Credibility Considerations

The main issue in Caine v. Ontario College of Teachers, 2022 ONSC 2592 (CanLII), https://canlii.ca/t/jnzv7 was the discipline panel’s consideration of the credibility of witnesses. The allegations related to allegations of sexual comments and touching of middle school students by a teacher. The teacher denied the allegations.

The Court found that the reasons for decision were adequate:

A trier is entitled to believe the complainant and to reject the denial of the respondent based on the totality of the evidence. As this court recognized in Lee, 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. 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. [footnotes omitted]

The Court also found that the hearing panel had considered the teacher’s theory that the allegations were fabricated and the product of collusion. In addition, the Court found that the panel had not based its findings on the lack of credibility of the teacher only because it rejected the fabrication theory:

The Panel considered the Appellant’s theory of the case as it was required to do. It found the students’ version of events to be more probable than that of the Appellant and then went on to consider and reject the theory that they had fabricated their evidence or colluded in their evidence. The Panel did not find that the Appellant lacked credibility because they rejected his position or legal theory. Rather, the Panel rejected his position because it found the students were more credible than him. Separate and apart from this, the Panel concluded that the students lacked any motivation to fabricate the allegations against the Appellant.

The Court rejected the argument that the hearing panel had scrutinized the students’ evidence less stringently than the teacher’s evidence.

Further, in rejecting the fabrication theory, the Court found that the hearing panel had not reversed the burden of proof through the language the panel had used. The Court clarified that rejecting a defence does not mean that the panel was requiring the registrant to disprove the allegations:

The Panel correctly stated the burden of proof on the Respondent to prove the allegations on a balance of probabilities. Where, as here, the trier expressly articulates the correct standard of proof, it is presumed that the correct standard was applied.

Despite instances in which the courts hold that credibility findings by disciplinary panels were not defensible, courts generally are deferential to such findings.

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