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Standard of proof in wrongful dismissal cases

Many of us, influenced as we are by television and movies, are quite familiar with the notion that guilt must be proven “beyond a reasonable doubt”. And while there may be some debate over precisely what that means, we have an understanding that it is a particularly high threshold. However, the standard is significantly lower in civil cases such as wrongful dismissal claims, where our Courts have confirmed that the standard to which an employer must prove its case is proof on a “balance of probabilities.” Toronto District School Board v. Elementary Teachers’ Federation of Ontario, (2013) ONSC 594 (CanLII).

Essentially, what this means is that the employer must show that their version of events is more likely than not, or fifty percent plus one.

The leading case on this issue is F.H. v. McDougall (2008) SCC 53 (CanLII), in which the Supreme Court clarified some uncertainty regarding the standard to be applied, particularly in situations where the misconduct relied upon to justify dismissal related to criminal or quasi-criminal conduct. As the Court wrote:

Much has been written as judges have attempted 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. Such cases include allegations of fraud, professional misconduct, and criminal conduct, particularly sexual assault against minors…

Like the House of Lords, I think it is time to say, once and for all in Canada, that there is only one civil standard of proof at common law and that is proof on a balance of probabilities. Of course, context is all important and a judge should not be unmindful, where appropriate, of inherent probabilities or improbabilities or the seriousness of the allegations or consequences. However, these considerations do not change the standard of proof. I am of the respectful opinion that the alternatives I have listed above should be rejected for the reasons that follow…

In the result, I would reaffirm that in civil cases there is only one standard of proof and that is proof on a balance of probabilities. In all civil cases, the trial judge must scrutinize the relevant evidence with care to determine whether it is more likely than not that an alleged event occurred. [emphasis added]

The Supreme Court decision remains the guiding principle. Recently, the Ontario Divisional Court, in Toronto District School Board v. Elementary Teachers’ Federation of Ontario addressed concerns that the Arbitrator was alleged to have adopted a higher standard and therefore erred in his decision. The Arbitrator outlined the test correctly:

The appropriate standard against which the Employer must prove its case is proof on a balance of probabilities. In applying this standard, the seriousness of the allegations are taken into account.

However, the following passage gave rise to the concern of the employer:

I agree in the above approach to consideration of the evidence in the instant case. Thus, given the serious nature of the allegations against the grievor and the seriousness of the consequences, the evidence concerning the students’ allegations must be carefully considered to determine whether or not the events occurred. Accordingly, there must be clear and convincing proof the grievor did slap Student A’s hand and did inappropriately remark upon Student B’s religion.

The employer appealed the Arbitrator’s decision, arguing that the wording above suggests that the Arbitrator held the employer to a standard that was too high. The Divisional Court acknowledged that the reference to “clear and convincing proof” may have been inappropriate, but that the reasons as a whole confirmed that the Arbitrator did not apply the wrong standard of proof. As a result, the appeal was dismissed.

This recent case provides a timely reminder for employers, employees, and their counsel that despite the requirements in a criminal prosecution, an employer does not have to prove allegations of misconduct “beyond a reasonable doubt” in the content of a wrongful dismissal claim.

Stuart Rudner
Miller Thomson LLP

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Stuart Rudner

Employment Lawyer at Rudner MacDonald LLP
Stuart Rudner is a leading HR Lawyer and a founding partner of Rudner MacDonald LLP, a firm specializing in Canadian Employment Law. He provides clients with strategic advice regarding all aspects of the employment relationship, and represents them before courts, mediators and tribunals. He is the author of You’re Fired! Just Cause for Dismissal in Canada, a textbook and database of summary dismissal cases published by Carswell. Read more
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