WHEN THE TRUTH IS HARD TO SPEAK

Asking the Court for Judgment and getting what you wish for! By Michael Thiele

In courtrooms around the country Justices are called upon to decide between competing versions of "fact" that the different parties and witnesses are swearing is the truth. One can only imagine how difficult a task this is when the consequences of choosing one version of fact over another has broad financial and social implications on the party whose version of the truth is not accepted. When the choice is difficult and the truth lies somewhere in the middle and the discrepancies in evidence can be chalked up to subjective perceptions the Court's findings are often expressed in tempered language with the evidence of some parties and witnesses being "preferred". In "preferring" some evidence over the competing contrary evidence there is of course an implication about the credibility and veracity of that other party or witness. The fact of there being an implication is a necessary consequence of the Justice having to decide what the true facts of the dispute are.

What then about cases where credibility, weighing the evidence, and deciding what is "true" is not a difficult task. What of the witness or party that is clearly challenged when it comes to the truth? How may a Court express its views of the incredible witness? Cases of this sort may lead to rather colourful language in the reasons provided by the Court. A recent example of such colourful language arises in the case of Wojnarowski v. Bomar Alarms Ltd. 100 O.R. (3d) 288.

What stood to be a rather dry case about promissory notes clearly became a lively matter for the Court as the opening paragraph indicates as follows: "In this action, the parties sought to shed the cloak of criminality that they wore comfortably for more than a decade, only to find the vestments of the virtuous to be ill-fitting." Later on an after excluding two witnesses from the comment to follow the Court stated: " With the exception of MacDonald and White, I have approached the credibility of the witnesses with apprehension and caution, for they are people who are well acquainted with falsehoods. After more than ten years of casual criminality, why should I think that they found God in my courtroom?" Later still, in assessing the credibility of the witness Mary the Court states: " There are numerous other examples of Mary's contradictory and otherwise vague evidence as to the uses made of the lines of credit. I am left wiht a mash of transactions described by a tainted witness who appeared to be composing her ansewrs on the fly", and again " I suspect that, of the many line of credit transactions, some were a smokescreen for instances of personal enrichment: Mary had mastered the methods of financial obfuscation."

The manner of expression leaves no doubt of the Court's view of the parties involved in this case. The colourful language makes for entertaining reading and surely the reasons have given the parties great pause for thought. That, however, is not all. The Court's findings are a reminder that telling the truth, behaving honourably, and being upstanding are important values that a Court and hence our community demands of its members. Casual dishonesty is not without consequences and the Court reminds us in this case that you can not act in this way with impunity and expect there to be no consequences.

The consequences of the conduct in this case are revealed in the dismissal of the claims. Further though, and perhaps an unanticipate outcome for the parties is the last paragraph of the Judgment which provided: "A copy of these reasons will be forwarded to the Crown Attorney at St. Catherines for whatever attention they may merit".