How do you assess the credibility and reliability of participants to an investigation?
The Courts have relied upon the seminal case of Faryna v. Chorny, 1951 CanLII 252 (BC CA) to assess the credibility and reliability of witnesses. More recently in Health Sciences Association of Alberta v Capital Care Group Inc., 2018 CanLII 105101 (AB GAA), an Arbitration Panel confirmed the reliance upon this test in the course of workplace investigations.
What is credibility?
The British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA) describe credibility as follows:
“(…) Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility….”
The test to assess credibility and reliability
The British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA) described the test to assess credibility and reliability, as follows:
“The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the 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…. Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.”
The Ontario Court of Appeal also commented on credibility and reliability in R. v. Morrissey, 1995 CanLII 3498 (ON CA):
“Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness's sincerity, that is his or her willingness to speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness's testimony. The accuracy of a witness's testimony involves considerations of the witness's ability to accurately observe, recall and recount the events in issue. When one is concerned with a witness's veracity, one speaks of the witness's credibility. When one is concerned with the accuracy of a witness's testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is not credible cannot give reliable evidence on that point. The evidence of a credible, that is honest witness, may, however, still be unreliable.”
In R. v. Taylor, 2010 ONCJ 396 (CanLII), Justice Green made the following comments on credibility:
“‘Credibility’ is omnibus shorthand for a broad range of factors bearing on an assessment of the testimonial trustworthiness of witnesses. It has two generally distinct aspects or dimensions: Honest (sometimes, if confusingly, itself called “credibility”) and reliability. The first, honesty, speaks to a witness’ sincerity, candour and truthfulness in the witness box. The second, reliability, refers to a complex admixture cognitive, psychological, developmental, cultural, temporal and environmental factors that impact on the accuracy of a witness’ perception, memory and, ultimately, testimonial recitation. The evidence of even an honest witness may still be of dubious reliability.”
Most recently, an Albertan Arbitration Panel commented on credibility in Health Sciences Association of Alberta v Capital Care Group Inc., 2018 CanLII 105101 (AB GAA), stating the following:
“After noting there must be more than simply the appearance of telling the truth, the Court says the real test of credibility requires a decision-maker to put the witnesses’ story in context, subjecting it to an examination of its consistency with the existing conditions; it must be in harmony with the preponderance of the probabilities that a practical and reasonable person would recognize as reasonable in the circumstances.”
Considerations
There are a number of factors to consider when assessing the credibility and reliability of participants’ evidence. The following is a non-exhaustive list of factors for consideration:
Are there any independent witnesses that support a party’s version of events?
Is the participant’s version of events consistent? (i.e. upon re-telling the events; complaint/response vs. interview)
Is the participant’s version of events objectively reasonable in consideration of the totality of the evidence?
Did the participant distinguish between what they directly observed and what they were told?
Does the participant have any ulterior motive or axe to grind?
The credibility assessment can be a difficult and daunting process. It is particularly important in a ‘he said, she said’ scenario. If you require assistance with an investigation, please contact us.