Court Affirms Need For “Convincing Evidence” Where Evidence of Injury is Entirely Subjective

A glove on the ground as subjective evidence in a personal injury case

In CARTER V. ZAHN, 2012 BCSC 595 (“CARTER”), a judgment released on April 24, 2012, Verhoeven J. held that requiring “convincing evidence” where a plaintiff presents only subjective evidence of ongoing injuries does not contradict Rothstein J.’s holding in F.H. V. MCDOUGALL, 2008 SCC 53 (“MCDOUGALL”) that there is only one standard of proof applicable to civil cases.

In MCDOUGALL, Rothstein J. held that the only standard to be applied in civil cases is the “balance of probabilities” standard, and that this standard does not allow for varying gradations of proof according to the facts of the case. Rather, in all civil cases the court will be tasked with deciding whether the plaintiff’s case has been made out on a balance of probabilities. Rothstein J. held as follows in MCDOUGALL (at paragraphs 43-46):

[43] AN INTERMEDIATE STANDARD OF PROOF PRESENTS PRACTICAL PROBLEMS.  AS EXPRESSED BY ROTHSTEIN, CENTA AND ADAMS, AT PP. 466-67:

AS WELL, 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.

[44] 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 HOFFMANN 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.

IN MY VIEW, THE ONLY PRACTICAL WAY IN WHICH TO REACH A FACTUAL CONCLUSION IN A CIVIL CASE IS TO DECIDE WHETHER IT IS MORE LIKELY THAN NOT THAT THE EVENT OCCURRED.

[45] 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. 

[46] SIMILARLY, EVIDENCE MUST ALWAYS BE SUFFICIENTLY CLEAR, CONVINCING AND COGENT TO SATISFY THE BALANCE OF PROBABILITIES TEST.  BUT AGAIN, THERE IS NO OBJECTIVE STANDARD TO MEASURE SUFFICIENCY.  IN SERIOUS CASES, LIKE THE PRESENT, JUDGES MAY BE FACED WITH EVIDENCE OF EVENTS THAT ARE ALLEGED TO HAVE OCCURRED MANY YEARS BEFORE, WHERE THERE IS LITTLE OTHER EVIDENCE THAN THAT OF THE PLAINTIFF AND DEFENDANT.  AS DIFFICULT AS THE TASK MAY BE, THE JUDGE MUST MAKE A DECISION.  IF A RESPONSIBLE JUDGE FINDS FOR THE PLAINTIFF, IT MUST BE ACCEPTED THAT THE EVIDENCE WAS SUFFICIENTLY CLEAR, CONVINCING AND COGENT TO THAT JUDGE THAT THE PLAINTIFF SATISFIED THE BALANCE OF PROBABILITIES TEST.

In CARTER, Verhoeven J. referred to the above holding in MCDOUGALL before proceeding to consider why case law indicating that “convincing” evidence will be required in circumstances where only subjective evidence of injury is present does not create a higher standard of proof (at paragraphs 61-65):

 [61]         AS DR. RICHARDSON ACKNOWLEDGED IN HIS EVIDENCE, HIS DIAGNOSIS OF THE PLAINTIFF’S INJURIES DEPENDS ENTIRELY UPON HER OWN SUBJECTIVE REPORTS OF PAIN.  THERE ARE NO OBJECTIVE SIGNS OF INJURY.

[62]         IN SUCH CIRCUMSTANCES, I MUST BE MINDFUL OF THE WORDS OF CAUTION EXPRESSED BY MCEACHERN C.J.S.C., AS HE THEN WAS, IN PRICE V. KOSTRYBA, 70 B.C.L.R. 397 AT 399, [1982] B.C.J. NO. 1518 (S.C.) [PRICE], WHICH HAVE BEEN APPLIED MANY TIMES SINCE (FOR EXAMPLE, SEE EDMONDSON V. PAYER, 2012 BCCA 114, [2012] B.C.J. NO. 462, AT PARA. 2):

I AM NOT STATING ANY NEW PRINCIPLE WHEN I SAY THAT THE COURT SHOULD BE EXCEEDINGLY CAREFUL WHEN THERE IS LITTLE OR NO OBJECTIVE EVIDENCE OF CONTINUING INJURY AND WHEN COMPLAINTS OF PAIN PERSIST FOR LONG PERIODS EXTENDING BEYOND THE NORMAL OR USUAL RECOVERY.

AN INJURED PERSON IS ENTITLED TO BE FULLY AND PROPERLY COMPENSATED FOR ANY INJURY OR DISABILITY CAUSED BY A WRONGDOER. BUT NO ONE CAN EXPECT HIS FELLOW CITIZEN OR CITIZENS TO COMPENSATE HIM IN THE ABSENCE OF CONVINCING EVIDENCE — WHICH COULD BE JUST HIS OWN EVIDENCE IF THE SURROUNDING CIRCUMSTANCES ARE CONSISTENT — THAT HIS COMPLAINTS OF PAIN ARE TRUE REFLECTIONS OF A CONTINUING INJURY.

[63]         AS I READ THE DECISION, ALTHOUGH MCEACHERN C.J.S.C. USES THE PHRASE “CONVINCING EVIDENCE”, HE IS NOT SAYING ANYTHING INCONSISTENT WITH THE DECISION IN MCDOUGALL, WHICH HELD THAT THERE IS ONLY ONE STANDARD OF PROOF IN CIVIL CASES, AND THAT IS PROOF ON A BALANCE OF PROBABILITIES (AT PARA. 49).  THIS IS MADE CLEAR BY THE COMMENTS IN THE NEXT PARAGRAPH IN PRICE, WHEREIN MCEACHERN C.J.S.C. STATES AT 399:

… IN SHORT, THE EVIDENCE DOES NOT SATISFY ME TO THE EXTENT REQUIRED IN A CIVIL ACTION THAT THE DEFENDANTS SHOULD BE LIABLE FOR THE PLAINTIFF’S COMPLAINTS BEYOND THE END OF JANUARY 1980.

[64]         THE COMMENTS OF ROTHSTEIN J. AT PARA. 49 OF MCDOUGALL, ARE TO SIMILAR EFFECT:

[49]      … 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.

[65]         ACCORDINGLY, IN THIS CASE THE CREDIBILITY OF THE PLAINTIFF IN RELATION TO HER COMPLAINTS OF INJURY IS CENTRAL TO MY DECISION.  HER CONTENTIONS MUST BE ASSESSED IN LIGHT OF ALL OF THE CIRCUMSTANCES OF THE CASE, INCLUDING OF COURSE, THE MEDICAL EVIDENCE: TAI V. DE BUSSCHER, 2007 BCCA 371, AT PARA. 41.

[EMPHASIS ADDED.]

According to the above analysis, the duty of a court to “scrutinize the relevant evidence with care” requires caution in circumstances where only subjective evidence is present, but this requirement does not elevate the plaintiff’s burden of proof in such circumstances beyond the standard “balance of probabilities”. Requiring that purely subjective evidence be “convincing” in the circumstances of the case is merely part of determining whether it is “more likely than not that an alleged event occurred”, and therefore does not create a higher standard of proof in the civil context.

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