This appeal revolves around the standard of proof applicable to a finding of misconduct under s. 84(1) of the PSA:
If at the conclusion of a hearing under subsection 66 (3), 68 (5) or 76 (9) held by the chief of police, misconduct as defined in section 80 or unsatisfactory work performance is proved on clear and convincing evidence, the chief of police shall take any action described in section 85.
At the hearing, both the prosecution and defense took the position that the appropriate standard of proof was the balance of probabilities, and the Hearing Officer applied this standard. In fact, as a result of the majority decision in Penner, the correct standard which ought to have been applied was the standard of “clear and convincing evidence” which is a higher standard than the balance of probabilities. Penner was the binding authority on the Divisional Court and it erred in distinguishing it on the basis that all parties in that case accepted that clear and convincing evidence was a higher standard of proof. The main ground of appeal in this matter is that the Hearing Officer applied the wrong standard of proof and thereby committed an error in law. The defense grounded its argument in Penner:
“…. As the Court of Appeal recognized, because the PSA requires that misconduct by a police officer be “proved on clear and convincing evidence” (s. 64(10)), it follows that such a conclusion might, depending upon the nature of the factual findings, properly preclude relitigation of the issue of liability in a civil action where the balance of probabilities – a lower standard of proof – would apply. However, this cannot be said in the case of an acquittal. The prosecutor’s failure to prove the charges by “clear and convincing evidence” does not necessarily mean that those same allegations could not be established on a balance of probabilities. Given the different standards of proof, there would have been no reason for a complainant to expect that issue estoppel would apply if the officers were acquitted. Indeed, in Porter, at para. 11, the court refused to apply issue estoppel following an acquittal in a police disciplinary hearing because the hearing officer’s decision “was determined by a higher standard of proof and might have been different if it had been decided based on the lower civil standard….”
The Commission, and the Divisional Court erred in finding that the standard of proof is based on a balance of probabilities. The Court of Appeal found that “clear and convincing evidence” does not describe the quality of evidence required to meet the balance of probabilities standard in professional discipline matters but is instead a standard of proof in and of itself. Bound by the Supreme Court’s statement in Penner, the Court of Appeal finds that the standard of proof in PSA hearings is a higher standard of clear and convincing evidence and not a balance of probabilities. The majority judgment characterizes the balance of probabilities as a “lower standard of proof” than “clear and convincing evidence” under the PSA.
Elie Labaky, Student-At-Law
Machado Law Professional Corporation
 F.H. v. MacDougall,  3 S.C.R. 41.
 Penner v. Niagara (Regional Police Services Board) 2013 SCC 19.
 Ibid at para. 60.
 Supra note 1.