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Reasons - Failure to Refer to Witness

The Birkshire Group Inc. v. Wilkes (Ont CA, 2018)

In this case the Court of Appeal held that the failure of the trial judge to refer to testimony of a material witness was, in the particular facts of the case, reversible error:
[10] We disagree. Considering the record as a whole, including the fact that the trial judge reopened the case to hear the evidence of the two witnesses after determining that it could bear on the material issue of the respondents’ credibility, the trial judge’s failure to address this evidence in his reasons creates problems on appeal. Credibility played an important role in the trial, in which the central issue was the scope and terms of the home renovation contract. The trial judge rejected the evidence of the appellants on several points and he explained why he preferred the evidence of the respondents. If Mr. Derewonko’s evidence had been accepted, it would have meant that a drawing that was introduced by the respondents at trial as being contemporaneous with Birkshire’s work, was created well after the litigation had commenced. Such evidence could have had a material effect on the credibility of the respondents, and indeed on the administration of justice.

[11] Although we specifically refrain from commenting upon the credibility of the evidence led by the appellants when they re-opened their case, it was incumbent on the trial judge to at least advert to the evidence and resolve it. This is particularly true given that the trial judge had pre-determined the materiality of the evidence, acknowledging that it was sufficiently probative of credibility to justify the exercise of his discretion in favour of re-opening the case.

[12] As this court noted in Dovbush v. Mouzitchka, 2016 ONCA 381 (CanLII), 131 O.R. (3d) 474, at para. 29, “[a] trial judge owes the losing party an explanation for rejecting the evidence of a key witness or witnesses … and, while the absence of such an explanation is not necessarily dispositive, it may go a long way toward putting the reasons beyond the reach of meaningful appellate review”. Unfortunately, that is the result in the present case. In the absence of any mention of these witnesses, and having regard in particular to the potential importance of Mr. Derewonko’s evidence to the question of the respondents’ credibility, it is impossible to know whether and why the trial judge accepted or rejected the evidence or if it impacted his credibility findings.

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