Carfra Lawton LLP | Victoria BC

Status does not equate with credibility

The British Columbia Supreme Court has firmly stated that social or economic status of a witness does not equate with credibility [Nagaria v. Dhaliwal, 2018 BCSC 569]. The plaintiff in this action was a practicing neurologist who was involved in a rear-end collision for which liability was admitted.

At trial, the plaintiff’s claim for non-pecuniary damages depended heavily on his own subjective complaints, which were generally not supported by medical records or lay witnesses. The court ultimately determined that the plaintiff was not a credible witness, who had refused a prescribed treatment regime in favour of self-treatment. As a result, the plaintiff, who had sought between $60,000 and $95,000, was awarded just $19,000 in non-pecuniary damages at trial, prior to 10% reduction for a failure to mitigate, resulting in a total award of $17,100.

The plaintiff had argued that a defendant who seeks to undermine or impugn the evidence of the plaintiff must put forward “convincing evidence of deliberate falsehood.” The court rejected the submission as wholly without merit and an incorrect statement of the law. In rendering judgment, the court addressed two further specific submissions made by the plaintiff. First, that a witness might be more easily considered credible when the witness comes from the same or similar economic setting as the judge” and conversely, less credible if he “hails from a different social group.” Second, that the Court should take special care in making a credibility finding adverse to the plaintiff because he appeared from time to time as a professional expert witness. Both of these submissions were firmly rejected, noting that to give them effect would effectively negate the concept of a fair trial and replace the assessment of trustworthiness with an ill-considered ranking of witnesses by social status or occupation.

Case summary by Matthew Wehrung