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Evidence - Standard of Proof

. Outram v. College of Massage Therapists of Ontario [administrative/professional context]

In Outram v. College of Massage Therapists of Ontario (Ont Div Ct, 2025) the Ontario Divisional Court allowed an RHPA appeal, here from a Discipline Committee professional misconduct finding - this in a s.70 HPPC appeal which could "hear appeals on both questions of law and fact".

The court held that the Committee "failed to consider important pieces of evidence" and "failed to consider it [SS: the evidence] as a whole" (a rare finding):
i. Credibility Determinations

[25] When making findings of fact in a workplace investigation, it is crucial for fact finders to assess the credibility of witnesses in the context of the evidence as a whole. Importantly, a finding of a lack of credibility in one aspect of a witness’s testimony does not automatically render the entirety of their evidence as non-credible. However, where a witness’ testimony is found to contain significant negative credibility markers, that evidence, assessed in light of all the other evidence in the case, may not render clear, convincing, and cogent evidence -enough to satisfy proof on a balance of probabilities.

[26] In Aslam v Ontario College of Pharmacists 2023 ONSC 2549 [Aslam], the Ontario Divisional Court (the “Court”) overturned a finding of professional misconduct against a pharmacist, stating that the assessment of the complainant’s credibility was flawed.

[27] The appellant appealed the decision from the Discipline Committee of the Ontario College of Pharmacists which found him guilty of professional misconduct. The complainant had alleged that the appellant sexually harassed and assaulted her.

[28] The Committee accepted parts of the complainant’s evidence and found the appellant guilty of misconduct in relation to two of seven alleged incidents:
. an incident where the appellant attempted to grab the complainant’s breast, reach into her pants and shirt, and placed her hand on his groin area; and

. unwelcome touching and advances towards the complainant on various occasions.
[29] The Committee dismissed the remaining allegations because the complainant’s evidence was not found reliable enough to support a finding of guilt. It also found inconsistencies in the complainant’s testimony regarding certain allegations, noting that she had previously made unsubstantiated allegations of sexual misconduct against other employees at the store where she worked.

[30] The decision was challenged on several grounds, including that the Committee’s assessment of the complainant’s credibility and reliability.

[31] The Court agreed and held that, although the Committee correctly stated the legal principles for assessing the credibility of witnesses, it failed to consider important pieces of evidence that could significantly impact the overall credibility and reliability of the complainant. The Court noted, at para. 14, that the Committee compartmentalized the evidence charge by charge and failed to consider it as a whole when assessing the complainant’s reliability regarding the charges of misconduct. The Court emphasized that any concerns about the complainant’s reliability should have been viewed in the context of her reliability as a whole, rather than being limited to one particular incident at a time.

[32] That is what has happened here.

....

[38] The evidence in this case, on which the Tribunal applied the balance of probabilities standard, did not meet the clear, convincing, and based upon cogent evidence standard. The Tribunal relied on the complainant’s evidence and found it credible despite their significant negative credibility findings against her in relation to the “added complaints” she made to the Tribunal Investigator after the police refused to charge the appellant with her original allegations. And even though the Panel found that her evidence was not of a “quality and quantity to justify a finding of sexual abuse” for those added allegations, they failed to go further and assess her credibility as a whole in relation to all the allegations against the appellant.

[39] Where a trier of fact finds significant inconsistencies in the evidence of a witness and rejects the witness’s evidence on an issue, it is incumbent upon it to consider how the inconsistencies and rejection affect the witness’s overall credibility and reliability (Stefanov at para. 67). The trier must not place evidence on each allegation in separate silos; it must consider the totality of the evidence in light of any inconsistencies (F.H. v. McDougall at para. 58).

[40] The Panel found that the complainant’s testimony about whether the appellant touched her vagina was inconsistent with several prior statements and found her evidence on this issue to be unreliable and not credible. The complainant attempted to explain the inconsistencies by stating that she did not inform the police that the appellant touched her vagina because “[t]his was, is a very traumatic time and my brain must have blocked out this piece of -- the part where he touched my vagina during the initial stages of reporting.” It had only been when the College investigator asked the complainant very detailed and specific questions that she recalled that the appellant touched her vagina, even though she had also been asked by the interviewing police officer whether Mr. Outram had touched her vagina.

[41] The Panel rejected that explanation. They found her evidence unreliable because she had not claimed that the appellant touched her vagina in her voice note to her friend, her statement to police, and in her initial complaint to the College. The Panel found her evidence was not credible because it was implausible. Due to these serious issues, the Panel dismissed the allegation about whether the appellant touched the complainant’s vagina.

[42] Despite finding the evidence inconsistent and implausible, the Panel did not then properly go on to consider how these adverse findings affected the complainant’s overall honesty and reliability. Rather, they merely used the finding to determine that the two added allegations that the appellant exposed the client’s genitals, and/or touched her genitals were not made out.

[43] This Court found that the Discipline Committee of the College of Massage Therapists of Ontario made the same error in Stefanov. It found that the Discipline Committee should have considered the impact of the evidence they did not accept on the complainant’s overall reliability when it wrote, at para. 105:
These were serious allegations before the Panel that were not proven by the College. The Panel viewed DH as mistaken in what she thought happened. If DH could be mistaken about these serious allegations, could she be mistaken about the rest of the allegations? The Panel never considered this possibility in the reasons. The Panel’s finding that Mr. Stefanov did not commit these particular allegations ought to have been a consideration in the overall reliability of the evidence of DH and Mr. Stefanov, and it was not.
[44] The Court found the Discipline Committee’s analysis of the complainant’s evidence was “flawed and incomplete”, and that they failed to do a proper analysis of the complainant’s reliability (para. 83).

[45] Similarly, this Court found, in Karkanis v. The College of Physicians and Surgeons of Ontario, 2014 ONSC 7018 (CanLII), 2014 ONSC7018 (Div, Ct.) at para 57, that the Discipline Committee had erred by not considering how the inconsistencies in the complainant’s evidence affected whether to believe the rest of her evidence. The Divisional Court set out that: “[i]t is a matter of common sense that, when a witness says one thing at a hearing, but has said something quite different on an earlier occasion, the fact that the witness has given different versions may be important in deciding whether, or how much, to believe of, and rely upon, the witness’ evidence”.

[46] Here, the Panel rejected the allegations that the appellant touched the complainant’s vagina on the basis that her evidence on the issue was unreliable and not credible but did not consider how that impacted her overall reliability and credibility. Rather, they only addressed how the inconsistency affected the complainant’s credibility about the individual allegation that the appellant touched her vagina.

[47] The Committee was alive to the fact that the central issue in the case was the credibility and reliability of the witnesses but accepted the flawed evidence of the complainant. It failed to address how a major inconsistency and implausibility affected her overall credibility and reliability, This is a palpable and overriding error.

[48] The problems in the complainant’s testimony were material to her evidence and related to all of the allegations in the Notice of Hearing. Given that the Panel accepted the allegations because they found the complainant credible, they erred. A correct analysis of the complainant’s credibility in this matter would have shown her to be significantly less credible and far from giving clear, convincing and cogent evidence.

[49] As a result of their error, their findings of misconduct were wrong, and the decision cannot be supported.
. Outram v. College of Massage Therapists of Ontario [administrative/professional context]

In Outram v. College of Massage Therapists of Ontario (Ont Div Ct, 2025) the Ontario Divisional Court allowed an RHPA appeal, here from a Discipline Committee professional misconduct finding - this in a s.70 HPPC appeal which could "hear appeals on both questions of law and fact".

The court considers the standard of proof applying in a professional misconduct context:
[33] The civil standard of proof is a balance of probabilities: F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, at para. 40. This means that when reaching a factual conclusion in a civil case one must “decide whether it is more likely than not that the event occurred” (para. 44). This standard applies at the trial/merits level.

[34] In F.H., the Supreme Court concluded, at para. 46, that “... evidence must always be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test”. It further noted, ., at para. 31, that
In Ontario Professional Discipline cases, the balance of probabilities requires that proof be “clear and convincing and based upon cogent evidence” (see Heath v. College of Physicians & Surgeons (Ontario) (1997), 1997 CanLII 14524 (ON SCDC), 6 Admin. L.R. (3d) 304 (Ont. Ct. (Gen. Div.)), at para. 53).
[35] In Stefanov v College of Massage Therapists of Ontario, 2016 ONSC 848 (Div. Ct.), a massage therapist was found to have breached a standard of practice of the profession, engaged in sexual abuse of a patient and engaged in conduct or performed an act relevant to the practice of the profession that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional. The Divisional Court held that, in cases like this, the clear, convincing, and cogent evidence requirement is:
particularly important in this case because sexual abuse is one of the most significant and serious findings that the Panel can make against a member. Given the consequences of such a finding, the Panel is required to act with care and caution in assessing and weighing all the evidence. In doing so, the Panel must ensure that the evidence is of such a quality and quantity to justify a finding of sexual abuse (Re Bernstein and College of Physicians and Surgeons of Ontario (1977), 1977 CanLII 1072 (ON SC), 15 O.R. (2d) 447 (Div. Ct.), at pp. 486-488) [emphasis added].
. Kitmitto v. Ontario (Securities Commission)

In Kitmitto v. Ontario (Securities Commission) (Div Court, 2024) the Divisional Court considers (and dismissed) related appeals from two Capital Markets Tribunal (CMT) decisions, one respecting 'merits' and one respecting 'sanctions' [under Securities Act (SA), s.10(1)], here addressing SA 76 "which prohibits insider trading and tipping" ['Part XVIII - Continuous Disclosure ' ('Trading where undisclosed change' and 'Tipping')].

Here the court addresses tension perceived to exist between individual circumstantial 'inference' conclusions, and the more general standard of proof principle that a case should be decided on the "cumulative effect of all the evidence":
[103] In concluding that Mr. Candusso traded while in possession of Amaya MNPI, the Tribunal majority weighed the totality of the evidence and circumstances. It did not examine individual pieces of evidence in isolation, as Mr. Candusso does in his submissions. Where (as here) arguments are advanced that individual items of circumstantial evidence are explained on bases other than guilt, “it is essential” to keep in mind the cumulative effect of all the evidence. As the Court of Appeal stated in R. v. Uhrig, 2012 ONCA 470, at para 13:
Individual items of evidence are not to be examined separately and in isolation, then cast aside if the ultimate inference sought from their accumulation does not follow from each individual item alone. It may be and very often is the case that items of evidence adduced by the Crown, examined separately, have not a very strong probative value. But all the evidence has to be considered, each item in relation to the others and to the evidence as a whole, and it is all of them taken together that may constitute a proper basis for a conviction…. [Emphasis added.] [Citation omitted.]
[104] I see no reversible error in the Tribunal majority’s findings that Mr. Candusso had opportunity to acquire Amaya MNPI or that his trades were timely, uncharacteristic, risky and profitable. Mr. Candusso clearly had the opportunity to acquire Amaya MNPI from Mr. Kitmitto. They were in daily contact as close friends and roommates. As well, I agree with the OSC that the evidence the Tribunal majority relied on, taken as a whole, supports the findings that Mr. Candusso’s trades were timely, uncharacteristic, risky and profitable: see Merits Decision, at paras. 260(b), (c) and (d).

[105] I also see no error in the Tribunal majority’s reliance on these findings to conclude that Mr. Candusso traded while in possession of Amaya MNPI. The opportunity to acquire MNPI together with timely and profitable trades support that inference: Suman, at para. 302. It does not assist the analysis to suggest that the trades were not as timely, uncharacteristic or risky as they hypothetically could have been. That is not a sufficient basis to show that the Tribunal majority’s findings were clearly wrong, unreasonable, or unsupported by the evidence. I am satisfied that the cumulative effect of all the evidence and circumstances reasonably supports the inferences drawn by the Tribunal majority: Uhrig, at para. 13; Finkelstein v. Ontario (Securities Commission), 2018 ONCA 61, 139 O.R. (3d) 166, at para. 101, leave to appeal refused, [2018] S.C.C.A. 98.
. Prince v Chief Executive Officer of the Financial Services Regulatory Authority of Ontario

In Prince v Chief Executive Officer of the Financial Services Regulatory Authority of Ontario (Div Court, 2023) the Divisional Court considered the appellant's argument that, in a professional discipline tribunal hearing [here before Financial Services Tribunal, acting under the Mortgage Brokerages, Lenders and Administrators Act, 2006 (the 'MBLAA')] that the standard of proof was higher than the normal civil standard of 'balance of probabilities' (it wasn't):
[1] The Appellant appeals from a decision of the Financial Services Tribunal (the “Tribunal”) under the Mortgage Brokerages, Lenders and Administrators Act, 2006. (the “MBLAA”).

[2] The Appellant requested a hearing before the Tribunal after receiving a notice of proposal to revoke her mortgage licence based on a reasonable belief that she was not suitable to be licensed as a mortgage agent. The grounds for this belief were the Appellant’s past conduct, false statements by the Appellant in her application to be licensed on three subsequent renewals and for misleading Financial Services Regulatory Authority of Ontario (“FSRA”) investigators.

....

[11] The Appellant submitted that a sliding scale or higher standard should be applied in circumstances such as this. Counsel referred the panel to Australian authorities to that effect and to a strongly worded minority opinion by the Chief Justice of the Supreme Court of New Zealand that a higher standard should be applied in circumstances where serious allegations and penalties are engaged: Z v. Dental Complaints Assessment Committee [2008] NZSC 55; [2009] 1 NZLR 1.

[12] I disagree.

[13] It is well settled law in Canada that there is one civil standard of proof at common law, which is proof on the balance of probabilities, notwithstanding the seriousness of the allegations or the consequences: F.H. v. McDougall, 2008 SCC 53 at para. 40 [2008] 3 SCR 41 (CanLII). This decision is binding on us as it was on the tribunal below.

[14] The Tribunal correctly applied the civil standard of proof to the hearing evidence and carefully set out its reasons for rejecting the Appellant’s evidence. It did not commit any legal error in its application of the standard of proof. Further, the prosecution’s case was established by clear and cogent evidence, most of which was not contested. The issue before the Tribunal was in respect of the appellant’s explanations for the impugned conduct, explanations which were rejected by the tribunal for reasons that are discussed below. I would not give effect to this ground of appeal.
. Re/Max Realty Specialists Inc. v. 2452303 Ontario Inc.

In Re/Max Realty Specialists Inc. v. 2452303 Ontario Inc. (Ont CA, 2023) the Court of Appeal clarified that a 'standard of proof' applied to the totality of evidence of liability:
[8] We disagree. It is well-established that the standard of proof applies only to the trier of fact’s final evaluation of liability on an issue and is not to be applied piecemeal to individual items or categories of evidence: see R. v. Ménard, 1998 CanLII 790 (SCC), [1998] 2 S.C.R. 109, at para. 23. The trial judge’s reasons clearly disclose that when she looked at the totality of the evidence, she was satisfied that the respondent had demonstrated, on a balance of probabilities, that Mr. Jhutty wrote the questioned initial, which was the only issue in dispute at the trial. She committed no error in so concluding.
. Gefen Estate v. Gefen

In Gefen Estate v. Gefen (Ont CA, 2022) the Court of Appeal considers the civil standard of proof:
[36] The only civil standard of proof is proof on a balance of probabilities: F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, at para. 40. In all cases, the evidence adduced to meet this standard must be “sufficiently clear, convincing and cogent” to persuade the trier of fact of the merits of the claim on a balance of probabilities: McDougall, at para. 46.

[37] The “quality” of the evidence required to meet the standard will vary according to the nature of the claim and the evidence capable of being adduced: Nelson (City) v. Mowatt, 2017 SCC 8, [2017] 1 S.C.R. 138, at para. 40. So, for example, as explained in Mowatt, in historical adverse possession claims, the quality of the supporting evidence might not be as robust as evidence of recent possession, but it must still be sufficient to meet the burden of proof. Or, as illustrated by Canada (Attorney General) v. Fairmont Hotels Inc., 2016 SCC 56, [2016] 2 S.C.R. 720, the quality of the evidence to be adduced by a party seeking rectification is such that it must displace an instrument to which the party had previously subscribed. Cogent and convincing evidence will be needed to “counteract the inherent probability that the written instrument truly represents the parties’ intention because it is a document signed by the parties”: Fairmont Hotels Inc., at para. 36. However, the party must nonetheless meet the standard of proof. Thus, the quality of the evidence may vary depending on the claim, but the standard of proof will always remain the same: proof on a balance of probabilities.
. The Association of Professional Engineers of Ontario v. Rew

In The Association of Professional Engineers of Ontario v. Rew (Div Ct, 2020) the Divisional Court affirmed that there is only one standard of proof in civil matters:
[70] In F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, the Supreme Court of Canada confirmed that there is only one standard of proof in civil proceedings – proof on a balance of probabilities. In McDougall, the Supreme Court discussed the attempts made in prior Canadian jurisprudence to “reconcile the tension between the civil standard of proof on a balance of probabilities and cases in which allegations made against a defendant are particularly grave” (para. 26). Such cases included allegations of professional misconduct. The various “intermediate” approaches used by prior courts in civil cases, where criminal or morally blameworthy conduct was alleged, were summarized by the Supreme Court in para. 39 and included “[n]o heightened standard of proof in civil cases, but the evidence must be clear, convincing and cogent.”

[71] The Court rejected all of the “intermediate approaches” identified in para. 39, and held that “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” (at para. 40). The Court went on to discuss the reasons why the criminal standard could not be imported into civil proceedings and why any suggestion of an intermediate standard presents practical problems. The criminal standard of beyond a reasonable doubt is linked to the presumption of innocence and, “in civil cases, there is no presumption of innocence” (at para. 42). Further, “suggesting that the standard of proof is ‘higher’ than the ‘mere balance of probabilities’ inevitably leads one to inquire: what percentage of probability must be met? This is unhelpful because while the concept of ‛51 percent probability’ or ‘more likely than not’ can be understood by decisionmakers, the concept of 60 percent or 70 percent probability cannot” (at para. 43, citation omitted). Finally, to somehow suggest that a higher level of scrutiny applies to the evidence in a civil case involving serious allegations implies that in less serious cases the evidence must be scrutinized with less care. Evidence “must always be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test” (at para. 46).


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Last modified: 21-07-25
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