May 31, 2023

In nearly every lawsuit, opposing parties put forward different versions of events. After listening to the conflicting evidence, the judge has to make a decision about what really happened. The judge’s determination often hinges on an assessment of the reliability and credibility of the witnesses.

Deciding whether a witness is reliable and credible is not about assessing that person’s sincerity: a witness may appear sincere because they are (innocently) mistaken about what occurred in the past or because they are very good at sounding sincere in order to sell a lie. For this reason, the court will not accept the evidence of a witness based on her demeanour alone.

Factors the Court Will Consider

In 2730453 Ont. Inc., v 2380673 Ont. Inc., 2022 ONSC 6660, Justice Centa set out some of the appropriate factors a court uses to assess the evidence of witnesses:

  1. whether the evidence makes sense by being internally consistent, logical, or plausible;
  2. whether there are inconsistencies or weaknesses in the evidence of the witness such as internal inconsistencies, prior inconsistent statements, or inconsistencies with the evidence of other witnesses;
  3. whether there is independent evidence to confirm or contradict the witness’ evidence [i.e. corroboration], or a lack of such evidence;
  4. the witness’s demeanour, including their sincerity and use of language, although this must be considered with caution; and
  5. whether the witness, particularly one that is a party in a case, has a motive to fabricate.

Justice Centa also quoted from one of the leading decisions on assessing credibility: Faryna v. Chorny, 1951 CanLII 252 (BC CA):

If a trial Judge’s finding of credibility is to depend solely on which person he thinks made the better appearance of sincerity in the witness box, we are left with a purely arbitrary finding and justice would then depend upon the best actors in the witness box. On reflection it becomes almost axiomatic that the appearance of telling the truth is but one of the elements that enter into the credibility of the evidence of a witness. Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility

The trial Judge ought to go further and say that evidence of the witness he believes is in accordance with the preponderance of probabilities in the case and, if his view is to command confidence, also state his reasons for that conclusion. The law does not clothe the trial Judge with a divine insight into the hearts and minds of the witnesses. And a court of appeal must be satisfied that the trial Judge’s finding of credibility is based not on one element only to the exclusion of others, but is based on all the elements by which it can be tested in the particular case.

What Does an Assessment of Credibility Look Like?

After setting out how the court assesses credibility, Justice Centa applied those factors to the evidence he had heard in 2730453 Ont. Inc., v 2380673 Ont. Inc., 2022 ONSC 6660. In that case, the plaintiff argued that he had reached an oral agreement with the defendant to purchase the defendant’s land. The plaintiff asked the court’s assistance to enforce the deal. In response, the defendant argued that was no deal: there had only been a series of discussions between their respective realtors estate agents and lawyers which did not end in an agreement.

In deciding whether an agreement to buy land had been reached, Justice Centa looked most closely at the testimony of the defendant (who denied that there was a deal) and the defendant’s real estate agent (whose evidence was that a deal had been reached). In his reasons, Justice Centa explained why he preferred the testimony of the real estate agent over the defendant’s story:

[The real estate agent’s] evidence was internally consistent, logical, and plausible. He readily acknowledged the limits on his authority and stated that he did not have authority to bind the owner to any particular deal. He saw his role as delivering offers to his client and communicating his client’s acceptance or rejection of those offers. His actions were completely consistent with his stated understanding of his authority and the balance of his evidence.

In contrast, Justice Centa found that the defendant’s evidence was contradicted by his past actions as well as by correspondence sent out by his own lawyer and real estate agent before the litigation began. The judge also noted that the defendant’s evidence at trial was not corroborated by any of the other witnesses. Lastly, the judge was critical of the defendant for trying to attribute subjective meaning to otherwise plain and readily understandable terms:

On December 8, 2019, Mr. Dolson [the lawyer for the defendant] wrote to Mr. Berg [the lawyer for the plaintiff] and confirmed “that I act for the vendor in the above transaction” and that he enclosed “draft documents that will be executed by the vendor for delivery to your office on closing.” Mr. Segal [the defendant] testified that [he] had not retained Mr. Dolson to close the transaction for the sale of the property. Instead, Mr. Segal testified, Mr. Dolson was to “become involved with these people” and have “discussions about things,” while Mr. Segal watched carefully to see what transpired. Mr. Segal testified that when Mr. Dolson wrote “I act” it “means something different than what it might normally mean” and that “[i]t means what I say it means, I think, in my mind.” I do not accept that the meaning of the words used by Mr. Dolson, a lawyer, in correspondence to another lawyer, depend on the subjective meaning ascribed to those words by Mr. Segal. … I am not prepared to give Mr. Dolson’s words the idiosyncratic subjective meaning urged by Mr. Segal.

Having accepted the evidence of the real estate agent that an oral agreement to sell the land existed, the judge turned immediately to the question of whether the agreement was legally enforceable: there was no reason to probe the defendant’s motivations for giving the evidence he did. Whether the defendant was deliberately trying to mislead the court or whether his testimony sprang from a place of genuine misunderstanding is left to the reader to decide.