Sep 21, 2020

Courts have said that in credibility cases adjudicators should say more than just that they believed one witness over another. There should be some explanation of those findings. However, articulating why one witness is more credible than another witness is difficult. In one recent discipline case, the highest court of British Columbia gave an example of what might be acceptable reasons. In The Law Society of British Columbia v. Sas, 2016 BCCA 341 the tribunal in that case used language such as evidence that was “argumentative, imperious, self-serving and evasive” or that was “argumentative, evasive in answering some questions, and non-responsive in answering others”. The tribunal gave examples in its reasons to illustrate these conclusions. The tribunal also did a close analysis of the substantive series of events describing what it viewed as actually having occurred. The Court said that the tribunal had not used “empty descriptions to characterize the evidence of” the witnesses it did not believe. The “reasons were “meaningful, and describe proper bases for assessing evidence”.

The Court also gave the tribunal a pass on not addressing a discrepancy between a witness’ original statement and her testimony at the hearing as to whether she issued one or three cheques on a particular account. The Court said: “While [the practitioner’s] counsel undertook an extended cross-examination on the discrepancies between Ms. Clarke’s original statement and her testimony at trial, the discrepancies were not of any particular moment. They went only to minor details surrounding the August 31, 2011 transactions. At most, the discrepancies might have cast some doubt on Ms. Clarke’s ability to recall minute details of the August 31 transactions. The discrepancies did not go to the nature of the transactions, themselves. In my view, given the limited importance of the discrepancies, it was not incumbent on the hearing panel to mention them in its reasons.”

Thus discipline panels need to articulate in some reasonable fashion why it believed one witness over another and should discuss any significant discrepancies in the evidence of a witness whose evidence it accepts. However, perfection is not required.