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Evidence - Credibility (2)

. Taliano v. College of Physicians and Surgeons of Ontario

In Taliano v. College of Physicians and Surgeons of Ontario (Div Court, 2022) the Divisional Court 'believability':
The Distinction Between Credibility and Reliability

[46] Dr. Taliano submitted that the Committee’s reasons failed to do an adequate analysis of distinguishing between credibility and reliability and as a consequence focused too much on credibility and not enough on reliability. In considering this argument it is important to keep in mind the admonition from the Supreme Court in G.F., at para. 82, that:
Credibility findings must also be assessed in light of the presumption of the correct application of the law, particularly regarding the relationship between reliability and credibility ... However, under a functional and contextual reading of the trial reasons, appellate courts should consider not whether the trial judge specifically used the words “credibility” and “reliability” but whether the trial judge turned their mind to the relevant factors that go to the believability of the evidence in the factual context of the case, including truthfulness and accuracy concerns ... Provided trial judges turn their mind to these considerations, there is no requirement that they utter the word “reliable”.
. Caine v. Ontario College of Teachers

In Caine v. Ontario College of Teachers (Div Ct, 2022) the Divisional Court considered the weighing of credibility evidence on appeal [see the case itself for the numbered authorities]:
[32] The Supreme Court has held that there is no rule as to when inconsistencies in the evidence of a witness will cause a trier to conclude that the witness’s evidence is not credible or reliable. The trier should not consider the witness’s evidence in isolation but must look at the totality of the evidence to assess the impact of the inconsistency in that evidence on questions of credibility and reliability pertaining to the core issues in the case.[8]

....

[35] A trier is entitled to believe the complainant and to reject the denial of the respondent based on the totality of the evidence.[9] As this court recognized in Lee[10], where the standard of proof is the balance of probabilities, believing one party may in fact mean disbelieving the other. Furthermore, a trier’s failure to explain why it rejected a respondent’s plausible denial of the allegations will not render the reasons deficient, as long as the reasons generally demonstrate that where the complainant’s evidence and the respondent’s evidence conflicted, the trier accepted the complainant’s evidence.[11] This is particularly so in cases where there are no witnesses other than the member and the complainant and no corroborating evidence to tip the scales in favor of one version of events. In such circumstances, the Supreme Court held in F.H. v. McDougall:
…in civil cases in which there is conflicting testimony, the judge is deciding whether a fact occurred on a balance of probabilities. In such cases, provided the judge has not ignored evidence, finding the evidence of one party credible may well be conclusive of the issue because that evidence is inconsistent with that of the other party. In such cases, believing one party will mean explicitly or implicitly that the other party was not believed on the important issue in the case. That may be especially true where a plaintiff makes allegations that are altogether denied by the defendant as in this case.[12]
....

Issue 3: Did the Panel assess the Appellant’s credibility on a more stringent basis than the students?

[48] The Appellant claims that the Panel (a) ignored “positive indicators” of credibility in his evidence and (b) gave weight to prior consistent statements of the students when assessing their credibility.

[49] The court should not re-weigh and reassess the trial evidence. In Schoelly v. College of Massage Therapists of Ontario, the Divisional Court held that:
The fact that there is conflicting or contradictory evidence resolved in favour of one party or another does not constitute palpable and overriding error. There was evidence to support the findings of fact made by the Panel. The Panel had the opportunity to see and hear the witnesses in person. Its findings about which evidence to accept and which to reject are not subject to challenge.[14]
[50] The Panel did not ignore “positive indicators” of credibility in the Appellant’s evidence. The fact that the Appellant believes he was “consistent in his evidence with respect to all material facts”, “forthright” and “did not overstate his evidence” does not demonstrate that the Panel’s factual findings are clearly wrong and unsupported by the evidence. The Panel was entitled to prefer the students’ evidence over his evidence as noted above.

[51] The Panel is not required to demonstrate in the decision that they considered every aspect of the evidence.[15] The mere failure to mention something in reasons does not constitute an error of law.[16]

[52] The case of R. v. J.M.,[17] relied upon by the Appellant, is distinguishable as a criminal case where a different burden of proof applies. The Supreme Court has determined that R v. W.(D.),[18] which applies in criminal cases, is not an appropriate test for evaluating evidence on the balance of probabilities in civil cases.[19]

[53] The Appellant has failed to show that there was an unevenness in the Panel’s approach to the evidence. As Doherty, J.A. stated in Howe[20] the Appellant must show that it is clear that the Panel applied a different standard in assessing his evidence, compared to the assessment of the evidence of the students, either by pointing to something in the reasons or in the record:
This argument or some variation on it is common on appeals from conviction in judge alone trials where the evidence pits the word of the complainant against the denial of the accused and the result turns on the trial judge’s credibility assessments. This is a difficult argument to make successfully. It is not enough to show that a different trial judge could have reached a different credibility assessment, or that the trial judge failed to say something that he could have said in assessing the respective credibility of the complainant and the accused or that he failed to expressly set out legal principles relevant to the credibility assessment, To succeed in this kind of argument, the appellant must point to something in the reasons of the trial judge or perhaps elsewhere in the record that make it clear that the trial judge had applied different standards in assessing the evidence of the appellant and the complainant.[21]
[54] The Panel did not treat the students’ prior statements as corroborative of their evidence at the hearing. The prior statements were raised by the Appellant on cross-examination of the students.

[55] Ultimately, believing the evidence of one witness and not the other is a matter of judgment to which deference is owed in the absence of a palpable and overriding error. The Panel considered the Appellant’s evidence and found the students’ evidence more credible than that of the Appellant as it was entitled to do. This ground of appeal is dismissed.

....

[61] Sexual misconduct is one of the most significant and serious findings that the Respondent can make against a member. Given the consequences of such a finding, the Panel is required to act with care and caution in assessing and weighing all the evidence. In doing so, the Panel must ensure that the evidence is of such a quality and quantity to justify a finding of sexual misconduct. Having said that, the findings of the Panel are entitled to a high degree of deference. Reasons need not be perfect. Reasons are not inadequate because in hindsight it may be possible to say that the reasons were not as clear and comprehensive as they might have been.[24] A reviewing court should not minutely dissect the reasons of the Panel nor should it retry the case.

[62] Where credibility and reliability are at issue and the trier demonstrates that they are alive to inconsistencies but accepts the evidence of the witness nevertheless, in the absence of palpable and overriding error, there is no basis for appellate interference. Here the Panel considered all of the circumstances and found on a balance of probabilities that the allegations were made out.

[63] Issues of credibility were fully argued before the Panel. The decision makes it plain that there was a direct conflict in the testimony between the students and the Appellant about the sexual abuse and inappropriate comments and that the Panel accepted the students’ testimony in preference to that the Appellant and provided reasons for doing so. The reasons make it clear that the Panel considered the Appellant’s evidence and did not ignore evidence. The reasons reveal the path the Panel took to reach a conclusion on the matter in dispute. These findings are supported by the evidence and there is no basis to interfere.



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