CHAPTER 3

EVIDENCE

 

3.7 Weight or Probative Value

Administrative tribunals have the difficult task of assessing the weight, credibility and sufficiency of various elements of evidence. Frequently, the most important part of a case is determining an appellant's credibility. When considering a decision and the reasons therefore, it must be possible to verify whether there is intelligible evidence in the docket that rationally supports the tribunal's inference or conclusion.

Before determining whether the various pieces of evidence are persuasive, one must clearly understand what must be proven or shown.^{508 Citation 508} Then, one must examine the forms of evidence the parties employed to persuade the tribunal of their respective positions. The five generally recognized forms of evidence are writings, testimony, presumptions, admissions and the presentation of material things. Two of these - writings and testimony - may be used either as direct or indirect (secondary) evidence.

In certain kinds of cases, including misconduct cases,^{509 Citation 509} evidence must meet a certain level of detail. This also applies to cases where it must be shown that the claimant knowingly made a false or fraudulent statement. It is not enough to raise doubts about the claimant's credibility.^{510 Citation 510}

As stated above, to discharge the litigant's burden to satisfy the tribunal, he or she must show the existence of a fact is more probable than its non-existence, unless the law requires more convincing proof (art. 2804 C.C.Q.) art. 2804 C.C.Q.. The requisite degree of evidence is a matter of quality, not quantity. For example, testimonial evidence is not assessed in terms of the number of instances of testimony; rather, it is based on the credibility of testimony and persuasiveness. This does not mean that corroboration should be neglected, because it serves to reinforce testimony and make it more likely for the tribunal to believe it. Corroboration can be made by the testimony of another person, a writing, physical evidence, or a set of circumstances that cause the statement in respect of which corroboration is sought to be more believable.

Tribunals must also take care to know whether an element of evidence has been contradicted, and to note this in their decisions when required. This also applies to corroboration.^{511 Citation 511}

Direct evidence is generally preferred to indirect evidence.^{512 Citation 512} For example, direct testimonial evidence is better than hearsay and proof by presumption.^{513 Citation 513} But this rule is not absolute, and a tribunal may prefer highly credible indirect or secondary evidence to doubtful direct evidence.^{514 Citation 514} There have been several cases in which boards of referees had to consider writings contradicted by testimony. Generally, if there is a reason to doubt that certain written evidence is credible and the evidence is contradicted by testimony, the board should not rely on the written evidence.^{515 Citation 515} To determine the credibility to be accorded to such writings, their makers should have been heard or cross-examined,^{516 Citation 516} because indirect evidence is confronted with direct. A board may give greater credibility to a witness despite contradictory statements in the written notes of Commission officials.^{517 Citation 517} 

Boards should make "every effort to obtain direct oral evidence".^{518 Citation 518} It is not necessary to guarantee cross-examination of originators of hearsay evidence if the litigant has some other opportunity to comment and contradict that evidence.^{519 Citation 519} Proof by hearsay must always be conclusive and consistent with the admissions of the person who relates it.^{520 Citation 520} It is important to use this type of proof carefully.^{521 Citation 521}

Proof of a positive act is preferable to proof of a negative one. Generally, a person who affirms a fact must be preferred to a person who denies it if both witnesses are credible, for it is easier to forget a fact than to recall one that never was. In assessing all of the evidence, a tribunal may from time to time give more weight to testimony denying the existence of a fact.

Tribunals must always bear in mind that good faith is always presumed, unless the law expressly requires that it be proved (art. 2805 C.C.Q.) art. 2805 C.C.Q.. A witness who has testified or a person who has prepared something in writing is presumed to be acting in good faith unless the opposite is shown. Good faith does not necessarily mean credibility, however. People may be acting in the utmost good faith but not all that credible.

 

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