Credibility and Reliability

Although credibility and reliability of a witness appear to be the same thing, they are actually quite different legal concepts.

Jung estate v Jung estate 2022 BCSC 1298 discussed the difference.

The factors to be considered when assessing credibility were summarized in Bradshaw v. Stenner, 2010 BCSC 1398 at para. 186, aff’d 2012 BCCA 296, as follows:

Credibility involves an assessment of the trustworthiness of a witness’ testimony based upon the veracity or sincerity of a witness and the accuracy of the evidence that the witness provides (Raymond v. Bosanquet (Township) (1919), 59 S.C.R. 452, 50 D.L.R. 560 (S.C.C.)). The art of assessment involves examination of various factors such as the ability and opportunity to observe events, the firmness of his memory, the ability to resist the influence of interest to lie, and the demeanour of a witness generally (Wallace v. Davis, [1926] 31 O.W.N. 202 (Ont. H.C.); Faryna v. Chorny, [1952] 2 D.L.R. 152 (B.C.C.A.) [Faryna]; R. v. S.(R.D.), [1997] 3 S.C.R. 484 at para.128 (S.C.C.)). Ultimately, the validity of the evidence depends on whether the evidence is consistent with the probabilities affecting the case as a whole and shown to be in existence at the time (Faryna at para. 356).

Credibility and reliability are separate concepts. Credibility relates to honesty whereas reliability relates to accuracy.

The starting point in a credibility assessment is to presume truthfulness; however, truthfulness and reliability are not necessarily the same: Hardychuk v. Johnstone, 2012 BCSC 1359 at para. 10.

When a witness’ evidence is clearly inaccurate “the challenge from an assessment perspective is to identify the likely reason for the inaccuracy in a cautious, balanced and contextually sensitive way”: Hardychuk at para. 10.

Using Affidavits

Rule 22-2 (12) of the Supreme Court Civil Rules [SCCR] states, “Subject to subrule (13), an affidavit must state only what a person swearing or affirming the affidavit would be permitted to state in evidence at trial.”

The law relating to the contents of affidavits is referred to in the case of Cunningham v. Slubowski, 2005 BCCA 260 at para. 2, where Justice Saunders discussed R. 51(10) under the former legislation, which is now R. 22-2(12), as follows:

Rule 51(10) of the Rules of Court requires that an affidavit containing information that is not personal information must be on information and belief. I am saying this again at the beginning of these reasons for judgment, in the hope that members of the Bar may be reminded of their obligation to put forward affidavits that are in a form that complies with the Rules.

In Barry v. Davis, 2021 BCSC 546 [Barry], counsel for the respondent had provided information to a legal assistant, who subsequently swore an affidavit containing that information.

At para. 65, Justice Forth cited para. 19 of Jamal v. Jamal, 2016 BCSC 551 for the proposition that “(s)tatements in an affidavit that are clearly not facts from personal knowledge, conclusion, or opinions are clearly not admissible at law.”

In Barry at para. 66, Forth J. also cited para. 36 of Drinkall v. Drinkall, 2016 BCSC 373 for the following proposition:

“It [is] not helpful to have legal assistants swear affidavits on information and belief from a party as to contested facts which need to be determined by the court.”

Justice Forth ultimately found that the affidavit was not admissible as it was replete with inadmissible hearsay.

Personal knowledge arises from events or occurrences which the affiant has witnessed or experienced first hand. Reading a document or being told of an event creates a situation where the affiant is relating hearsay, not personal knowledge about which a witness could testify at trial. See L.M.U. v. R.L.U., 2004 BCSC 95 at paras. 32–37.

“Without Prejudice” Communications

In Marziale v Adam 2022 BCSC 1308 the Court concluded that a “Without Prejudice” letter was inadmissible on the basis that it was protected by settlement privilege.

The general inadmissibility of communications made with the intent to settle the action is set forth at paras. 14-15 of Sable Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37 [Sable]

Rush & Tompkins confirmed that settlement privilege extends beyond documents and communications expressly designated to be “without prejudice”. In that case, a contractor settled its action against one defendant, the Greater London Council (the GLC), while maintaining it against the other defendant, the Carey contractors. The House of Lords considered whether communications made in the process of negotiating the settlement with the GLC should be admissible in the ongoing litigation with the Carey contractors. Lord Griffiths reached two conclusions of significance for this case. First, although the privilege is often referred to as the rule about quote “without prejudice” communications, those precise words are not required to invoke the privilege. What matters instead is the intent of the parties to settle the action (p. 739). Any negotiations undertaken with this purpose are inadmissible.

Lord Griffiths’ second relevant conclusion was that although most cases considering the “without prejudice” rule have dealt with the admissibility of communications once negotiations have failed, the rationale of promoting settlement is no less applicable if an agreement is actually reached. Lord Griffiths explained that a plaintiff in Rush & Tompkins’ situation would be discouraged from settling with one defendant if any admissions it made during the course of its negotiations were admissible in its claim against the other:

In such circumstances it would, I think, place a serious fetter on negotiations . . . if they knew that everything that passed between them would ultimately have to be revealed to the one obdurate litigant. [p. 744]

The breadth of the protection of without prejudice communications is demonstrated in the case of Middelkamp v. Fraser Valley Real Estate Board (1992), 96 D.L.R. (4th) 227 (B.C.C.A.) at para. 18, where Chief Justice McEachern stated:

“In my judgment this privilege protects documents and communications created for such purposes both from production to other parties to the negotiations and to strangers, and extends as well to admissibility, and whether or not a settlement is reached. This is because, as I have said, a party communicating a proposal related to a settlement, or responding to one, usually has no control over what the other side may do with such documents. Without such protection, the public interest in encouraging settlements will not be served.”

In Marziale the Letter was clearly prepared for the purpose of attempting to negotiate a settlement, which did not occur, and therefore invoked settlement privilege.

There was no express waiver of the settlement privilege following the preparation and delivery of the Letter to the petitioner.

Reconsideration of a Court Decision

The court in Re Grace Estate 2022 BCSC 1283 reconsidered it’s decision prior to entry of the order as a result of a binding series of authorities that were not argued at the hearing.

A Court is not ” functus officio” ( a task performed and therefor of no further force or authority)  (  until the court order is entered.: Dowell v. Hamper, 2019 BCSC 1592 [Dowell] at paras. 14-17. As stated by Justice Kent in Dowell at para. 17:

… [T]he summary trial judge has unfettered discretion to reconsider and even reverse a summary trial judgment that has not yet been formally entered in the registry, it is a discretion that must be exercised with restraint and one governed by an overarching consideration whether such reconsideration is in the interests of justice in the unique circumstances of the case.

Many of the cases in which the court’s discretion to reconsider a decision is invoked deal with new evidence.

The court in Grace Estate 2022 BCSC 1283 reconsidered it’s decision prior to entry of the order as a result of a binding series of authorities that were not argued at the hearing.

Henry v. North Shore Taxi (1966) Ltd., [1992] B.C.J. No. 741 (S.C.) [Henry] was a case in which the applicant applied to reopen to present further submissions of law. As Justice Fraser put it at para. 12, “Put baldly, what Mr. Ashcroft seeks to do is make submissions that my judgment was wrong in law”.

Justice Fraser referred at para. 12 to the decision of Justice Finch in Signcorp v. Vancouver (City) (1986), 9 B.C.L.R. (2d) 238 (S.C.).

In that case, Finch J. permitted the losing party, after judgment had been rendered, to make further submissions on the basis that his decision was based on a point not argued. Having heard those submissions, Finch J. reversed himself. Justice Fraser wrote that the key to Signcorp was that the legal point in issue was not before the court at the original hearing.

He referred to the decision of the Court of Appeal in Menzies v. Harlos (1989), 37 B.C.L.R. (2d) 249 (C.A.) [Menzies] at p. 253 for the following description of when a court might exercise its discretion to rehear or reconsider submissions made during the hearing of an appeal:

It is not unusual for an application to vary to be made and granted where the basis of the application is a demonstrable oversight or error in a particular aspect. An example in the area of fact is an error in calculation in relation to damages. An example in the area of law is reliance on a statute which has been repealed. It is a fundamentally different matter to allow a full re-argument of issues which have been argued and decided – to, as it were, allow a second kick at the cat. That approach seems to be widely used by many American appellate courts but has not generally been part of the tradition of courts in this country or elsewhere in the Commonwealth.
In Henry, Fraser J. declined to reopen the case.

In doing so, he stated at para. 17 that “There is a balance to be struck here between discouraging the relitigation of matters already decided and preventing miscarriages of justice. I would not rule out categorically the proposition that a party might be given leave to argue a matter after judgment which it had the opportunity to argue at the conclusion of trial.” However, the case before the court in Henry was not one in which he considered it appropriate to exercise his discretion to do so.

I am cognisant that the discretion to reconsider “should be exercised sparingly and with great care to avoid unwarranted attempts to disturb the basis for a judgment or to permit a litigant to re-establish a broken down case after discovering the effect of a judgment”: Hodgkinson v. Hodgkinson, 2006 BCCA 158 at para. 36.

As stated by Kent J. in the passage already quoted from Dowell at para. 17, what must guide the exercise of the discretion is “an overarching consideration whether such reconsideration is in the interests of justice in the unique circumstances of the case”.

The Presumption of Due Execution

 The court in Re Grace estate 2022 BCSC 1283  reconsidered its judgment prior to entry of the order and reached a different conclusion as a result of the presumption of due execution not be having been argued before the court.

The Court had mistakenly followed the reasoning of the Supreme Court of Canada in Vout v Hay without having had the benefit of the presumption of due execution  argued at the hearing.

 

The Presumption of Due Execution

The court relied heavily on the BC Court of Appeal case Yen Estate v. Chan, 2013 BCCA 423 [Yen Estate].

In that case, the Court upheld the decision of the trial judge finding that the will had been proven in solemn form: Yen Estate v. Yen-Zimmerman, 2012 BCSC 1620. As explained by the Court of Appeal at para. 12, the trial judge had relied on presumptions that were discussed in Re Laxer, [1963] 1 O.R. 343, 37 D.L.R. (2d) 192 (C.A.) [Re Laxer] and Guardhouse v. Blackburn (1866), L.R. 1 P. & D. 109 [Guardhouse].

 

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The Ontario Court of Appeal upheld the use of the presumption by the trial judge.

The Court adopted the interpretation of the Latin maxim of the presumption from the reasons of Lord Justice Lindley in Harris v. Knight (1890), 15 P.D. 170 (C.A.) at 179-80:

The maxim, “Omnia praesumuntur rite esse acta,” is an expression, in a short form, of a reasonable probability, and of the propriety in point of law of acting on such probability. The maxim expresses an inference which may reasonably be drawn when an intention to do some formal act is established; when the evidence is consistent with that intention having been carried into effect in a proper way; but when the actual observance of all due formalities can only be inferred as a matter of probability. The maxim is not wanted where such observance is proved, nor has it any place where such observance is disproved. The maxim only comes into operation where there is no proof one way or the other; but where it is more probable that what was intended to be done was done as it ought to have been done to render it valid; rather than that it was done in some other manner which would defeat the intention proved to exist, and would render what is proved to have been done of no effect.

 

At para. 25, the Court of Appeal agreed with the trial judge’s reasoning. It noted, at para. 26, that Vout supports the use of presumptions in proving a will in solemn form. It had not been necessary in Vout for the Court “to direct its mind to availability of a presumption to prove due execution of the will because there was direct evidence in that case the will had been properly executed.”

As noted at para. 27, the appellants in Yen Estate also submitted that there was no evidence that the contents of the will were read by, or brought to the attention of, the testator. They argued that, as a result, the prerequisites for the presumption that the testator knew and approved the contents of the will were not satisfied. Relying on Guardhouse as cited in Re Musgrove, [1927] P.264 at 278 (C.A.), the Court of Appeal rejected that argument. The Court stated at para. 29:

This authority of the Privy Council has stood for almost two centuries. I am not persuaded there is good reason to cast it aside. I do not believe that the statement at para. 26 of Vout v. Hay or a similar statement in Maddess v. Gidney Estate, 2009 BCCA 539 at para. 29, were intended to alter this principle because there was affirmative evidence in those cases the contents of the will had been read or explained to the testator.

Yen Estate stands for the proposition that the presumption of due execution applies where the evidence establishes that the testator signed the will in accordance with the requisite formalities. As stated at para. 30, “the testator’s execution of the will creates a rebuttable presumption that he or she had knowledge of and approved the contents of the will.” [Emphasis in original.]

Yen Estate has been followed in a number of cases, including Bhalla Estate, 2017 BCSC 1867 at para. 19 and Thom v Thom, 2016 BCSC 681 at para. 65.

. In Bhalla Estate, those challenging the validity of the will relied on the lack of evidence about interpretation services provided to the testator, who did not read or speak English. As recounted at para. 20, they argued “that despite the apparent satisfaction of the formal requirements of s. 4 of the Wills Act [R.S.B.C. 1996, c. 489], on its face there is no basis to conclude that the deceased actually knew what she was signing”. Justice Betton rejected those arguments. At para. 23, he referred to the significance of the presence of an attestation clause. At para. 25, he held that “In all the circumstances and based on the authorities provided by counsel, I am satisfied that the will was indeed duly executed in compliance with the Wills Act, and that the presumptions in respect of knowledge and approval and testamentary capacity apply subject to evidence of suspicious circumstances.”

 

The court held that it was bound by the Yen Estate, and the principles in Hansard Spruce Mills Limited (Re), [1954] 4 D.L.R. 590 (B.C.S.C.) mandate to follow Bhalla Estate.