At p. 5, Laskin J. continued his observation as to the standard of proof and the degree of scrutiny which must be applied when the claim is founded upon an act that involves behaviour that is criminal in nature: There is necessarily a matter of judgment involved in weighing evidence that goes to the burden of proof, and a trial judge is justified in scrutinizing evidence with a greater care if there are serious allegations to be established by the proof that is offered. I put the matter in the words used by Lord Dening in Bater v. Bater, supra, at p. 459 as follows: It is true that by our law there is a higher standard of proof in criminal cases than in civil cases, but this is subject to the qualification that there is no absolute standard in either case. In criminal cases the charge must be proved beyond a reasonable doubt, but there may be degrees of proof within that standard. Many great judges have said that, in proportion as the crime is enormous, so ought the proof to be clear. So also in civil cases. The case may be proved by a preponderance of probability, but there may be degrees of probability within that standard. The degree depends upon the subject-matter. A civil court, when considering a charge of fraud, will naturally require a higher degree of probability than that which it would require if considering whether negligence were established. It does not adopt so high a degree as a criminal court, even when it is considering a charge of a criminal nature, but still it does require a degree of probability which commensurate with the occasion. I do not regard such an approach as a departure from a standard of proof based on the balance of probabilities nor is supporting a shifting standard. The question in all civil cases is what evidence with what weight that is accorded to it will move the court to conclude that proof on a balance of probabilities has been established.
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