Friday, April 5, 2013

Considering negative credibility findings made by a court in another action involving a party still dangerous

The temptation to raise negative judicial findings about a party in an unrelated case is strong but as today's decision in  
Kay v. Caverson, 2013 ONCA 220 shows, perhaps risky:

[5]          The appellant submits that the trial judge ought not to have rejected the appellant's evidence. Specifically, she argues that the trial judge erred in his interpretation of the Supreme Court of Canada's decision in British Columbia (Attorney General) v. Malik, 2011 SCC 18, [2011] 1 S.C.R. 657. We would not give effect to this submission. Assuming (without deciding) that the trial judge erred in his application of the principles in Malik, it is clear from his reasons that he would have rejected the appellant's evidence even without referring to the negative credibility findings made by Murray J. in another action involving the appellant and Julie Caverson. The trial judge's reasons show that he found the appellant's testimony to be inaccurate, inconsistent with the documentary evidence and exaggerated.

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