If one of the most difficult tasks for a hearing panel is to assess the credibility of witnesses, one of the more challenging roles for a court is to review the credibility findings of lay tribunals. In two recent cases, courts have considered credibility findings. In the cases, the courts have provided some insight as to both what they look for on such an appeal and how difficult it is to reverse credibility findings.
In Ontario College of Nurses of Ontario v. Todd, 2018 ONSC 1689, http://canlii.ca/t/hrbzz the issue was whether a nurse had slapped a patient in a psychiatric facility. As the court said, it was a “he said vs. they said” case (as the regulator’s case involved not only the patient, but a number of witnesses). The discipline panel found that the allegations had not been proved on a balance of probabilities. The College appealed on the basis that the hearing panel misapprehended some of the evidence, failed to adequately address the inconsistencies in the nurse’s evidence and failed to sufficiently explain why it did not accept the patient’s evidence.
The Court dismissed the appeal. It found that the hearing panel’s assessment of the evidence was reasonable. It had identified serious concerns about the consistency of the evidence of the key witnesses to the incident. The hearing panel had addressed the inconsistencies in the nurse’s evidence as being consistent with his not recalling the details of an ordinary day. In addition, the Court held that the assessment of the credibility of the patient (i.e., essentially that “the nature of the evidence that she was able to provide to the Panel lacked specificity, and could therefore not be heavily relied upon by the Panel”), while brief, was adequate in the circumstances. The Court found that the lack of specificity in the patient’s evidence was apparent from the hearing panel’s description of her evidence.
The second case, College of Physicians and Surgeons of Ontario v. Yaghini, 2018 ONSC 2449, http://canlii.ca/t/hrjwf, involved a “he said, she said” allegation of a male physician kissing a fifteen-year old patient while making inappropriate comments. There were no witnesses in this case. The physician appealed the finding of professional misconduct. Many of the typical challenges to credibility findings were raised, including: failing to adequately address the discrepancies in the patient’s evidence, failing to distinguish between the honesty of a witness and their reliability, and treating the discrepancies in the practitioner’s evidence more harshly than those of the witness. For each of those issues the Court found that there was reasonable support for the reasons of the panel indicating that these errors had not, in fact, been made.
In both cases it was the effort by the tribunals to provide reasons explaining why it made its credibility findings that resulted in the decisions being upheld.