What is the burden of proving malice in a personal injury case?
Yukon, Canada
The following excerpt is from Atkinson v. McMillan, 2009 YKSC 81 (CanLII):
The plaintiff has a considerable burden in proving malice. In jury trials, it is a question of law for the judge to determine whether there is sufficient evidence to submit the issue of malice to the jury. Before doing so, the judge must be of the opinion that the evidence adduced raises a “probability” of its existence: Campbell v. Jones, cited above, at para. 34.
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