A Court-Approved Approach to Making Defensible Credibility Findings

In The Law Society of Manitoba v Young, 2018 MBCA 126, http://canlii.ca/t/hwbp5 Manitoba’s highest court rejected an appeal made on the basis that the hearing panel had made unsafe findings of credibility on the main disputed allegation. In upholding the credibility finding, the Court noted:

  • The panel gave detailed reasons on the credibility findings.
  • The reasons indicated that the panel had considered all of the evidence.
  • The inferences drawn from the evidence by the panel were reasonable.
  • The panel’s reasons indicated how the main prosecution’s witness was consistent with the documentary evidence.
  • The panel’s reasons addressed the inconsistencies in the main prosecution’s witness and explained why those inconsistencies did not undermine the witness’ overall credibility.
  • The panel’s reasons addressed the practitioner’s evidence and the corroborating witness called by the practitioner and explained how that evidence was inconsistent with the documentary evidence and was otherwise not credible (e.g., attempts to persuade the complainant to withdraw the complaint and, when that failed, making false statements to the regulator).

This judicial analysis gives guidance to hearing panels on the points they need to cover when dealing with credibility issues.

Courts also take a dim view of those who are unsuccessful at a hearing when raising one defence (e.g., “I am innocent”) and trying to introduce a new defence after they have been found guilty (e.g., “I had a medical condition that affected my behaviour”). The Court refused to receive fresh evidence, a psychological report, on the basis that such evidence should have been obtained and introduced at the original hearing. The Court emphasized the importance of the finality of hearings.

Please note Steinecke Maciura LeBlanc is putting on a workshop for tribunal members on how to assess credibility and write reasons on February 21, 2019. See: http://www.sml-law.com/resources/upcoming-events/ for more information.

More Posts

Regulation by Objectives

The Interprofessional Council of Quebec has released a major study on the overarching approach to regulating professions. It is written by professors Popescu and Issalys

Sanctioning Sparseness

It is, unfortunately, not uncommon for some applicants to use the protected title and begin practising before the application for registration is completed. Regulators struggle

Risky Resolutions

Negotiated resolutions are generally considered a good thing, including in the discipline hearing context. They generate an almost certain outcome, without the risk of unpredictable

Reviewing Reinstatement Requests

Revoked registrants can usually apply for reinstatement after a specified period of time. While the criteria for reinstatement vary, usually one issue is whether the