Balance of Probabilities


Definition - What does Balance of Probabilities mean?

We all know about the phrase in the context of criminal or civil trial, but it has a significant importance in the context of workplace investigations, too. More often than not, while investigating sexual harassment or violence and abuse at workplace, employers face a typical challenge of deciding who to believe and who to doubt. There might be different witnesses of a particular event, all giving a different version of the incident. Can one negate them completely or should one address each of the testimonials judiciously? Is the employee under the scanner wrongly judged? Balance of probabilities is the answer to all the above-mentioned questions.

Safeopedia explains Balance of Probabilities

An investigator is required to gather all the information and proof pertaining to an event. To do this, they need to determine whether there is sufficient amount of evidence to prove the allegations. The amount of evidence required for this known as the "standard of proof," which differs in civil and criminal matters. For civil laws, the standard of proof is the balance of probabilities.

Although a lower standard of proof, the balance of probabilities ensures that an employer does not take the wrong decision of penalizing a person when there is no concrete proof against him/her. In Ontario, for instance, the Occupational Health and Safety Act imposes a statutory obligation on employers to ensure that a workplace harassment is investigated in a timely, objective, and confidential manner.

What is the difference between a criminal trial and a workplace investigation? Contrary to the judge in a criminal trial, the workplace investigation is done according to civil standards of proof. It considers the fact the incident in question may not have occurred in the first place, without nullifying the fact that it might have occurred altogether. This is where the balance of probabilities come into place. In such cases, the person concerned is acquitted of a criminal charge but may still face employment-related penalties. One such case was that of Re Canada Post Corp. and Association of Postal Officials of Canada, 56 L.A.C. (4th) 353. An employee of Canada Post was charged with extortion and theft of money, but was still acquitted of the offence. However, on the lower standard of balance of probabilities, he was still found to have committed the crime.

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