Understanding Sexual Assault and Battery in Civil Litigation: A Series

Part 2: What is the Standard of Proof for Sexual Assault and Battery?

By: Gillian Hnatiw & Co.

In recognition of Sexual Assault Awareness Month, this series summarizes the current civil law in Canada surrounding sexual assault and battery, with the aim of making the law more transparent and accessible for all. For more information or representation related to your legal claim, contact Gillian Hnatiw & Co. here.

For many survivors, the criminal justice system can feel overwhelming, under‑resourced, and narrowly constrained by a very high burden of proof. When criminal charges are not laid, are withdrawn, or result in an acquittal, survivors are often left with the impression that the harm they experienced cannot be legally acknowledged. This article explains how civil courts in Canada approach sexual assault and sexual battery differently. In particular, it outlines the lower standard of proof used in civil cases, how criminal convictions may be used in civil litigation, and why a lack of criminal conviction does not mean survivors are without legal options.

Balance of Probabilities

Civil matters, including civil sexual assault and battery, are proven on the standard of a balance of probabilities. [1] This is the civil “standard of proof” and it requires that the court accept that it is “more likely than not” (meaning over 50% likely) that an alleged event has occurred.[2] This standard of proof is lower than the criminal standard of proof of “beyond a reasonable doubt”.[3] In other words, the civil standard requires enough proof for a decision-maker to believe something probably happened, whereas the criminal standard requires the decision maker to have no reasonable doubt as to whether something occurred. The balance of probabilities standard recognizes that harms are legally compensable even in the absence of absolute certainty, which becomes important in cases involving private, often unwitnessed harm, such as sexual violence.

Admissibility of Criminal Convictions

Sexual assault and battery claims are sometimes adjudicated in a civil court following a conviction for the same reprehensible acts within a criminal court. Since a criminal conviction requires proof beyond a reasonable doubt, a criminal conviction is evidence of wrongdoing where the underlying facts overlap with those in a subsequent civil action.[4] Section 22.1(1) of the Evidence Act, RSO 1990, c. E.23 reads:

Proof of conviction or discharge

22.1 (1) Proof that a person has been convicted or discharged anywhere in Canada of a crime is proof, in the absence of evidence to the contrary, that the crime was committed by the person, if,

(a)  no appeal of the conviction or discharge was taken and the time for an appeal has expired; or

(b)  an appeal of the conviction or discharge was taken but was dismissed or abandoned and no further appeal is available. [5]

In general, proof of a conviction for an offence is proof that the offence was committed by the person convicted. This means that if someone has already been convicted of a crime, the civil court usually accepts that the crime happened. Survivors do not have to relive the entire process or re-prove what has already been established in criminal court.

Moreover, the admissibility of a criminal conviction is not limited to proceedings against the convicted person; it may be relied upon in proceedings against other parties, as long as the underlying offence is relevant to determining their liability.[6] For example, a survivor may be able to rely on a criminal conviction when pursuing civil claims against people or institutions who were not charged criminally, such as employers, organizations, or other responsible parties. This rule has been interpreted in common law to permit reliance on a criminal conviction in multi-defendant civil proceedings, including against defendants who were not charged criminally.[7]

Where there is no Criminal Conviction

It is still possible for victims/survivors to bring a civil claim for sexual assault and battery even where there is no criminal conviction associated with the allegations. There are many reasons why a criminal conviction may not exist for an allegation of sexual assault. First, there are a myriad of reasons why a victim/survivor may not have reported the assault to the police including a lack of comfort or trust with respect to the criminal process. Second, the police or crown may have decided to not lay charges, and that decision is beyond the victim/survivor’s control. Finally, even when allegations proceed to a criminal trial and result in an acquittal, it does not mean that the same allegations could not be proven at the lower standard required to establish civil liability.

In some criminal decisions, a criminal judge will go so far as to say that they believe that the allegations probably occurred, even if they still have reasonable doubt on application of the criminal standard. For example, in the recent criminal decision R. v. F. D., 2025 ONSC 5086, Justice Bellows wrote that she found the victim/survivor complainant, B.B., generally credible, but that inconsistencies in the evidence still created reasonable doubt:

[130]      B. B.’s evidence is challenging. While I may be able to find that it may, or even probably, happened, I can not find that her evidence, considering the whole of the evidence at trial, is sufficient for the very high burden of proof beyond a reasonable doubt.[8]

While not explicitly tasked with determining whether the accused was civilly liable on a balance of probabilities, the criminal trial judge’s commentary suggests that while the allegations were not proven on a criminal standard, they probably met the civil standard of proof.

While many criminal judges are not as explicit as Justice Bellows was in F.D., it will generally be the case that a lack of criminal conviction does not preclude a finding of civil liability on the same or related allegations.

The absence of a criminal conviction does not close the door. Civil law can offer survivors another path to accountability, recognition of harm, and compensation.

Gillian Hnatiw & Co. is a leading firm in civil sexual assault and sexual battery litigation. For experienced representation and clear legal guidance, contact Gillian Hnatiw & Co. here.

The team at Gillian Hnatiw & Co. thanks student Bertina Lou for her contribution and assistance with this article.

If you or someone you know has been affected by sexual violence and requires immediate support, confidential help resources are available in your community.

This article is provided for general informational and educational purposes only and does not constitute legal advice. Reading this content does not create a solicitor‑client relationship. Laws and legal procedures vary depending on individual circumstances and jurisdiction. If you require legal advice regarding your specific situation, please consult a qualified legal professional.

[1] F.H. v. McDougall, 2008 SCC 53, at para 40.

[2] F.H. v. McDougall, 2008 SCC 53 at para 44.

[3] F.H. v. McDougall, 2008 SCC 53 at para 41.

[4] Elizabeth K.P. Grace & Susan M. Vella, Civil Liability for Sexual Abuse and Violence in Canada (Toronto: Butterworths, 2000) at 320.

[5] Evidence Act, RSO 1990, c. E.23, section 22.1(1).

[6] Evidence Act, RSO 1990, c. E.23, section 22.1(2); The Regional Municipality of Halton v. Rewa et al., 2023 ONSC 6985 (CanLII), at para 41.

[7] Elizabeth K.P. Grace & Susan M. Vella, Civil Liability for Sexual Abuse and Violence in Canada (Toronto: Butterworths, 2000) at 323-324.

[8] R. v. F. D., 2025 ONSC 5086 at para 130.