The standard of proof in RPD refugee proceedings differs depending on what is being decided. The two core distinctions are:

1. The legal test for whether a person qualifies for refugee protection — which uses a lower threshold than the civil balance of probabilities; and
2. The fact-finding standard — whether the RPD member believes the claimant's evidence about what happened to them — which is assessed on the balance of probabilities.

The claimant always bears the burden of establishing their claim. The Minister bears the burden on exclusion applications.

• IRPA s 96 — Convention refugee: the person must have a well-founded fear of persecution by reason of race, religion, nationality, membership in a particular social group, or political opinion
• IRPA s 97 — person in need of protection: the person would be subjected to a risk to life or cruel and unusual treatment or punishment, or to torture, if removed
• IRPA s 107 — RPD decision to accept, reject, or reject with no credible basis or manifestly unfounded finding
• IRB, Weighing Evidence (Chapter 4) — IRB Legal Services guidance on burden and standard of proof

The well-founded fear test for s 96

To succeed under s 96, a claimant must establish:

1. A subjective fear of persecution — the claimant genuinely fears persecution
2. That the subjective fear is objectively well-founded — there is a serious possibility (also expressed as a reasonable chance) of persecution if the person returns

The objective component does not require the claimant to show that persecution is more likely than not (i.e., the balance of probabilities standard does not apply to the ultimate legal test). A "serious possibility" of persecution — sometimes described as a 10% chance — is sufficient, provided it is well-grounded in the objective evidence. This formulation derives from the Supreme Court of Canada's decision in Chan v Canada (Minister of Employment and Immigration) [1995] 3 SCR 593.

The balance of probabilities for underlying facts

While the legal test for s 96 uses the "serious possibility" standard, the RPD assesses the claimant's specific factual allegations on the balance of probabilities. The member must determine whether the events the claimant says occurred (past persecution, specific incidents) are more likely than not to have happened. This is the credibility finding — did the claimant's account actually occur?

The Maldonado principle (from the Federal Court of Appeal decision in Maldonado v Canada [1980] 2 FC 302) provides that a claimant who swears to the truth of their allegations is presumed to be truthful, unless there are valid reasons to doubt the credibility of their account. This presumption places an initial evidential burden on the RPD member to identify positive reasons to disbelieve the claimant.

Standard for s 97 protection

Under s 97, the standard is whether the person would be subjected to the risk described — that is, on the balance of probabilities, the person would face a risk to life, cruel and unusual treatment or punishment, or torture if removed. This is a higher standard than the s 96 "serious possibility" test. The s 97 analysis is often conducted in the alternative where a s 96 claim fails.

Exclusion applications — Minister's burden

Where the Minister intervenes to argue that the claimant should be excluded from protection under Article 1F of the Refugee Convention, the burden of proof shifts to the Minister:

• For Article 1F(a) (crimes against peace, war crimes, crimes against humanity) and Article 1F(c) (acts contrary to UN purposes and principles) — the Minister must establish exclusion on reasonable grounds to believe
• For Article 1F(b) (serious non-political crime) — the Minister must establish exclusion on the balance of probabilities

No credible basis and manifestly unfounded

Under IRPA s 107(2), the RPD may include a "no credible basis" finding in a negative decision where there is no credible or trustworthy evidence on which the RPD could have accepted the claim. A "manifestly unfounded" finding under s 107.1 applies where the claim is clearly fraudulent. Both findings have the consequence that the person may not appeal to the RAD and faces an accelerated removal timeline.

The distinction between the legal test (serious possibility for s 96) and the fact-finding standard (balance of probabilities) is fundamental to refugee law in Canada. A claimant who establishes their facts to the balance of probabilities threshold still needs to show that their fear meets the "serious possibility" test on the country conditions and personal profile evidence.

The IRB publishes detailed guidance on evidence weighing in its Weighing Evidence series. This is a primary reference for RPD member decision-making on standard of proof.