The importance of adequate witness preparation: a recent case law example
Too often overlooked, the task of properly preparing a client for his or her testimony regularly has a crucial impact on the outcome of the trial. Indeed, one of the most delicate tasks for a first instance judge is to assess the credibility of the witnesses who appear before him or her, particularly when the testimony of the two parties is fundamentally contradictory.
The question then becomes: what criteria must a first instance judge evaluate, and how does he or she decide when faced with two witnesses expressing two completely different versions of the same facts? In this article, we’ll look at the applicable law, and analyze a recent decision in professional law, where the issue of credibility and reliability of witnesses sealed the fate of the case.
Applicable criteria
Although “the assessment of credibility is not an exact science”1, a list of ten criteria has been drawn up by case law to guide judges in the complex task of assessing the credibility and reliability of a witness in a civil trial:
- General integrity and intelligence of the witness
- Observation skills
- Capacity and fidelity of memory
- Accuracy of testimony
- Willingness to tell the truth in good faith
- Sincerity, frankness, prejudice
- Evasiveness or reticence of testimony
- Witness’s demeanor
- Reliability of testimony
- Compatibility of testimony with other testimony and evidence
Reliability vs. credibility
It is essential, however, not to confuse the credibility and reliability of witnesses. Whereas credibility concerns the person of a witness and his or her characteristics, such as his or her honesty, which may be reflected in his or her behavior, reliability, on the other hand, refers to the value and accuracy of the story told by the witness. Thus, a witness whose testimony on an element is not credible cannot provide reliable testimony on that same element. On the other hand, a witness’s credibility is not necessarily an indicator of the reliability of his or her testimony2. For example, a “credible” witness may sincerely believe his or her version of events to be true, even though it is not, because the witness is mistaken or has a faulty memory, for example.
These principles, although elaborated in a civil law context, are transposed to professional and disciplinary law when a disciplinary council of a professional order must decide on the guilt of one of its members following an alleged offence by way of a disciplinary complaint.
The case of Chambre de la sécurité financière v. Gibara
A recent case, Chambre de la sécurité financière v. Gibara3, illustrated the importance of credible and reliable witnesses. This is a concrete application of the criteria detailed above, and a particular case where the professional’s preparation made a real difference in the final verdict.
In this case, the Disciplinary Committee of the Chambre de la sécurité financière chose to believe the respondent’s detailed and credible version, allowing him to be acquitted.
The respondent, a financial security and group insurance and annuity advisor, was the subject of a disciplinary complaint alleging that he had caused his client to purchase segregated fund contracts that did not correspond to her needs and investor profile, thereby contravening sections 16 and 27 of the Act respecting the distribution of financial products and services.
The client and her spouse, who had been clients of the respondent since 1989, wished to reorganize their investments in order to protect themselves from their creditors, particularly in light of a civil suit filed against them in 2012. In 2015, the respondent suggested that they transfer their investments from RBC to segregated funds at BMO, which they agreed to do in 2019.
It wasn’t until November 2020, shortly after the death of her spouse, that the client filed a disciplinary complaint against the respondent, alleging that the latter had failed to inform her that the investment could not be withdrawn for seven years without penalty. Although she mentioned, during her testimony in chief, a series of incidents related to the services provided by the respondent, the disciplinary complaint was aimed at only one of these incidents.
After analyzing the reliability of all the versions heard, the Disciplinary Committee preferred the respondent’s version to that of her client, considering that her explanations were more plausible and credible, in keeping with the testimony and evidence presented.
Indeed, while the respondent provided a detailed version of all the information and explanations he provided in the context of his client’s need for liquidity, the latter claimed that no mention of the seven-year term had been made to him, despite the many hours of meetings and explanations he claimed to have spent with his clients. In the Committee’s opinion, it was illogical that only this condition had not been explained to the client.
The following passages from the decision in this case illustrate that it was all a matter of testimony in this case, since the evidence was essentially the client’s version versus that of the respondent:
[64] As in this case, we are also dealing with a question of credibility and reliability.
[65] J.G. claims that there is a total absence of information and explanation concerning the seven (7)-year term, while the respondent gives a detailed version of the explanations in the context of his client’s need for liquidity.
[66] An analysis of the reliability of all the versions heard confirms that the respondent’s version is the one to be retained, and the committee considers that J.G. received the necessary explanations and accepted the term.
[67] The complainant had to prove, by a preponderance of evidence, all the elements of the alleged offence.
[68] The Committee, in the context of the present case and after analyzing the evidence submitted, cannot conclude that the respondent caused J.G. to subscribe to contracts that did not correspond to her needs and investor profile.
[69] The respondent took his client’s needs into account and acted with honesty, loyalty, competence and professionalism.
(Written in French)
In so doing, the Committee, after analyzing the evidence submitted, could not conclude that the respondent had caused his client to take out contracts that did not correspond to her needs and investor profile. For these reasons, the Committee acquitted the respondent.
Conclusion
In conclusion, this case highlights the importance of careful preparation and appropriate legal advice when a case is based on contradictory versions. In the presence of contradictory testimony, the judge will carefully examine the plausibility of the versions, the interest of the witnesses in testifying, the absence of essential contradictions, corroboration, precise recollection and concordance of the facts.
It is in this context that the services of a lawyer may prove essential to a professional who is the subject of a disciplinary complaint, since an objective view of the case will enable the professional’s version of the facts and testimony to be adequately and solidly prepared.
Written with the collaboration of Mrs Brittany Isabelle, student.
1 Gestion immobilière Gouin c. Complexe funéraire Fortin, 2010 QCCS 1763.
2 R. v. Morrissey, (1995), 22 O.R. (3d) 514 (C.A. Ont.), p. 526.
3 Chambre de la sécurité financière v. Gibara, 2022 QCCDCSF 64.