Paralegals Canada  


Litigation Paralegals Professional Corporation


Burden of Proof


Generally, within a legal proceeding, the 'burden of proof' will be borne by the side bringing the matter forward.  

In a litigation matter, such as a lawsuit in the Small Claims Court, the Plaintiff has the burden of proving that the Defendant is liable for causing losses to the Plaintiff and the burden of proving the amount of the losses.  This is sometimes referred to as the burden of proving liability and quantum (quantum is Latin for amount).

In a criminal matter (such as charges under the Criminal Code of Canada, or quasi-criminal matter (such as charges under the Highway Traffic Act, the Crown Prosecutor bears the burden of proving the accused as guilty.  However, some offences are 'reverse onus' in which the accused does have the burden of proving innocence.   

Level of Proof? 

Of course, what then is 'proof'?  In civil proceedings, such as Small Claims Court, the burden of proof requires that the 'story' being told is determined true 'beyond the balance of probability' as deemed by a judge.  Of course, the judge is unable to go back in time and travel to where the matter in dispute took place so as to be absolutely sure that that is said to have happened is actually what did happen.  A judge can only determine 'beyond the balance of probability' that something did happen.  However, in criminal proceedings or quasi-criminal proceedings, where much more is at stake than just money, such as a person's freedom, liberty, reputation, the burden of proof is raised to the 'beyond a reasonable doubt' level which considerably higher than the 'balance of probability' requirement.  

It is often very challenging, and emotionally frustrating, for people who have suffered harms and losses to prove a case to the degree required by our legal system.  Unfortunately, there is often very strong suspicion of who is likely responsible; however, there is often insufficient evidence to succeed in a legal case.  In law, much more is needed than just a gut feeling!  

"One of the toughest parts of being a legal advisor is having to look upset people in the eye and tell them that they don't have enough to make a case." ~ Scott McEachern, Licensed Paralegal   

When considering whether there is enough information available to prove a case, potential Plaintiffs struggle greatly (usually the advisor as the Plaintiffs themselves are usually oblivious to the technical legal problem) in trying to calculate a balance between when to bring a legal action and when more is required.  Wait too long and Plaintiffs risks losing the right to bring legal action due to expiry of the limitation period.  Sue too early and Plaintiffs risk being without enough evidence and having a case dismissed for failure to meet the burden of proof.

Expert Opinion Report
Quality expert reports can make or break a case! Errors or omissions in an expert report may preclude the expert report from evidence and preclude the opinion ...

READ MORE