CHAPTER 3
EVIDENCE
3.1 Nature of Proof
Evidence plays a crucial role in the administration of administrative justice. If a tribunal makes a decision without having heard or considered evidence, its decision will be quashed on the ground that it denied natural justice or exceeded its jurisdiction (a distinction must be drawn between the complete absence of evidence and insufficient evidence, however);392 the latter is a matter of probative value or weight.
From this stems the fundamental principle that a tribunal's decision must be based on evidence submitted by the parties and otherwise admissible evidence.393 In other words, the evidence must have been tendered to the tribunal or otherwise validly admitted by it.
To make a decision based on the evidence means to use reliable information that tends logically to show the existence or non-existence of facts relevant to the issue to be determined. Lord Diplock humorously remarked: "the requirement that a person must base his decision upon evidence means . . . that he must not spin a coin or consult an astrologer."394 An administrative tribunal has not based its decision on the evidence if, for example, it has relied solely on a policy manual and has not considered the evidence in the docket.395
The case law firmly establishes that the board must rule on all the evidence and not only on the statements and testimony given at the hearing.396
The tribunal is "statutory." This means that a statute sets out what must be proven through documents and testimony that expresses facts (events or situations observable through senses) or opinions. Whereas facts are objectively observable, opinions are subjective. Evidence can include either; and the distinction between fact and opinion is important because of its impact on probative value.
It would appear that information conveyed to or obtained by a tribunal in the ordinary course is not necessarily evidence. For example, the explanations of court support staff, a legal opinion obtained by a tribunal or one of its members, or the pleadings a solicitor of record, are not considered evidence in administrative law;397 this applies to representatives' statements before the board.398 Neither are the submissions of the Commission, which do not prove their contents per se. 399 The submissions contain the Commission's position, set out its claims and arguments, and refer to items of evidence (letters, documents investigation or interview reports).
The other important issue in this area is the requisite standard of proof in administrative tribunals. As we shall see, the question of which party has the burden of proof, and the possibility of the burden being shifted from one party to the other based on a system of presumptions, each depends on this standard.
According to the traditional principles of public and private judicial law, the standard in criminal proceedings is proof beyond a reasonable doubt, and is grounded in the constitutional principle of presumption of innocence. By contrast, the civil standard is proof on a balance of probabilities (preponderance of evidence). It has always been felt that administrative proceedings are civil and that, unless otherwise specified, the applicable standard is proof on a balance of probabilities.400
Balance of probabilities (or preponderance of the evidence) means that existence of a fact is more likely than its non-existence, and that the issue to be determined is not only possible, but probable, rather than improbable. If the evidence is such that the tribunal can say: we think it more probable than not, the burden is discharged. If the probabilities are equal, it is not discharged.401
Administrative law has not treated this preponderance principle as a rigid and universal rule. Variations have been allowed in disciplinary matters and in cases where quasi-criminal sanctions might be imposed. Clear and convincing evidence is likely to be required in such circumstances, and has been in serious professional misconduct cases where the penalty is quasi-criminal,402 and in disciplinary grievance arbitrations.403 Some cases stand for the proposition that this standard applies to situations where a tribunal might suspend or revoke a licence on the basis that a law or regulation has been violated.404
Boards must have before them sufficiently detailed evidence in cases of penalties405 and misconduct.406 The difference between balance of probabilities and clear and convincing evidence is one of degree, and it is the court's or tribunal's role to establish what that degree is.
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