Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 2, Administration of FOIP. Updated 7 March 2023. 42 Section 61: Burden of Proof Burden of proof 61 In any proceeding pursuant to this Act, the burden of establishing that access to the record applied for may or must be refused or granted is on the head concerned. Section 61 of FOIP provides that the government institution has the burden of proof if it claims that access should or must be refused under FOIP. The burden is not on the applicant to establish that an exemption does not apply. Burden of proof is the obligation of one of the parties in a review to persuade the Commissioner to decide an issue in its favour.61 When it is said that a party has the “burden of proof”, what is meant is that one party has a duty in law first to bring forward evidence that a particular fact or situation exists, and then to persuade the Commissioner that the evidence meets the necessary standard of proof.62 Standard Required to Meet Burden of Proof In law there are different standards that must be met in order to satisfy the burden of proof. These standards are applied in different situations. The one most people are familiar with is the standard of proof “beyond a reasonable doubt.” This standard applies in criminal cases. civil cases, such as cases involving contractual disputes, have a lesser standard. That standard is proof “on a balance of probabilities” or “on a preponderance of evidence.” For matters before the Commissioner, this lesser standard applies.63 The term balance of probabilities is difficult to define, but it is more than a mere possibility. It has been taken to mean that the person deciding a case must find that it is more probable than not that a contested fact exists. In the FOIP context, a party will have proven its case on a balance of probabilities if the Commissioner can say “I think it is more likely, or more probable, than not.”64 61 Service Alberta, FOIP Guidelines and Practice: 2009 Edition, Appendix 1, Definitions. 62 SK OIPC Review Report F-2013-005 at [20]. 63 Service Alberta, FOIP Bulletin No. 9, Burden of Proof, November 2009 at p. 2. 64 Service Alberta, FOIP Bulletin No. 9, Burden of Proof, November 2009 at p. 2.
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