Evidence; Procedure; Costs

• Jurisdiction: Canada
• Pages: 596-655
• Author: Julien D. Payne,Marilyn A. Payne

596

 

Evidence;1 Procedure;2 Costs

A. CREDIBILITY

Where a court has serious concerns about the credibility of a party on signicant disputed

issues, it may reject the evidence unless there is other independent testimony or reliable

documentation that provides corroboration.3 Several criteria should be considered by a court

in assessing credibility, including the reasonableness of the evidence; contradictions in the

evidence (internal consistency); whether or not the witness’s character has been impugned;

personality and demeanour; corroboration (external consistency); self-interest; powers of

observation and recollection; and capacity of expression.4 In Gill Tech Framing Ltd v Gill,5

KerJ of the British Columbia Supreme Court set out the following important factors for

resolving testimonial conict and credibility issues:

[27] e factors to be considered when assessing credibility were summarized by Madam

Justice Dillon in Bradshaw v. Stenner, 2010 BCSC 1398 (CanLII) at para. 186, as follows:

Credibility involves an assessment of the trustworthiness of a witness’ testimony

based upon the veracity or sincerity of a witness and the accuracy of the evidence that

the witness provides (Raymond v. Bosanquet (Township) (1919), 1919 CanLII 11 (SCC),

 For a valuable review of the admissibility of surreptitious audio and video recordings, see DeGiorgiov

DeGiorgio,  ONSC , citing Professor Martha Shaer, “Surreptitiously Obtained Electronic Evi-

dence in Seven Simple Steps” ()  Canadian Family Law Quarterly at . See also Ting v Ti ng, 

ABQB , a’d  ABCA ; KWK v VLC,  BCSC ; Van Ruyven v Van Ruyven,  ONSC

 at paras –; DeGiorgio v DeGiorgio,  ONSC ; Heimlick v Longley,  SKQB ; CTB v

BAAB,  YKSC . See also Paftali v Paftali,  ONSC .

 For an excellent review of orders relating to social media, see Justice Deborah Chappel, “Orders Refer-

ring to Social Media: e Positives and the Pitfalls”, reproduced in the Proceedings of the County of

Carleton Law Association, th Annual Institute of Family Law, Montebello, Quebec, – April .

 AMB v MAT,  BCSC  at para , cited with approval in Mansoor v Mansoor,  BCSC .

 DLG v GDR,  NBQB ; Passarello v Passarello, [] OJ No  (SCJ).

  BCSC , cited in Sebok v Babits,  BCSC  at para ; see also Goodhew v Summers, 

BCSC ; JM v ST,  BCSC ; AS v SS,  BCSC .

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Evidence; Procedure; Costs 597

59 S.C.R. 452, 50 D.L.R. 560 (S.C.C.)). e art of ass essment involves examination of

various factors such as the ability and opportunity to observe events, the rmne ss

of his memory, the ability to resist the inuence of interest to modify his recollec-

tion, whether the witness’ evidence harmonizes with independent evidence that

has been accepted, whether the witness changes his testimony during direct and

cross-examination, whether the witness’ testimony seems unreasonable, impossible,

or unlikely, whether a witness has a motive to lie, and the demeanour ofa witness

generally (Wallace v. Davis (1926), 31 O.W.N. 202 (Ont. H.C.); Faryna v. Chorny,

[1952] 2 D.L.R. 152 (B.C.C.A.) [Far yna ]; R. v. S.(R.D.), 1997 CanLII 324 (SCC), [1997]

3 S.C.R. 484 at para. 128 (S.C.C .)). Ultimately, the validity of the evidence depends

on whether the evidence is consistent with the probabilities aecting the case as a

whole and shown to be in existence at the time (Fary na at para. 356).

[28] In assessing credibility in the face of conicting evidence, the Nova Scotia Supreme

Court in Re: Novac Estate, 2008 NSSC 283 (CanLII) noted the following at paras. 36 and 37:

[36] ere are many tools for assessing credibility:

a) e ability to consider inconsistencies and weaknesses in the witness’s evidence,

which includes internal inconsistencies, prior inconsistent statements, incon-

sistencies between the witness’ testimony and the testimony of other witnesses.

b) e ability to review independent evidence that conrms or contradicts the

witness’ testimony.

c) e ability to assess whether the witness’ testimony is plausible or, as stated

by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252

(BC CA), [1951] B.C.J. No. 152, 1951 CarswellBC 133, it is “in harmony with the

preponderance of probabilities which a practical [and] informed person would

readily recognize as reasonable in that place and in those conditions,” but in

doing so I am required not to rely on false or frail assumptions about human

behavior.

d) It is possible to rely upon the demeanor of the witness , including their sincerity

and use of language, but it should be done with caution (R. v. Mah, [2002] N.S.J.

No. 349, 2002 NSCA 99 (CanLII), paras. 70–75).

e) Special consideration must be given to the testimony of witnesses who are

parties to proceedings; it is important to consider the motive that witnesses

may have to fabricate evidence. (R. v. J.H., 2005 CanLII 253 (ON CA), [2005]

O.J. No. 39 (Ont. C.A.), paras.51–56).

[37] ere is no principle of law that requires a trier of fact to believe or dis-

believe a witness’s testimony in its entirety. On the contrary, a trier may believe none,

part or all of a witness’s evidence, and may attach dierent weight to dierent parts

of a witness’s evidence. (See R. v. D.R. 1996 CanLII 207 (SCC), [1996] 2 S.C.R. 291

at para. 93 and R. v. J.H., supra).

And in McBennett v Danis, Chappel J of the Ontario Superior Court of Justice provided

the following list of relevant factors that courts variously employ in assessing credibility and

the reliability of witnesses:

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598   ,  

1. Were there inconsistencies in the witness’ evidence at trial, or between what the witness

stated at trial and what they said on other occasions, whether under oath or not?Incon-

sistencies on minor matters of detail are normal and generally do not aect the credibil-

ity of the witness, but where the inconsistency involves a material matter about which

an honest witness is unlikely to be mistaken, the inconsistency can demonstrate care-

lessness with the truth (R. v. G.(M.); R. v. D.A.).

2. Was there a logical ow to the evidence?

3. Were there inconsistencies between the witness’ testimony and the documentary

evidence?

4. Were there inconsistencies between the witness’ evidence and that of other credible

witnesses?

5. Is there other independent evidence that conrms or contradicts the witness’ testimony?

6. Did the witness have an interest in the outcome, or were they personally connected to

either party?

7. Did the witness have a motive to deceive?

8. Did the witness have the opportunity and ability to observe the factual matters about

which they testied?

9. Did they have a sucient power of recollection to provide the court with an accurate

account?

10. Were there any external suggestions made at any time that may have altered the wit-

ness’ memory?

11. Did the evidence appear to be inherently improbable and implausible?In this regard, the

question to consider is whether the testimony is in harmony with “the preponderance

of the probabilities which a practical and informed person would readily recognize as

reasonable in that place and in those conditions?”.

12. Was the evidence provided in a candid and straightforward manner, or was the witness

evasive, strategic, hesitant, or biased?

13. Where appropriate, was the witness capable of making concessions not favourable to

their position, or were they self-serving?

14. Consideration may also be given to the demeanor of the witness, including their sincerity

and use of language.However, this should be done with caution.. . . [A]n assessment of

credibility based on demeanour alone is insucient where there are many signicant

inconsistencies in a witness’ evidence. . . . e courts have also cautioned against prefer-

ring the testimony of the better actor in court, and conversely, misinterpreting an honest

witness’ poor presentation as deceptive.6

A motions judge may be found in error by an appellate court because of a failure to order

a viva voce hearing to resolve the issue of credibility generated by conicting adavits.7

Notwithstanding the diculties of judicially determining credibility in the face of conict-

ing adavits, however, such conicts are not an absolute bar to making ndings of fact.8 A

  ONSC  at para .

 Steele v Koppanyi, [] MJ No  (CA).

 Hartley v Del Pero,  AB CA ; D’Ambrosio v D’Ambrosio, [] BCJ No  (SC) (submissions

sought from counsel as to whether the case should proceed on adavit evidence or be placed on the

trial list).

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