EVIDENCE, COSTS AND THE CREDIBILITY OF WITNESSES: A CANADIAN VIEW

This blog has discussed  issues relating to the judicial approach of  the credibility  of witnesses many times.  Some judges have, shall we say, not been backward in giving their views on the “value” of the evidence of some of the witnesses before them. However anyone interested in this issue (which should be all litigators) should read the case of The Hearing Clinic (Niagara Falls) Inc -v- Ontario Ltd, Lewis & Lewis 2014 ONAC 5831 (CanLii) a decision of Mr Justice J.W.Quinn. Colourful and compelling the judgment sets out, in considerable detail, the judge’s view of the credibility of key witnesses.

THE OPENING WORDS OF THE JUDGMENT

  1.    INTRODUCTION

[1]     Leave an untruthful man in the witness box long enough and he will reveal himself to the world. Here ends the lesson, but not the story.

[2]     The story concerns the 2006 purchase and sale of a business – specifically, a hearing clinic. How difficult could that be? Two experienced multiple-clinic owners, each represented by a lawyer and with the almost-daily (sometimes hourly) assistance of chartered accountants, put together a transaction with more loose ends than a badly knit sweater.

[3]     I have found it impossible to articulate a helpful overview of this trial. Sitting atop the evidence here is like scaling a very, very high mountain only to find that, when one reaches the summit, one is too far from everything to see anything. The best that I can do is say that the core of the case is the allegation that the individual defendants and their accountant knowingly made fraudulent misrepresentations and withheld information, such that the plaintiff overpaid for the hearing clinic.  General damages are sought. It is further alleged that the defendants intentionally committed certain acts (said to be acts of bad faith and improper conduct bordering upon fraud) that impeded the transfer of assets, constituting breach of contract, and thereby caused the plaintiff to suffer specific financial losses.

[4]     E-mails, hundreds of them, along with letters and other documents, proved to be the most reliable evidence. Without them, the truth would have been unattainable, leaving me at the mercy of witnesses and desperately self-interested litigants attempting to recall events today that took place in 2006. There are inherent evidentiary problems in asking witnesses to tell of such events. Sincerely believed memories that are innocently incorrect become more problematic for the court than do intentional lies.

[5]     The trial began, quite unremarkably, on a sunny summer day in July of 2011. Storm clouds were not long in arriving and we never saw the sun again. Counsel had estimated that the trial would take three weeks and so it was given a place on the docket with that in mind.[1]

[6]     After four weeks, the first witness, Stefan Fridriksson (“Fridriksson”), was still testifying. Six additional days were needed to complete his evidence. In total, Fridriksson sub-let the witness box for 26 days. He entered the box as an articulate professional with impressive academic credentials, displaying what appeared to be a sound and comprehensive recollection of events. When he stepped down, after more than 14 days of withering cross-examination, he was noticeably dazed, his credibility was reduced to existential confetti and he even appeared to be physically shorter than when the trial began.[2] The case for the plaintiff was leaking oil (at one point, I thought that I saw smoke) and everyone who was paying attention realized that whatever damages were at issue in the trial would be swamped by the costs tsunami that was approaching.[3]

[7]     After Fridriksson wobbled out of the witness box, the trial lasted another money-burning 46 days, for a total of 72 days, spread over three years (yes, three years).

[8]     There were 125 exhibits at trial, which is not overly burdensome except when one considers that Exhibit No. 1 consists of nine volumes and 561 documents and Exhibit No. 90 is comprised of six volumes and 129 documents.

[9]     Closing argument was in writing: an eye-glazing, bum-numbing, disc-herniating total of 662 pages (single-spaced, medium-sized font and heavily footnoted). Then there were the answers to dozens of written questions that I forwarded to counsel in the course of preparing these Reasons. It was a superb effort.

[10]   The trial was like a physical deformity that one, eventually, accepts as a permanent condition. Yet, despite everything, I will recall the experience fondly because of the unrelenting civility of counsel[4] and their unceasing mastery of the evidence, all under difficult circumstances.

VIEWS ON THE CREDIBILITY OF THE WITNESSES

     FRIDRIKSSON: HIS NATURE, CHARACTER AND CREDIBILITY

[28]   Because of the central role played by Fridriksson in the evidence of the plaintiff, he deserves his own section of these Reasons and his credibility warrants early and thorough attention. He was the maypole around which the case for the plaintiff was conducted. Most of the alleged fraudulent misrepresentations are said to have been made orally by others to Fridriksson. Unfortunately for the plaintiff, Fridriksson spent most of the trial on the wrong side of unbelievable.

[29]   Fridriksson was born in 1956. He opened his first hearing clinic in 1988. By 1998, he owned four clinics and, according to his testimony, he was “the largest single provider of hearing aids in the Province of Ontario.” In 1998, after selling hisclinics, he and his wife and children moved to Puerto Vallarta, Mexico, where they “opened a charity clinic.” During this time, Carol Klassen studied Spanish and painting. In 2002, they returned to Canada and, in 2003, Fridriksson started a hearing clinicin Fort Erie. Three years later he opened a second hearing clinic, this one in St. Catharines.

[30]   Determining credibility can be a challenge for a trial judge. We have no special powers in that realm and, wherever possible, avoid reliance upon darts, dice and Ouija boards. However, rarely, has a witness generously offered up so many reasons to be disbelieved. Fridriksson was an evidentiary gift who kept on giving. He ignored rule number one in the Litigants’ Credo: “Know thyself, because others soon will.” Enough of this preamble. Come with me now on a visit to the phantasmagorical world of Fridriksson. Pack lightly.

  1.    Is there a Doctor in the house?

[31]   The trial began with Fridriksson being addressed by his counsel as “Doctor” Fridriksson. I thought nothing of it, as he did have a doctorate in audiology. However, on Day 13 of the trial, I learned, from one of the exhibits, that, although a member of the College of Audiologists and Speech-Language Pathologists of Ontario (“CASLPO”) may list that degree after his or her name, a self-reference to “Doctor” is prohibited. The exhibit states:

Some members of [CASLPO] have successfully completed the requirements of university doctoral-degree programs that permit them to use the word ‘Doctor’ or an abbreviation thereof. For example, some members have obtained a ‘Doctorate of Audiology’ . . . [This title describes] their academic achievements and is not a designator of professional competence . . . members with a ‘Doctorate of Audiology’ may describe themselves as, for example, ‘John Doe, Doctor of Audiology, Audiologist.’

This description sets out the member’s academic qualifications, without referring to themselves as ‘Dr. Doe,’ which is prohibited.

[32]   More to the point, in correspondence and documents from CASLPO to Fridriksson, he is referred to as “Mister.” Consequently, on Day 14 of the trial, I instructed Mr. von Anrep, lead counsel for the plaintiff, to address this witness henceforth as “Mister.” Simply put, when your governing body refers to you as “Mister,” you are “Mister” in my court.

[33]   Such a little nicety is hardly determinative of anything in this case. Yet, it will be seen that allowing himself to be addressed repeatedly as “Doctor” is consistent with the nature and character of this man, as reflected in more serious credibility-based transgressions found in his evidence. Looking back, it was an evidentiary harbinger.

  1.    “Yes, I know, I’m guessing again”

[34]   The witnesses in this case were being questioned about events that happened six to seven years earlier. Accuracy of recollection was on trial and Fridriksson admitted that he was guessing in some of his testimony.

AND THERE IS MORE…

There are numerous examples throughout the (326 page  judgment).

“7. Fridriksson and his selfie notes

 A unique evidentiary feature of this case is the presence of numerous handwritten notes made by Fridriksson (selfie notes?), allegedly memorializing telephone conversations that he had with Dee Lewis and Terry Lewis and with the two accountants. My initial impression was: “Goodness, gracious, this is an organized man whose fastidious attention to detail will make my task easier.” 13 Siemens Hearing Instruments (usually referred to in the evidence as “Siemens”) was a supplier of hearing aids to the defendants and their three clinics. 2014 ONSC 5831 (CanLII) 24 The Hearing Clinic (Niagara Falls) Inc. v. 866073 Ontario Limited, et al. However, that impression faded as cross-examination revealed the self-serving fiction of the notes. There are so many instances of this fiction that it would be pointlessly redundant to deal with each one. Thus, I will select only a few representative examples.

[77] It cannot be overemphasized that these handwritten notes are the basis for the bulk of the allegations of fraudulent misrepresentation being made by the plaintiff. Their accuracy is crucial to the case for the plaintiff. It is the position of the defendants that most of the notes are pure fabrication, concocted long after the telephone calls occurred and that others simply are inaccurate, as they suffer from the exaggerations and other shortcomings prominently seen in all of the evidence from, or associated with, Fridriksson”

THE RESULT

IX. RESULT

[1491] Fraudulent misrepresentation has not been proved. All claims by the plaintiff associated with the allegations of fraudulent misrepresentation are dismissed.

[1492] Five specific claims by the plaintiff for breach of contract are allowed. They relate to the following subparagraphs in the statement of claim: 9(a) (keys); 9(g) (inventory); 9(i) (software); 9(j) (QuickBooks accounting data file); and, 9(n) (Canada Post). [1493] Damages for those five breaches are assessed at $120.20, $300.00, $1.00, $1.00 and $1.00, respectively, for a total of $423.20. [1494] All other relief sought in the statement of claim (but for costs) is dismissed.

[1495] Fridriksson has taken everyone on a hideously time-consuming and obscenely expensive journey down his private yellow brick road to the outskirts of the Emerald City where, it appears, he has a residence. It was not a worthwhile adventure.

[1496] Costs will be a challenge. I expect that they are enormous. I would not be surprised to learn that solicitor-and-client costs exceed $1 million for each side. 2014 ONSC 5831 (CanLII) 325 The Hearing Clinic (Niagara Falls) Inc. v. 866073 Ontario Limited, et al.

[1497] I will mention a few costs factors to consider, for the assistance of counsel in their negotiations: (1) Success was divided, although only modestly so; (2) This might be a case where costs should be awarded or refused on an issue-by-issue basis; (3) Is there “conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding,” as contemplated by clause 57.01(1)(e) of the Rules of Civil Procedure? (4) The case was marked by unproved allegations of fraud and other misconduct.

[1498] Early in the trial, I alerted the parties to the reputational and financial risks associated with this type of litigation. Not a word that I said registered with them. All of those risks have materialized. Once more, I caution the litigants that the issue of costs carries more of the same risks: reputational damage is repeated; and, financial obligations increase. This story is not likely to improve with a re-telling. The parties are not bringing credit to the world of audiology and hearing clinics.

[1499] Counsel shall collaborate on a mutual table of contents for the costs submissions and forward a draft copy to the trial co-ordinator, for my attention, within 60 days. Thereafter, I shall set time limits for written submissions.

[1500] By way of conclusion, I express my appreciation to all counsel for their diligence in this case. In particular, I compliment Mr. Korosis on conducting some of the most effective cross-examination that I have ever witnessed.

THE JUDGMENT ON COSTS

There is a subsequent judgment on costs which is just as interesting to read.

  1.       INTRODUCTION

[1]          We have a marvellous legal system in Ontario. Anybody is permitted to walk into a courthouse and commence a civil law suit about anything. The court will patiently provide all of the time and services reasonably (and, sometimes, unreasonably) necessary. The matter may go on interminably (and, usually, does) but our accommodating nature does not abate; our patience persists; we listen, we sit and we listen some more. However, when the law suit ends, the idioms arrive: the chickens come home to roost;[1] the jig is up;[2] the second shoe is about to drop;[3]the cat is out of the bag;[4] the fat lady sings;[5] one sows what one reaps;[6] and, here, so aptly, the cacophonous wail in the background is that of a piper, warming up and waiting to be paid[7] – the sum of $1,316,535.16, to be precise.

[2]          The costs of this action are now to be determined.”

The judge went through many issues of costs and conduct which will be familiar to UK readers and then ordered that the claimant pay the defendants’ costs and that the individuals involved in the claimant company should be jointly and severally liable for those costs.

RELATED POSTS ON WITNESS CREDIBILITY

1. Litigators must know about credibility.

2. Witness Statements and Witness Evidence: More about Credibility.

3. Which Witness will be believed?Is it all a lottery?

4. The witnesses say the other side is lying: What does the judge do?

5. Assessing the reliability of witnesses: How does the judge decide?

6.  Which witness is going to be believed? A High Court case.

7. The Mitchell case and witness evidence: credibility, strong views and reliability.

8. Witness statements and witness credibility: getting back to basics

9. Witness credibility: what factors does the Court look at?

10. That “difficult second statement”: its hardly ever going to be a hit.

11. Assessing the credibility of a witness: it is a matter of communication.

4 comments

  1. Michael Loveridge · · Reply

    This was brilliant – it took me back to the days of the late and much-lamented Lord Denning. I just wish that some of our judges could be persuaded to give judgments in such readable form.

    Thank you for brightening up my Thursday morning.

  2. Like Michael above, I just emailed a link to this around my litigation department with the title ‘The Canuck Lord Denning’. “Fridriksson has taken everyone on a hideously time-consuming and obscenely expensive journey down his private yellow brick road to the outskirts of the Emerald City where, it appears, he has a residence” is like something out of Mean Girls. Utter genius.

    This should be mandatory reading for all litigators!

  3. […] Recent posts have included Relief from sanctions refused following inadequate eDisclosure which covers the latest round in the long running (and very significant) case of Smailes v McNally (I will write about it in due course) and, for amusement as well as anything else, Evidence, costs and the credibility of witnesses: a Canadian view. […]

  4. Chris Rees · · Reply

    Fridriksson’s only competition came from Galloway, in Sky v. EDS in the Technology and Construction Court in England. The judge was more serious about it but his persistent lies gave rise to no little mirth.

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