Litigation: What Do You Have to Prove?



Litigation is a fancy way of saying taking legal action in Court. The Canadian court system is adversarial, meaning the two parties, or litigants, present their cases in front of an impartial person (a Judge), who attempts to determine the truth of the matter and pass judgement accordingly.

In criminal litigation, the prosecutor and defence present their cases to determine the guilt or innocence of a person accused of a crime. Canadian law considers any person accused of a crime innocent until he or she is proven guilty. At trial, the prosecutor must show the Accused is guilty beyond a reasonable doubt. This means the prosecutor must present evidence to establish that the Accused committed the crime, and after hearing this evidence, the Judge does not have any doubt about the fact that the Accused is guilty. If the Judge has a doubt about the Accused’s guilt, and the doubt is reasonable in the circumstances of the case, the Accused cannot be convicted of the crime.

In civil litigation, the litigants present their cases to determine if the Judge will give the applicant (or Plaintiff) what he or she is asking for. The litigant asking for the remedy is the one who is responsible for proving that he or she should get it. Proof beyond a reasonable doubt does not apply in civil litigation. Instead, a Plaintiff must prove his or her case on a balance of probabilities. This means the Plaintiff must show it is more likely than not that what he or she says happened to cause a loss actually occurred. In another way of putting it, the Plaintiff must establish that it is at least 51% likely that his or her account of events is correct. The Plaintiff will not succeed with a claim if he or she cannot reach this threshold.

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