One of the purposes of having viva voce testimony at trial is so that the trier of fact is able to determine a witness’s credibility and attach the appropriate weight to his/her evidence.

While the determination of a person’s credibility may appear to be a rather personal assessment, according to Madam Justice D.A. Wilson, this is not case at law:

[143]      As I noted in Rider v. Grant2015 ONSC 5456 (CanLII) at para. 90:

In deciding issues of credibility, it is not simply a matter of accepting the evidence of one party over another based on how the witness performed in the witness box. Rather, “the real test of the truth of the story of a witness in such a case must be its 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.” Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.)

Moreover, in the case of 1483677 Ontario Ltd. v. Howard, 2015 ONSC 6217, as excerpted above, Justice Wilson did not find a particular witness to be worthy of belief where,

  1. there were discrepancies between the witness’s testimony at trial and his evidence during an examination for discovery; and

 

  1. the witness was unable to provide a reasonable explanation for the discrepancies between his testimony and the documentary evidence, such as e-mails.

On the other hand, a different witness who responded to questions directly, and without hesitation, even if his answer may have an negative impact on his case was found to be “forthright” and “honest”.  The objectivity and fairness of a witness’ testimony was also preferred.

Happy Friday and thanks for reading!

Doreen So