such as “clear and convincing” or “clear and cogent” evidence being required to meet the standard (suggesting oddly that other cases required murky and questionable evidence) does not amount to a “middle” or third standard of proof. In fact, the law has been (to my reading) relatively clear (albeit with some exceptional erroneous interpretations) that there is but one standard of proof in civil cases: the balance of probabilities.

Quite recently, the Supreme Court of Canada in F.H. v. McDougall again found it necessary to confirm that there is but one civil standard of proof in civil cases. The case involved allegations by the plaintiff (H) that he had been sexually assaulted while he was a resident of a Residential School in British Columbia.

A unanimous court reversed a decision of a majority of the Court of Appeal reversing the trial judge’s decision with respect to the sexual assaults. The Court of Appeal was reversed for holding that the trial judge erred in failing to consider the serious inconsistencies in H’s testimony in determining whether the alleged sexual assaults had been proven to the standard of proof that was ‘commensurate with the allegation’ and failed to scrutinize the evidence in on a standard other than the balance of probabilities.

Justice Rothstein wrote as follows:

…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…

Justice Rothstein further wrote:

Put another way, it would seem incongruous for a judge to conclude that it was more likely than not that an event occurred, but not sufficiently likely to some unspecified standard and therefore that it did not occur. As Lord Hoffman explained in In re B at para. 2:

If a legal rule requires a fact to be proved (a ‘fact in issue’), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are zero and one. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of zero is returned and the fact is treated as not having happened. If he does discharge it, a value of one is returned and the fact is treated as having happened.

Since the balance of probabilities is simply more than fifty per cent it is logical to simply consider whether an event is more likely (even if that likelihood is extremely modest) than not to have happened, then the standard will have been met. Justice Rothstein further stated:

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.

At to “clear and cogent” the SCC was held that evidence “must always be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test”. Whether the evidence is sufficient in this regard will be subjectively (but nevertheless, in a principled and reasoned manner) determined.

Specific Example: 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 sexual 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 description 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, to 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.

Provided the court is mindful (and pays more than mere lip service) to the standard of proof, an appeal on the apparent failure to apply a higher standard will not lead to a reversal. In Brad Jay, the Court of Appeal held that the trial judge’s use of the words “…degree of probability…” were tempered by the reference to the applicable concept elsewhere in the reasons and could not be relied upon standing alone to reverse the dismissal of the action for theft. Leave to appeal was refused.

Evidential Burden – Standard of Proof

The evidential burden (not the burden or onus of proof which is the purview of the trier of fact – be it judge or jury) is determined by the trial judge alone¹⁰. In a jury trial the trial judge determines what evidence may be considered by the jury in arriving at a verdict. The evidential burden determines whether an issue should be left to the trier of fact whereas the “burden of proof” determines the ultimate outcome.

For evidence to pass the “evidential burden” threshold (to be “put to the trier of fact” be it judge or jury) a determination of its weight, reliability or quality is not engaged. What is engaged is whether it is relevant and if so whether its probative value outweighs it prejudicial effect (provided there is no exclusionary rule in play). In other words, the judge simply decides whether there is evidence upon which a properly instructed jury could reasonably decide the issue.

Where a statute requires that a party is liable unless it proves any evidence to the contrary, such a party bears an evidentiary and not a persuasive burden. That is a party must lead evidence sufficient to put its allegations “in play”. The evidence cannot be clearly incapable of establishing those allegations. It might be said that such evidence is subject to the air of reality test.

The criminal context provides a clear illustration of the evidential burden in the context of affirmative defences. Where the accused asserts an affirmative defence, the evidential burden will be discharged where there is some evidence that puts the defence “in play” – that is – whenever a properly instructed jury could reasonably, on account of that evidence, conclude in favour of the accused¹¹. In the case of “reverse onus” defences, the accused who bears both the persuasive (discharged by evidence on the balance of probabilities¹²) and the evidential burdens¹³ must do so with all available evidence that demonstrates an air of reality.

In order to engage the determination of a factual issue, a party must satisfy the evidentiary burden by way of permissible evidence. This burden will apply to all litigants, whereas the ultimate burden will apply only to the plaintiff. The difference between the evidentiary and primary burden were considered by Chief Justice Dickson (dissenting) in the criminal law context in R. v. Schwartz¹⁴ where he stated at paragraph 38:

Judges and academics have used a variety of terms to try to capture the distinction between the two types of burdens. The burden of establishing a case has been referred to as the “major burden,” the “primary burden,” the “legal burden” and the”persuasive burden.” The burden of putting an issue in play has been called the”minor burden,” the “secondary burden,” the “evidential burden,” the “burden of going forward,” and the “burden of adducing evidence.”

While any combination of phrases has its advantages and drawbacks,

I prefer to use the terms “persuasive burden” to refer to the requirement of proving a case or disproving defences, and”evidential burden” to mean the requirement of putting an issue into play by reference to evidence before the court.

The party who has the persuasive burden is required to persuade the trier of fact, to convince the trier of fact that a certain set of facts existed. Failure to persuade means that the party loses. The party with an evidential burden is not required to convince the trier of fact of anything, only to point out evidence which suggests that certain facts existed. The phrase “onus of proof” should be restricted to the persuasive burden, since an issue can be put into play without being proven. The phrases “burden of going forward” and “burden of adducing evidence” should not be used, as they imply that the party is required to produce his or her own evidence on an issue… [Emphasis added].

Chief Justice Dickson’s comments (as may be said about other important decisions regarding the law of evidence from courts of all levels) were made in a criminal case, but there is no doubt they apply to civil cases.

In practice, the evidential burden requires a party to lead admissible evidence (sufficient) in connection with an allegation to enable the court to allow the issue to be properly considered in arriving in its determination of the legal burden of proof on the civil standard. Exceptions to the requirement to lead evidence would include agreed facts, notorious facts or the like. The determination of whether or not the evidential burden has been met in any given situation is a question of law. When enough evidence has been raised by a plaintiff, the defendant (in order to rebut the evidence and any consequential determinations therefrom) would then have to disprove that evidence by leading admissible evidence to the contrary (alternatively, for example, the defendant might admit the evidence but argue that liability does not follow from the evidence).

Specific Example – Motion to Remove Counsel Wrongfully Obtaining Privileged Information

Where X seeks to remove Y as counsel, X bears the ultimate burden of proving that Y engaged in conduct that should result in its removal as counsel ( i.e., X is prejudiced). If X alleges that Y is in possession of privileged information so as to give rise to Y’s removal then X will have to prove that Y is in fact of information that is privileged, privilege has not been waived and that the circumstances justify a removal. The first question – as it relates to possession of information (fact, type and extent) is a question of fact and must be proved on a balance of probabilities. The second question will be factual with respect to an “express” waiver (by word, letter or deed) and of mixed fact and law with respect to an “implied” waiver (likely by action). In proving both of these issues however, each element (package of documents taken, included privileged documents, no express or implied waiver, etc.) may be proven on the evidentiary standard. Whether the privileged documents were viewed will be an evidentiary burden on the receiving/reviewing party. Importantly, there is a rebuttable presumption that if privileged information was wrongfully received – however so – there has been prejudice. This evidentiary burden could be discharged by leading evidence of no prejudice. Simply put, the party best equipped to discharge a burden is generally required to do so. This is principled and fair as putting the burden on the party in receipt of the confidential information. By way of general application this principle would extend to all (if not then most) situations where X has “created” the situation requiring resolution.

In Celanese Canada Inc. v. Murray Demolition Corp¹⁵ the Supreme Court of Canada dealt with a case of inadvertent disclosure of privileged information. At paragraph 48 the following is statement is found:

I accept, as mentioned earlier, that a distinction may be drawn between the moving solicitor situations and the inadvertent disclosure situation on the basis that in the latter cases, but not the former, the content and extent of the confidential information at issue is (or ought to be) identifiable. I do not agree that this distinction switches the onus to the defendant to prove the risk of significant prejudice, rather than leave the onus with Celanese to rebut a presumption of prejudice.

The SCC held that the examining/receiving party, Celanese – as it was in the best position to do so – had the onus to demonstrate the information was not privileged. At paragraph 49 the SCC stated:

The SCC noted policy (cautionary) considerations in support of placing the onus on Celanese, as “putting the onus on the party in receipt of the confidential information rather than on the party being searched, increases the incentive on its part to take care to ensure that privileged information is not reviewed in the first place” (paragraph 50). The SCC went further and found it “procedurally unfair not only to subject the defendant to the intrusion of a surprise search under an exceptional order in the course of which its solicitor‐client confidences are disclosed to its opponent, but then to throw on it the onus of clearing up the problem created by the plaintiff’s carelessness.” (paragraph 51). Simply put, the SCC found that since Celanese (properly its counsel) were the “cause” of the problem, they should “bear the burden of resolving it” (paragraph 52).

It is worth noting that when executing an Anton Piller order, counsel “should be able to show with some precision what they have seized, what they have seen, who has seen it and the steps taken to contain the wrongful disclosure of confidences” (paragraph 53 of Celanese). In summary, the SCC held (at paragraph 55):

Lawyers who undertake a search under the authority of an Anton Piller order and thereby take possession of relevant confidential information attributable to a solicitorclient relationship, bear the onus of showing there is no real risk such confidences will be used to the prejudice of the defendant. Difficulties of proof compounded by errors in the conduct of the search and its aftermath should fall on the heads of those responsible for the search, not of the party being searched. The onus was not met by the respondents in this case.

Placing the onus on Celanese accords with the usual practice that the party best equipped to discharge a burden is generally required to do so. Thereceiving/examining lawyers know what they looked at. As such there is onus on the other party to demonstrate what confidential information might have bee received/viewed by the receiving/examining lawyer.

Proving Causation

The decision of the Supreme Court in Snell v. Farrell¹⁶, a medical malpractice case, provides guidance with respect to proving causation that is of general application in negligence actions. In Snell the SCC advocated a more fluid approach to proving causation. Writing for the court, Sopinka J. held that establishing causation in the legal sense is really a question of fact to be determined by a common sense consideration of the evidence as a whole. As such in Snell, applying this more flexible approach, it was open for the trial judge in this case to infer causation when there were facts proved that would fairly lead to a finding of (legal) causation in the absence of “scientific proof”. In Snell Justice Sopinka, stated at p. 300:

I am of the opinion that the dissatisfaction with the traditional approach to causation stems to a large extent from its too rigid application by the courts in many cases. Causation need not be determined by scientific precision. It is, as stated by Lord Salmon in Alphacell Ltd. v. Woodward, [1972] 2 All E.R. 475 (U.K. H.L.), at p. 490 ‘…essentially a practical question of fact which can best be answered by ordinary common sense rather than abstract metaphysical theory.’ Furthermore, as I observed earlier, the allocation of the burden of proof is not immutable. Both the burden and the standard of proof are flexible concepts. (Citing Blatch v. Archer (1774), 1 Cowp. 63 (Eng. K.B.) at p. 65, (1774), 98 E.R. 969 (Eng. K.B.) at p. 970.)

Mr. Justice Sopinka continued at p. 301:

These references speak of the shifting of the secondary or evidential burden of proof or the burden of adducing evidence. I find it preferable to explain the process without using the term secondary or evidential burden. It is not strictly accurate to speak of the burden shifting to the defendant when what is meant is that evidence adduced by the plaintiff may result in an inference being drawn adverse to the defendant. Whether an inference is or is not drawn is a matter of weighing evidence. The defendant runs the risk of an adverse inference in the absence of evidence to the contrary. This is sometimes referred to as imposing on the defendant a provisional or tactical burden: see Cross, op. cit., at p. 129. In my opinion this is not a true burden of proof, and use of an additional label to describe what is an ordinary step in the fact finding process is unwarranted.

The legal or ultimate burden remains with the plaintiff, but in the absence of evidence to the contrary adduced by the defendant, an inference of causation may be drawn, although positive or scientific proof of causation has not been adduced. If some evidence to the contrary is adduced by the defendant, the trial judge is entitled to take account of Lord Mansfield’s famous precept. This is, I believe, what Lord Bridge had in mind in Wilsher when he referred to a ‘robust and pragmatic approach to the … facts’ (p.569).

In Ouellette v. Hearst¹⁷ our Court of Appeal held that negligence “can be inferred in appropriate cases”. An appropriate case would include where the court is satisfied that the accident would not have happened in the absence of negligence.

Shifting Burdens – Myth but Useful Nomenclature

Res Ipsa Loquitur – A Confusing Deceased Principal

There is no such thing as a shifting burden since the only burden – primary, legal or persuasive – rests with the plaintiff. Like the concept of “shifting burdens” the rejected maxim of res ips loquitur confuses rather than assists when considering “who bears the burden of proof”. The court must simply weigh circumstantial evidence with direct evidence to determine if there is prima facie case. Once this case has been made out, then the burden shifts to the resisting party. In Fontaine v. British Columbia (Official Administrator), [1998] 1 S.C.R. 424, Mr. Justice Major stated at p. 6:

Whatever value res ipsa loquitur may have once provided is gone. Various attempts to apply the so‐called doctrine have been more confusing than helpful. Its use has been restricted to cases where the facts permitted an inference of negligence and there was no other reasonable explanation for the accident. Given its limited use it is somewhat meaningless to refer to that use as a doctrine of law.

It would appear that the law would be better served if the maxim were treated as expired and no longer used as a separate component in negligence actions. Afterall, it was nothing more than an attempt to deal with circumstantial evidence. That evidence is more sensibly dealt with by the trier of fact, who should weigh the circumstantial evidence with the direct evidence, if any, to determining whether the plaintiff has established, on a balance of probabilities, a prima facie case against the defendant. Once the plaintiff has done so, the defendant must present evidence negating that of the plaintiff or necessarily the plaintiff will succeed.

A classic situation where circumstantial evidence may be the primary source of evidence is an arson allegation by an insurer against its insured. In an arson case, the cause of the fire is the central issue. It is often difficult to demonstrate the causes as the fire often destroys evidence of causation. As in all cases, the court must consider (properly admissible) available evidence to arrive at its decision. Conjecture or speculation is not engaged on account of a dearth of evidence. Put another way, if resort to conjecture or speculation is engaged, then the seeking party has fallen well short of satisfying its persuasive burden. The court ultimately, on a proper evidentiary record, must decide what was probable (as opposed to possible) but in so doing does not need to arrive at a level of comfort tantamount to scientific certainty¹⁸.

To support its denial of coverage, a defendant insurer must prove arson on a balance of probabilities. This burden never shifts to the insured. The evidence to prove arson must be clear and cogent but subject to the civil standard. Of course under the balance of probabilities speculation and suspicion are not enough. The insurer must prove¹⁹:

That the fire was deliberately set;
That the arsonist had the opportunity (although not the exclusive opportunity) to do so; and,
That there was direct or indirect motive on the part of the insured, to cause the fire.

Because arson is a serious crime, the degree of proof that the fire was deliberately set must be commensurate with the allegation (but quaere in light of the recent observations of the Supreme Court of Canada – the degree is theoretically the same as in any other civil case). Circumstantial evidence may be led to prove any of the elements if it is of sufficient clarity and cogency to satisfy the burden by inference. Of course, a fire of unknown origin cannot be said to have been caused by arson. Finally, the insured is not required to explain the cause of the fire.

Adverse Interference

An adverse may be drawn in certain cases where a party uniquely in control of a material witness fails to call her at trial. The determination of materiality will be informed by whether the subject evidence has been adduced in another equally reliable manner²⁰. Again, to draw or not to draw is a matter of discretion but it is arguable that if that party with the burden on the issue is so uniquely in control and the required evidence is not adduced in another equally reliable manner, as a matter of law the adverse inference should be drawn.

This principle is easily stated yet consistently it leads to much judicial comment. Accordingly, it is useful to review the practical application of the principle in some of the recent case law.

As was held²¹ in Blatch v. Archer²² :

It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted.

Where a witness is equally available to both parties, an adverse inference cannot be drawn from the party’s decision not to call a particular witness. An adverse inference may be drawn against a party for failure to call a witness who may give material evidence when that party alone could bring the witness before the court.

An adverse inference cannot add weight to evidence of a belief or understanding that is belied by the record on which it was said to be based. The Supreme Court of Canada has dealt with this issue in Levesque v. Comeau²³, a personal injury claim where, despite more immediate post‐accident treatment from several other doctors, the plaintiff called only one medical expert. This case stands for the proposition that whether or not to draw an adverse inference is (usually) discretionary. Cory J.A. (as he then was), observed in Vieczorek v. Piersma ²⁴ stated:

It is perfectly appropriate for a jury to infer, although they are not obliged to do so, that the failure to call material evidence which was particularly and uniquely available to the Vieczoreks was an indication that such evidence would not have been favourable to them. [emphasis added]

The question of whether such an inference is drawn and the extent of the inference are both in the discretion of the trial judge. This discretion must be exercised reasonably and in light of the circumstances of the case, including whether the witness likely had material evidence to provide, whether this witness is the best or only source of the information and whether the witness is in the “exclusive control” of other party. There may be cases where the failure to draw the adverse inference amounts to an error in law. A successful appeal in this would be rare.

Rules of Practice – Motions for Judgment and Adverse Interferences

Different rules apply with respect to affidavit evidence used on a motion and in connection with an application. Hearsay is generally permitted with respect to motions, whereas hearsay is only permitted on uncontentious matters in affidavits used to support an Application²⁵.

The Rules of Civil Procedure have codified the law with respect to hearsay permitted in certain affidavits but offer no guidance as to the appropriate circumstances in which a Court ought to draw an adverse inference. The two rules are:

20.02 An affidavit for use on a motion for summary judgment may be made on information and belief as provided in subrule 39.01 (4), but on the hearing of the motion an adverse inference may be drawn, if appropriate, from the failure of a party to provide the evidence of persons having personal knowledge of contested facts. R.R.O. 1990, Reg. 194, r. 20.02; O. Reg. 533/95, s. 2.

76.07 (5) An affidavit for use on the motion may be made on information and belief as permitted by subrule 39.01 (4), but on the hearing of the motion an adverse inference may be drawn, if appropriate, from a party’s failure to provide the evidence of persons having personal knowledge of contested facts. O. Reg. 284/01, s. 25.

As to the drawing of an adverse inference, it is suggested that to even consider the adverse inference; i.e., that the witness not called or called and not questioned should/may lead the trier of fact to the conclusion that the witness/answer would not have been helpful, at least, or harmful at best, to the party not calling or questioning, the witness, or at least the evidence, must be uniquely available the party against whom the inference is to be drawn.

Specifically, as to the “not put” questions and issues, it is very important, when considering the potential application of the adverse inference, to note carefully and constantly upon who is the onus in respect of each issue.

Thus, if a potential witness is in Court or otherwise equally available to both sides, the principle of adverse inference is not engaged.

As well, in light of Rules 39 and 53 and the ability to demand the presence of an adverse party (or agent) as a witness with the right of cross‐examination, especially where the plaintiff is told there is no present intent to call that party/agent, the principle should not engage.

A useful reference in this regard, where adverse inference and burden interacted is Lambert v. Quinn²⁶ where the catch note and other pertinent paragraphs read:

Civil actions ‐‐ Evidence ‐‐ Trial judge erring in drawing adverse inference from failure of one party to call witness when that witness was present in court and equally available to either party ‐‐ Trial judge also erring in failing to make clear findings of credibility and fact where there were serious conflicts in evidence.

11 The appellant, Guardian, contends that the trial judge erred in drawing an adverse inference against it, because it did not call Lambert’s companion Doucette as a witness. Doucette had been subpoenaed by Guardian and it advised the trial judge it did not propose to call Doucette but that he was in the courtroom and available should respondents wish to call him. No one called Doucette as a witness, and the defence successfully contended that as he was an important witness on the issue of intent it was proper for the court to draw an adverse inference against Guardian. To be fair there was no suggestion in the reasons or in the argument in this court that any adverse inference should or could be drawn from any failure on the part of Guardian to fulfill an undertaking to the court.

12 The trial judge considered the evidence that Doucette might have given. He said:

The evidence indicated that Doucette was with Lambert at Tony’s Pizza at the time the altercation took place with Quinn, He assisted in breaking up the scuffle between Lambert and Quinn on two occasions. He could have cast some light on the reason for the altercation, and the condition of the combatants. He may have been able to testify as to the method that Quinn drove his automobile immediately before the impact. Mutimer testified that both pedestrians turned and looked towards their automobile as it proceeded down Simcoe Street before the impact. He may have been able to testify as to why the automobile missed him and collided with Lambert, when they were presumably both walking together on the sidewalk. He may have been able to comment on the existence of a northbound vehicle which may have affected the operation of the Quinn vehicle.

I consider Doucette was an important potential witness. The burden upon the third party is to establish the preponderance of evidence, that Quinn drove his automobile directly into Lambert with the intention of causing him serious injury.

Counsel for the third party, for tactical reasons, may have decided to simply subpoena Doucette, make him available for the defendants to call him as a witness so that he would be in a position to cross‐examine him. Had he discharged the burden of proof, this would have been an acceptable course of action. I find however, that the third party had not discharged the higher standard of proof within the probability range, and I draw the adverse inference that had Doucette been called, that he would probably not have assisted the third party in meeting this onus.

The statements attributed to Quinn, including the threats, respecting Lambert, including his statement to the police when interrogated, fall short in my view of meeting the higher standard of proof within the probability range that I require.

13 In reaching his conclusions the trial judge said:

It is a well recognized legal principle that a trier of fact may draw an inference from the failure of a party to call an available witness, that is an indication that such evidence would have not been favourable.

14 He referred to Blatch v. Archer (1774), 1 Cowp. 63, at p. 65; Vieczorek v. Piersma (1987) 58 O.R. (2d) 583, per Cory J.A., at p. 587; and Lévesque v. Comeau, [1970] S.C.R. 1010, per Pigeon J., at p. 1012.

15 With respect, those cases do not support the broad proposition stated by the trial judge, nor his use of an adverse inference in this case. In each of the cases referred to, the court said only that such an inference may be drawn against a party for failure to call a witness who may give material evidence when that party alone could bring the witness before the court. That is not this case. Further, for the purpose of this issue, the interests of Guardian were not associated with those of any other party to the litigation so as to raise a concern that might sustain a basis for suggesting that the witness was not, in the true sense, equally available to both parties. It was not suggested that this might be so. The witness was in court. He was equally available to both parties. There was, in the circumstances, no reason to draw the inference and the trial judge erred in doing so.

16 But that is not the end of the matter. In the passages quoted, the trial judge has stated that Guardian failed to discharge the higher standard of proof within the probability range and he subsequently referred to statements attributed to Quinn. The degree of proof was not in issue here. However, where there were serious conflicts in the evidence on important issues of fact, for example, whether Quinn did say the things attributed to him, what did he remember, was the road dry and was there a northbound car which caused Quinn to swerve and so was a (or the) cause of the incident, we think the trial judge was bound to make clear findings of credibility and fact. In our respectful opinion, he has not done so, and in the circumstances these things should not be left to inference and its effect.

So, the maxim, as this concept of ‘adverse inference’ is sometimes loosely called, e.g., Blatch v. Archer²⁷, that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted, is but a subset of the overarching principle capsulized in these words of Blatch. This paradigm for assigning burden has beenconsistently stated in Canada and reaffirmed on high every decade or so for the last 100 years at least²⁸. In Bay New Holdings Ltd. v. McQuillan Life Insurance Agencies Ltd.²⁹:

The trial judge bolstered his finding of an agreement by drawing an adverse inference against the tenant, who called no evidence on the issue. However, in our view, an adverse inference was not available on this record. The landlord’s claim of an agreement was undermined by the documentary record, which showed that there was no agreement. An adverse inference cannot add weight to evidence of a belief or understanding that is belied by the record on which it was said to be based. Excerpts from MacMaster (Litigation Guardian of) v. York (Regional Municipality); 1997 CarswellOnt 3626; 42 M.P.L.R. (2d) 90, [1997] O.J. No. 3928; Ontario Court of Justice.

The Supreme Court of Canada has dealt with this issue in the often referred to decision of Levesque v. Comeau (1970), 16 D.L.R. (3d) 425 (S.C.C.) (“Levesque This case dealt with a personal injury claim where, despite more immediate post‐accident treatment from several other doctors, the plaintiff called only one medical expert. Pigeon J. at p.432 discussed the inadequacy of the plaintiff’s evidence in saying that the principle”…is sometimes interpreted as mandating that a court must presume that when available evidence is not called, it will create an adverse inference. I do not agree that Levesque creates such a mandatory presumption. I note in this context that Cory J.A. (as he then was), observed in Vieczorek v. Piersma (1987), 16 C.P.C. (2d) 62 (Ont. C.A.) at 67 that:

Desmarais J. observed in Gerber Scientific Instrument Co. v. Bell‐Northern Research Ltd. (1991), 5 B.L.R. (2d) 20 (Ont. Gen. Div.) at 30:

In determining the materiality of the witness, regard can be had to what is the best evidence available and whether the evidence has been adduced in another equally reliable way. [emphasis added]

This point is established in an Alberta case which cites Levesque In Badger v. Dowsett (1994), 21 Alta. L.R. (3d) 323 (Alta. Q.B.), a personal injury case where the plaintiff did not call one of her doctors, Ritter J. at p.331 commented as follows:

…if the evidence is available through another doctor, then the adverse inference may be reduced substantially in terms of its weight and in fact if the Court is impressed with the evidence of the other doctor to the point of full satisfaction with that evidence, then the weight to be given to the adverse inference might well be reduced to nil

Adverse Interference in the Criminal Context

This area is beyond our undertaking but it is worth noting Shawn Hall v. Her Majesty the Queen³⁰ involving a criminal conviction, based in part on adverse inference, which in turn rested on conclusions informed, at least in part, by the accused’s failure to testify at trial. This inference is permitted in criminal law cases but the failure is not to be adverted to when there is a jury involved. Leave to appeal was dismissed in September 2008.

Hall struck and killed a pedestrian with his car after some pool shooting, food and beer with three others. Tried by a judge without a jury, he was convicted of impaired driving causing death, driving with blood alcohol over 80, and dangerous driving causing death. The OCA upheld the major charges and in so doing held that the trial judge did not wrongly draw an adverse inference from the Applicant’s silence at trial.

In Wigmore on Evidence, 3rd ed., Vol. II, pp. 162, the author states:

The failure to bring before the tribunal some circumstance, document, or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavourable to the party. These inferences, to be sure, cannot fairly be made except upon certain conditions; and they are also open always to explanation by circumstances which make some other hypothesis a more natural one than the party’s fear of exposure. But the propriety of such an inference in general is not doubted.

Our Court of Appeal said the following in Stellarbridge v Magna³¹ where again the burden of proof was discussed generally and in
the context of considerations of adverse inference.

[62] As well, in Haskell, supra, Talbot J. indicated with respect to a tenant’s obligation to keep leased premises in a state of good repair that: “If any want of repair is alleged and proved in fact, it lies on the tenant to show that it comes within the [reasonable wear andtear] exception” (at p. 59). See also Regis Property Co., supra, at p. 377 and, by analogy, Dunlop Construction Products Inc. (Receiver of) v. Flavelle Holdings Inc. (1996), 31 O.R. (3d) 58 at 64, footnote 1, (C.A.). [63] This statement is also consistent with more general principles relating to the burden of proof. In Snell v. Farrell, [1990] 2 S.C.R. 311, Sopinka J. referred with approval at para. 29 to the following statement of Lord Mansfield in Blatch v. Archer (1774), 1 Cowp. 63, 98 E.R. 969 at 970: It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted.

[64] In this case, the general burden of proof rested on Stellarbridge to prove the losses for which it claimed compensatory damages. Magna and Tesma, however, claimed that they were entitled to a reduction in the damages proven by Stellarbridge on account of the reasonable wear and tear exceptions in the Lease. It was therefore incumbent on them to show not only that the deficiencies in the leased premises at the end of the Lease term came within those exceptions, but also the extent of the reduction in damages (the rate of the discount) that they claimed in reliance on those exceptions. [65] This was not a case where Magna and Tesma were unable to call relevant evidence concerning the appropriate value of the asserted discount. The trial judge noted representatives of Magna and Tesma, who were not called as witnesses at trial, “had first hand knowledge on issues relevant to the condition of the interior and exterior of the building”. No evidence was offered to suggest that these witnesses were unavailable to testify. Accordingly, the trial judge drew an inference that the evidence of these witnesses would not have assisted Magna and Tesma had it been led at trial. It was open to the trial judge to draw such an adverse inference. That inference is entitled to deference from this court.

[66] As observed by the Supreme Court in Snell v. Farrell, the law is particularly alert to the opportunities of knowledge with respect to a fact to be proved: see paragraphs 16, 30 and 31. Magna and Tesma, as the lessees in possession of the leased premises throughout the term of the Lease, were uniquely positioned to lead direct evidence relevant to the assessment of the discount claimed on account of reasonable wear and tear. In contrast, there is no suggestion that Stellarbridge, as a lessor not in possession, was similarly positioned to proffer relevant evidence concerning the nature of the wear and tear and structural changes occasioned to the leased premises, the timing and cause of their occurrence and the extent of any efforts made by the lessee to remedy deterioration in the leased premises. Those facts were within the knowledge of Magna and Tesma, and they failed to produce such evidence at trial.

[67] Counsel for Magna and Tesma conceded before this court that there was no specific evidence establishing that 35% was the appropriate rate for the requested ‘betterment’ discount. Moreover, the trial judge’s supplementary reasons for judgment dated September 23, 2002 indicate at para. 13 that, although counsel referred to the principle of ‘betterment’: “[T]he actual figure for the percentage discount was not explicitly canvassed in closing submissions at trial.”

[68] In these circumstances, I am of the view that Magna and Tesma failed to discharge their evidential burden to establish the appropriate rate of discount applicable under the reasonable wear and tear exceptions in the Lease. They must bear the consequences of that failure, which ultimately derives, in any event, from their knowing and admitted failure to honour their restoration and repair obligations under the Lease. In the absence of any evidence to support the 35% Betterment Discount, or any rate of discount reflective of the wear and tear actually occasioned to the leased premises, no ‘betterment’ discount can be applied to the Restoration, Repair and Management Fee Awards.

Browne v Dunne(1893) 6 R. 67 (H.L.)

This ‘rule’ is an example of judge imposed fairness and order. Again, the case does not lay down a rule, per se, and one might, in light of the modern Rules, read in a party’s examination as part of one’s case (with a view to impeachment) not having put certain of the answers to the party while in cross, but the concept of fairness might very well dilute such an effort. There remains a residual discretion to permit evidence to be led even if not put to a witness while in cross coupled with the right of reply limited to such evidence. A short discussion of Browne may inform the general topic of burden in the context of questions “not put” and generally.

In R. v. Henderson (1999), 44 O.R. (3rd) 628 at p. 636, Labrosse J.A summarized the extensive speeches of the House of Lords:

This well‐known rule stands for the proposition that if counsel is going to challenge the credibility of a witness by calling contradictory evidence, the witness must be given the chance to address the contradictory evidence in cross‐examination while he or she is in the witness box.

Another useful reference is R. v. Marshall (2005), 77 O.R. (3rd) 81 (C.A.).

If a party knows or ought to know that it has evidence which will contradict or impeach a witness’s evidence, then the evidence should/must be put to the witness to provide the witness an opportunity to explain the evidence or at least qualify or deny. Most of the disputes arise because of inadvertence or where arguably it was not clear at the time of questioning that the cross‐examiner intended to so impeach. As indicated, there is a discretion to admit the offending evidence subject to reply even though this comes close to case splitting and unfair delay. Each case will dictate its own principled ruling. See e.g., Machado v. Berlet (1986), 32 D.L.R. (4th) 364 (Ont. H.C.)

Lord Herschell’s speech in Browne included:

“Now, my Lords, I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross‐examination showing that that imputation is intended to be made, and not take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that My Lords, I have always understood that if you intend to impeach a witness you are bound, while he is in the box, to give him an opportunity of making any explanation which is open to him and as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses. Sometimes reflections have been made upon excessive cross‐examination of witnesses, and it has been complained of as undue; but it seems to me that a cross‐examination of a witness which errs in the direction of excess may be far more fair to him than to leave him without cross‐examination, and afterwards to suggest that he is not a witness of truth, I mean upon a point on which it is not otherwise perfectly clear that he has had full notice beforehand that there is an intention to impeach the credibility of the story which he is telling.

Browne principles permeate civil, criminal and administrative practice and procedure. In Machado supra, Mr. Justice Ewaschuk echoes this in the modern era at 637:

The rule in Browne v. Dunn imposes on an opposing party the duty of giving a witness an opportunity of explaining evidence which the crossexaminer intends to use later to impeach the witness’ testimony or credibility. In other words, a cross‐examiner must expressly put to
the witness the substance of evidence which is to be later tendered in an attempt to contradict the witness. Thus, a witness’ testimony cannot later be impeached by contradictory evidence unless the contradictory evidence has been previously put to the witness in an express and particularized manner.

See as well the approval of Browne in Peters v. Perras et al. (1909), 42 S.C.R. 244, and United Cigar Stores Ltd. v. Buller et al. (1931), 66 O.L. R. 593 (C.A.) and in an administrative context, John Clark, [1991] OLRB
Rep. May 598.

The rule applies to documentary and oral evidence equally which tends to impeach, i.e., put the lie to or otherwise challenge the truthfulness of a witness on relevant non‐collateral issues in the case.

Since the pursuit of truth is central to the pursuit of justice, one might always tend to resolve a breach of Browne by permitting reply and a costs sanction for delay and so on. However, the fairness and order principles seem to trump such an automatic conditioned condonation of a breach of this longstanding rule of engagement. Prejudice can be automatically found in delay, and a second cross, even limited as it would be on the reply.

Damages – Proof – Lost Profits and the Like – So-Called Judical Guess

Again, it can be seen from the controlling overarching principles already considered, that the question of degree of proof in instances where proof of damage is difficult, does not relieve a claimant of its burden to which it cannot simply pay lip service and expect the Court to fill in the gaps. So, as long as the claimant does the best it can having regard to available evidence to prove its damages and having regard to the manifest difficulties relevant to the case at hand, having established a loss and providing the best data reasonably available in the circumstances, the claimant is entitled to the Court’s best estimate of damages – the sometime called “Judicial Guess”.

This analysis is rife with considerations of ‘he who alleges must prove’; and, ‘the one with the available data must put it before the court in an admissible fashion’.

While again, an easily stated controller in the abstract, a reference to some of the case law to watch the principles actually applied, is useful. Counsel who do not appropriately advise and record their advice in writing may find himself the subject of a potential claim or negligence.

The principles are of general application but often manifest themselves in loss of profit and other alleged future loss cases.

In one of the modern Court of Appeal decisions to revisit this problem, McAlpine v Byrne et al, (2001), 141 O.A.C. 167, the Court reversed the trial judge’s award of damages:

[61]Woodbine bore the burden of proof to establish its entitlement to delay damages for prospective tenants and to establish the quantum of its loss to a standard of probability. The onus was not on McAlpine to disprove Woodbine’s claim. I can accept the trial judge’s somewhat fragile reliance on Mr. Weinberg’s drive‐by testimony discussed later, as an evidentiary basis for her conclusion that Woodbine sustained some loss of net income with respect to prospective tenants, on the basis, as found by the trial judge, that if Mr. Weinberg was concerned about the construction delay, prospective tenants might have similar concerns. However, Woodbine had to prove sufficient facts to enable the trial judge to determine that its prospective tenants loss was $770,000. In my view, it did not do so. I acknowledge that some claims, including this one, are difficult to prove with precision. This is particularly so in claims for noneconomic loss such as claims for pain, suffering and loss of enjoyment of life or for loss of care, guidance and companionship.

[62]In Toronto Transit Commission v. Aqua Taxi Ltd. (1956), 6 D.L.R. (2d) 721 (Ont. H. Ct.), Gale J. made a number of relevant comments with respect to the assessment of damages. He said, at pp. 743‐745:

It is a well‐established principle that where the damages are by their inherent nature difficult to assess, the Court must do the best it can under the circumstances. Such is the case where the Court estimates the damages for loss of expectation of life or for pain and suffering, it being impossible to measure the loss with mathematical accuracy. That is not to say, however, that a litigant is relieved of his duty to prove the facts upon which the damages are estimated … Mayne on Damages, 11th ed., points out at pp. 5‐6:

A distinction must be drawn between cases where absence of evidence makes it impossible to assess damages, and cases where the assessment is difficult because of the nature of the damage proved. In the former case only nominal damages can be recovered. In the latter case, however, the difficulty of assessment is no ground for refusing substantial damages, as, for instance, in an action against a banker for not paying his customer’s cheque, or on a covenant to pay off encumbrances.…

The general rule is that the plaintiff must prove sufficient facts to enable the Court to calculate the loss with reasonable certainty. To this must be added the qualification that, where the damages are, by their intrinsic nature, incapable of assessment with any degree of certainty, the plaintiff must prove the facts and the Court will approximate a sum, even though it may be little better than a guess. [Emphasis added.]

[63] In Aqua Taxi, Gale J. awarded nominal damages after finding that the plaintiff did not prove the facts from which the Court could determine what the plaintiff’s loss was. While he was satisfied that the plaintiff suffered some damages, he said that the plaintiff “has not shown the necessary facts from which I could come to an intelligent conclusion as to what it was. The only alternative would be for me to speculate and that I decline to do.” See also, International Corona Resources Ltd. v. Lac Minerals Ltd. reflex, (1997), 62 O.R. (2d) 1 aff’d, 1989 CanLII 34 (S.C.C.), [1989] 2 S.C.R. 574.

[64] For the reasons that follow, I do not think that the $770,000 prospective tenants delay loss assessment can be sustained. In my opinion, that loss was not proved; it defies logic and to the extent that it may represent a compromise between the high (Royal LePage) and the low (Drivers‐Jonas), it is inconsistent with the trial judge’s findings.

[66]It seems to me that although Woodbine’s economic damages in respect of the prospective tenants were difficult to prove, its loss under this head of damages was capable of proof. To discharge the evidentiary burden that it bore, Woodbine had to establish, to a standard of probability, sufficient facts to enable the trial judge to determine its loss with reasonable certainty. What evidence will be required to establish damages with reasonable certainty will depend on the circumstances of each case. See for example International Corona Resources v. Lac Minerals Ltd., supra . There must be evidence, accepted by the trial judge, from which, as Gale J. stated in Aqua Taxi, supra, the trial judge can come to an intelligent conclusion on the quantum of damages. In my view, a defendant should not have to pay damages based on unproven, speculative assumptions.

[67] In a case where the quantification of damages depends substantially on expert evidence, the weight to be given to the experts’ opinions will depend on whether relevant underlying factual assumptions have been proved. See Sopinka, Lederman and Bryant, The Law of Evidence in Canada, 2d ed. (Butterworths) at p. 646; R. v. Abbey, 1982 CanLII 25 (S.C.C.), [1982] 2 S.C.R. 24; R. v. Lavallée, 1990 CanLII 95 (S.C.C.), [1990] 1 S.C.R. 852.

[100] Woodbine submits that there was a “reasonable preponderance of credible evidence” to substantiate an income loss due to the delay. That, however, begs the question – what was the loss? Woodbine also submits that possibilities based on expert evidence must be considered in the assessment of damages and that causation need only be established to a standard of probability. I agree, provided that the existence of the possibility is established in the reasonable balance of probability. See Schrump v. Koot (1977), 18 O.R. (2d) 337 (Ont. C.A.). I accept that it was open to the trial judge to conclude that there was a real possibility that some prospective tenants did not lease space in Woodbine Place during the November 1, 1989 to March 31, 1990 period. But the existence of a real possibility, or probability, of a loss must lead to an assessment of damages that have a principled connection with the evidence that the trial judge accepted. In my view, the assessment of $770,000 for the prospective tenants delay loss does not pass that test.

[104] I do not think that the prospective tenants delay assessment is supported by evidence that the trial judge accepted. It cannot, therefore, be sustained. In such circumstances, I would normally set aside the $770,000 assessment and direct that there be a new trial. However, neither party seeks a new trial. Moreover, in the circumstances, it is unlikely that there would be additional evidence relevant to Woodbine’s prospective tenants delay claim if there were a new trial. Thus, I will address the assessment of the prospective tenants’ part of Woodbine’s claim directly.

[105] Woodbine sustained some prospective tenants delay loss. Its precise quantification is difficult, if not impossible. Like the trial judge, I reject the Royal LePage approach to the quantification of Woodbine’s loss. It seems to me that Woodbine established an entitlement to somewhat nominal damages. I would assess them at $65,000, an amount that is in significantly better harmony with the evidence and the trial judge’s findings than the trial judge’s assessment of $770,000. This assessment will also take into account the lack of evidence supporting Woodbine’s prospective tenants claim and McAlpine’s submission that in calculating Woodbine’s prospective tenants loss at $770,000, the trial judge in part compensated Woodbine twice…

In so reducing the damages, the Court demonstrated that the sometime referred to nomenclature to control awards – nominal, moderate and full – are not rigid. The Court called the $65,000.00 it awarded, “reasonably nominal”.

The modern seminal case on this point is T.T.C. v. Aqua Taxi Ltd. [1956] 6 D.L.R. (2d) 271 relied upon in McAlpine(supra):

And further from Aqua:

Although the Courts sometimes appear to be at variance in their approach to the degree of proof required for the assessment of substantial damages, I think they are guided by a consistent principle. The general rule is that the plaintiff must prove sufficient facts to enable the Court to calculate the loss with reasonable certainty. To this must be added the qualification that, where the damages are, by their intrinsic nature, incapable of assessment with any degree of certainty, the plaintiff must prove the facts and the Court will approximate a sum, even although it may be little better than a guess. The case at bar falls within the general rule. There is no inherent difficulty in the nature of the damages themselves. The plaintiffs damage was clearly the loss of the fares which it would have received from passengers who traveled on the defendants’ jitney service, and who would otherwise have used the plaintiff’s ferries. Accordingly, the plaintiff was required to prove the facts from which the Court could make a reasonable calculation as to the damages suffered, and that was not done. I am satisfied that there was some damage, but the plaintiff has not shown the necessary facts from which I could come to an intelligent conclusion as to what it was. The only alternative would be for me to speculate and that I decline to do. This is not a case where the nature of the damages makes it practically impossible to measure the loss, and even if it was, the plaintiff would not have satisfied the duty on it to prove the facts on which the calculations could be based. That is an obligation which the Court will never assume and if a plaintiff is unable to discharge it, then substantial damages cannot be awarded.

In Martin v. Goldfarb, [2003] 68 O.R. (3d) 70 another plaintiff failed to provide sufficient evidence of loss on a new trial ordered to assess damages. The dismissal was affirmed and both courts agreed, more or less that inadequate evidence was called to establish the claimed losses. So, a party seeking damages is required to prove sufficient facts to establish that a loss was sustained and then to enable a court to calculate the loss with reasonable certainty in the circumstances.

Strict and Absolute Liability Situations and Reverse Onus Situationations – In Light of the Charter

All categories of offence seemed to have survived in a non‐criminal context, but that debate is for another undertaking (it seems in the criminal context that there will always be a requirement to prove mens rea and attempts at reverse onus will generally fail). The distinction is useful, assuming survival of all, to illustrate the discussion with respect to operation of the burden of calling evidence and proof.

As to “strict” liability offences, Mr. Justice Cory said in R. v. Wholesale Travel Group Inc³².

Where the offence is one of strict liability, the Crown is required to prove neither mens rea nor negligence; conviction may follow merely upon proof beyond a reasonable doubt of the proscribed act. However, it is open to the defendant to avoid liability by proving on a balance of probabilities that all due care was taken.

An oft cited case in this area is R. v. Sault Ste. Marie (City)³³. Strict liability offences involve consideration of what a reasonable person would do in the circumstances³⁴ and whether the defendant rose to those precautions. In the usual case, the Crown (or prosecution, e.g., a Racing Commission offence; a municipal by‐law offence) bears the onus to prove beyond a reasonable doubt, that for example, the defendant did not take (meaning evidence of conduct must be lead by the defendant) the particular precaution a reasonable person would take in the circumstances. If the Crown makes out this prima facie case, the defendant is entitled to raise a defence of due diligence, that is, to showthat it was in no way negligent. The defendant must show – by concrete evidence – that it acted reasonably vis‐ à‐vis the prohibited act alleged³⁵. In R. v. Rio Algom Ltd.³⁶ Goodman J.A. held that, “the reasonable foreseeability of danger resulting from an act or omission which constitutes prima facie proof of the offence alleged is one of the factors to be considered in deciding whether an accused took all the care which a reasonable man might have been expected to take in the circumstances.”

So, the first analysis to be made in this context is which of three types of “offence” one is dealing. If the offence is one requiring mens rea ‐ some cognitive state of mind such as knowledge, intent, or wanton disregard, such must be proved by the prosecution either by inference from the nature of the act committed and the circumstances in which it was committed, or by other evidence.

Strict liability offences require that the prosecution prove only the actus reus leaving it to the defendant to prove that all reasonable care/precaution was taken to avoid what happened or that she was reasonable (but mistaken) in believing a set of facts, which if they had been true, would mean that the act or omission would be an innocent one.

Offences of absolute liability do not allow for such care or mistake. However, in the criminal law, it seems, such offences cannot be successfully prosecuted without proof of mens rea, which, even if not set out in the words of the statute, is presumed.

Public welfare offences are said to be prima facie strict liability offences not requiring proof of mens rea in the absence of words such as “willfully”, “with intent”, “knowingly” or”intentionally” in the statute or regulation. On the other hand, the principle that punishment should in general not be inflicted on those without fault applies.

Factual Presumptions

A factual presumption (as opposed to a statutory presumption) engages the act of inferring from a fact/series of facts³⁷ or in the absence of facts. The latter type of presumption – not based on a fact proven in the lis – may effectively be described as “a rule of substantive law relating to the incidence of a burden of proof which requires that a conclusion be drawn until the contrary is proved.³⁸ ” Discretion is engaged in ordinary factual presumptions – that is the discretion as to whether or not to make the desired inference. The classic illustration of a presumption where there is no discretion is the absolute presumption “of innocence” – that is, one is concluded (presumptively) to be innocent unless the proved (beyond a reasonable doubt) otherwise.

The proof of a presumption based on fact is not subject to proof on a balance of probabilities. It is important to consider adducing contrary evidence when faced with a factual presumption. Leading such evidence may be wise, but is it not, as a matter of evidence law, a requirement.

Presumptions not based on facts (but on “views” or “opinions”) are often a dangerous and unreliable element of any conclusion. For example, the old law relating to presumptions for failure of a complainant to make a timely complaint has been rejected.

In this context, the discussion of the passing of res ipsa loquitur is also germane.

Spoliation and Presumptions

This quaint characterization is but another incidence of the failure of a party to call or tender evidence which it uniquely controlled and therefore gives rise to yet another situation where the court might draw an adverse inference. Spoliation of evidence is an evidentiary rule (not a cause of action) applicable to the deliberate destruction of evidence. If the elements of spoliation are demonstrated then the circumstances raises a rebuttable presumption that the evidence destroyed would have been adverse to the interests of the party who destroyed the evidence. This is merely an example of the general application of the adverse inference.

The party alleging spoliation must make a clear and convincing case (civil standard of proof) for spoliation. Whether the court will draw an adverse inference is discretionary (provided of course that the prima facie case has been made out). Spoliation may result in an evidentiary presumption or to sanctions or to both. This will depend on the specific circumstances of the case including whether the innocent party cannot make out its case because of the spoliation.

Judicial Notice of Facts

Judicial notice describes the legal doctrine where a judge accepts the existence of a proposition of fact even though no party has proven it by admissible evidence³⁹ on the basis that no reasonable person can dispute the proposition⁴⁰. Judicial notice – when properly undertaken – shortens and simplifies trials, helps courts to make consistent findings of fact in different cases raising identical issues, and keeps the courts “alive” to (accepted and demonstrable) knowledge of the world. A court may properly take judicial notice of a notorious fact; that is any fact or matter which is so generally known and accepted that it cannot reasonably be questioned, or any fact or matter which can readily be determined or verified by resort to sources whose accuracy cannot reasonably be questioned⁴¹.

Affirmative Defence via Confession and Avoidance

The general rule ‐ he who asserts has the burden of proof ‐ is important to remember in the context of the affirmative defence by way of ‘confession and avoidance’. In Cadillac Fairview Corp. v. R.⁴² Bowman T.C.C.J., stated the following (at page 407):

The ‘burden of proof’ is the duty which lies on a party to establish his case. It will lie on A, whenever A must either call some evidence or have judgment given against him. As a rule (but not invariably) it lies upon the party who has in his pleading maintained the affirmative of the issue; for a negative is in general incapable of proof. Ei incumbit probatio qui dicit, non qui negat. The affirmative is generally, but not necessarily, maintained by the party who first raises the issue. Thus, the onus lies, as a rule, on the plaintiff to establish every fact which he has asserted in the statement of claim, and on the defendant to prove all facts which he has pleaded by way of confession and avoidance, such as fraud, performance, release, rescission, etc.

When making a pleading of confession and avoidance the pleading party has the burden of establishing the facts to support such plea and to entitle him to judgment thereon. In re Phene’s Trusts (1870)⁴³ Giffard, L.J. said:

The true proposition is that those who found a right upon a person having survived a particular period must establish that fact affirmatively by evidence; the evidence will necessarily differ in different cases, but sufficient evidence there must be, or the person asserting title will fail.

In re Phene’s Trusts establishes there is no presumption of the continuance of life. But while there is no such presumption the evidence may establish circumstances from which such an inference might be fairly drawn, as pointed out by Giffard, L.J., in that case, p. 150. Likewise, there may be circumstances from which it might be inferred that a person is dead even though no one can swear to the fact of death and the lapse of time is not sufficient to invoke the presumption of death, as in the case of a passenger on a vessel lost at sea with no known survivors

A classic example of the affirmative defence in the civil context is a limitation defence. The defendant will – in asserting such a defence – often admit that the wrong was committed but that an action to recover is statute barred. A limitation defence must be pleaded.

Pleadings – Impact on Shifting Burdens of Proof So-Called

The burden does not shift per se. Much like the “duty to mitigate” – which really is not a duty at all – “shifting burdens” or similar terms are misleading. In certain instances, subject to the plaintiff always maintaining the ultimate burden of proof, the defendant may have to lead evidence to rebut the plaintiff’s position. For example, in an arson case, if the insurer leads evidence of financial motive (not determinative but not something to be ignored), the insured ought to do what it can to counter the allegation. In summary, insome cases there may be a tactical burden (or at least reason) on the resisting party to lead evidence, if not disproving matters in the lis, explaining away the plaintiff’s case or at least providing some other reasonable explanation that that advanced by the plaintiff.

Conversely, where the defendant leads certain evidence, the plaintiff, absence sufficient rebuttal, may be subject to an adverse inference.

October, 2008