Assessing Credibility – the Legal Standard

As lawyers and workplace investigators, it is important that we have both the legal knowledge and skills necessary to assess credibility effectively and without bias. In Canada, the Courts have set the standard for this, and there are a few key decisions in Canadian law that courts and tribunals tend to rely on when dealing with credibility issues; including, Faryna v. Chorny,  1951 CanLII 252 (BC CA) to assess the credibility and reliability of witnesses, and. more recently, Health Sciences Association of Alberta v Capital Care Group Inc., 2018 CanLII 105101 (AB GAA).

Credibility from a Legal Perspective

In the Chorny decision, the British Columbia Court of Appeal describe credibility as:

“(…) 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….”

Assessing Credibility from a Legal Perspective

The British Columbia Court of Appeal in Chorny 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 relates 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), the Court noted the following 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.”

In Health Sciences Association of Alberta v Capital Care Group Inc., 2018 CanLII 105101 (AB GAA), the Arbitration Panel decision noted 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.”

Practical Considerations

The following is a non-exhaustive list of factors for consideration:

• Corroboration – Are there other statements or records that support the person’s version of events?
  
• Consistency – Is the person’s version of events consistent?
  
• Common Sense – Is the participant’s version of events objectively reasonable in consideration of the totality of the evidence?
  
• Conflict of Interest – Does the person have a bias or conflict of interest in the outcome of the investigation that will compromise his, her or their reliability?

Assessing credibility is at the core of any employment law or workplace investigation matter, and it is imperative that lawyers, HR professionals, and workplace investigators develop the skills and knowledge to maintain the highest standards in this regard.

If your organization is dealing with an internal investigation and lack these competencies, it is important to get the right advice, training, and direction.