Credibility: Who to Believe?

Credibility: Who to Believe? | Disinherited Vancouver Estate Litigation

Many court cases are decided on the issue of credibility. If the court does not believe one partie’s evidence then in all likelihood that party will lose.

The law relating to credibility was reviewed in Yung v Three Good Friends Property Holdings Inc. 2018 BCSC 1963.

In Yung there were three competing versions of events presented by three main parties- Messrs. Yung, Wong and Lam.

The court found Mr. Wong’s recollection of the events to be extremely poor. He said he had no memory of most key events. His poor memory and the discrepancies between his discovery evidence and is evidence at trial being that I give little weight to his evidence.

Mr. Lam was argumentative, evasive and nonresponsive to questions. His evidence was rambling and internally inconsistent, and was therefore inherently unbelievable. It was infused by extreme animosity towards Mr. Yung and his evidence was transparently self-serving.

Mr. Yung won the case. The court found his evidence to be straightforward and internally consistent. He was subjected to extended and hostile cross-examination that bordered on abusive, with accusations of deceit and fraud. He retained his composure throughout.

In Bradshaw v Stenner 2010 BC SC 1398, affirmed in the Court of Appeal 2012 BC CA 296, the trial court provided a summary of the principles governing the court’s approach to assessing the evidence where there are significantly different versions advanced by the parties:

• credibility involves an assessment of the trustworthiness of the witnesses testimony based upon the veracity or sincerity of a witness and the accuracy of the evidence that the witness provides;

• The art of assessment involves an examination of various factors such as the ability and opportunity to observe events, the firmness of memory, the ability to resist the influence of interest to modify recollection and whether the witnesses evidence harmonizes with independent evidence that has been accepted

• whether the witness changes his testimony during direct and cross-examination

• whether the testimony seems unreasonable, impossible or unlikely

• whether a witness has a motive to lie

• the demeanor of a witness generally.

The court referred to a previous Court of Appeal decision in Faryna v Chomy 1952 2 DLR 354 which stated to the affected ultimately, the validity of the evidence depends on whether it is consistent with the probabilities affecting the case as a whole and shown to be in existence at the time.

The court stated” it has been suggested that a methodology to adopt is to first consider the testimony of a witness on a standalone basis, followed by an analysis of whether the witnesses story is inherently believable. Then, if the witness testimony has survived relatively intact, the testimony should be evaluated based on the consistency with other witnesses and with documentary evidence. The testimony of non party, disinterested witnesses may provide a reliable yardstick for comparison.

Finally the court should determine which version of events is the most consistent with the preponderance of probabilities which are practical and informed person would readily recognizes reasonable in that place and in those conditions ( Overseas Investments (1986) Ltd v. Cornwall Developments LTD (1993) 12 Alts. LR 298.

Discovery on Credibility Not Allowed

Discovery on Credibility Not Allowed

The issue of credibility in estate litigation is often raised as the stories between the conflicting parties are often so different that they are hard to reconcile in any way.

One of such credibility issues that sometimes occurs is the opposing counsel asking if the opposing party has a criminal record.

It is not permitted to ask questions relating only to credibility or have documents produced for the same purpose as to allow such would encourage ” fishing expeditions”

[24] The plaintiff has referred to Sandhu (Guardian ad litem of) v. Philipow (1996), 1996 CanLII 2368 (BC SC), 24 B.C.L.R. (3d) 78, 49 C.P.C. (3d) 317 (S.C.), in which the plaintiffs sought abstracts of the defendants’ driving records for the purpose of determining whether the defendants had been convicted of any offences arising out of the accidents in question or any other offences. The application was denied because whether the defendants had been convicted was a collateral issue going only to credibility. The plaintiff also refers to Stathis v. Jones, Gable & Co., [1982] B.C.J. No. 1337 (S.C.) for the same principle: discovery on the issue of credibility is not permitted. There is no dispute with the principles set out by these cases, but they do not assist the plaintiff as the medical issue in this case relates to the reliability of his memory which is not a collateral issue here.

See also:  Roberts v. Singh et al, 2006 BCSC 906

[11] The first question before me deals with whether or not these records, as sought by the defendants, are relevant and thereby produceable when they deal only with the issue of credibility.  This issue was addressed by Master Horn in the case of Sandhu (Guardian ad liten of) v. Philipow, [1996] B.C.J. No. 1113.  In that case Master Horn was dealing with a request that the Superintendent of Motor Vehicles be compelled to furnish the plaintiffs with an abstract of the driving records of the defendants in the action.  Master Horn, at paragraph 8 of his decision says as follows:

The issue whether a witness has been convicted or not is a collateral issue which goes to credibility only (see Clarke v. Holdsworth (1967) 62 W.W.R. 1 (S.C.)).  It is well established that the credibility of a party or of a witness is not a matter in issue in an action.  The credibility of a party is not a matter which is examinable on discovery (see M.(A.) v. Ryan (1994) 1994 CanLII 6417 (BC CA), 98 B.C.L.R. (2d) 1 (B.C.C.A.); Union Bus Sales v. Dueck on Broadway Ltd. (1958) 24 W.W.R. 644 (B.C.C.A.).  The document which plaintiff’s counsel seeks from the Superintendent is not relevant if it relates to credibility only.

[12] Although Master Horn went on to consider whether or not he could compel by court order the Superintendent to do something which by statute he had discretion not to do, that in my view, in no way weakens the statement of law which is reflected in ¶ 8 of Master Horn’s reasons.

[13] Credibility is a collateral issue.  In this regard the defendants already have the evidence of the plaintiff given at his examination for discovery.  The file material sought by the defendants in their Notice of Motion is in my respectful view irrelevant and accordingly I decline to order its production.

And:  Zecher v. Josh, 2011 BCSC 311 (CanLII),

[57] Based on the evidence presented, I agree with the plaintiff that the defendants are embarking on a fishing expedition for evidence from which an attack can be made on the plaintiff’s credibility. Such evidence will not be ordered produced under Rule 7-1 as credibility is not a material fact: Roberts v.Singh 2006 BCSC 906