Sep 28, 2020

A Court-Approved Approach to Making Defensible Credibility Findings

The Law Society of Manitoba v Young, 2018 MBCA 126 (CanLII)

In The Law Society of Manitoba v Young, 2018 MBCA 126, http://canlii.ca/t/hwbp5 Manitoba’s highest court rejected an appeal made on the basis that the hearing panel had made unsafe findings of credibility on the main disputed allegation. In upholding the credibility finding, the Court noted:

  • The panel gave detailed reasons on the credibility findings.
  • The reasons indicated that the panel had considered all of the evidence.
  • The inferences drawn from the evidence by the panel were reasonable.
  • The panel’s reasons indicated how the main prosecution’s witness was consistent with the documentary evidence.
  • The panel’s reasons addressed the inconsistencies in the main prosecution’s witness and explained why those inconsistencies did not undermine the witness’ overall credibility.
  • The panel’s reasons addressed the practitioner’s evidence and the corroborating witness called by the practitioner and explained how that evidence was inconsistent with the documentary evidence and was otherwise not credible (e.g., attempts to persuade the complainant to withdraw the complaint and, when that failed, making false statements to the regulator).

This judicial analysis gives guidance to hearing panels on the points they need to cover when dealing with credibility issues.

Courts also take a dim view of those who are unsuccessful at a hearing when raising one defence (e.g., “I am innocent”) and trying to introduce a new defence after they have been found guilty (e.g., “I had a medical condition that affected my behaviour”). The Court refused to receive fresh evidence, a psychological report, on the basis that such evidence should have been obtained and introduced at the original hearing. The Court emphasized the importance of the finality of hearings.