Guidance on Avoiding Credibility Pitfalls for Investigators

Published on: April 12, 2022

The Divisional Court provides useful guidance on how investigators can avoid credibility pitfalls

One of the hardest parts of report writing for any investigator is crafting a fair and comprehensive credibility assessment. There are many credibility pitfalls that decision makers can succumb to, including overreliance on the demeanour of a witness and failure to consider deficiencies in the evidence of both parties equally. In Ontario (College of Physicians and Surgeons of Ontario) v. Kunynetz (2019 ONSC 4300), the Divisional Court provided useful guidance on how credibility blunders can impact decision making. Specifically, the Court outlined several errors that the College’s Discipline Committee made in evaluating the relative credibility of the complainant patient and respondent doctor.

One such error is related to the Committee’s reliance on gaps in the respondent’s memory to find that he was not credible. In doing so, the Committee failed to consider that – while the respondent had no specific memory of the events in question – he had given evidence as to what his usual practice would be in similar circumstances. The Court noted that the respondent had seen thousands of patients throughout his career and therefore his failure to remember a specific incident was not necessarily indicative of a lack of credibility. Accordingly, the Committee should have considered whether his evidence on his normative practice was credible.

Second, the Committee used the fact that the complainant had refreshed her memory by reviewing the transcript of an earlier interview to find that her evidence was more reliable. However, the Committee failed to mention that the respondent had also refreshed his own memory using notes. The Court noted that the Committee’s failure to treat both parties equally was an error.

Third, the Committee did not explain why it accepted and relied upon the respondent’s evidence on certain aspects of the complaint but rejected his evidence and found him not to be credible on other aspects of the complaint. The Court noted that while it was reasonable to accept a party’s evidence in part only, it was incumbent on the decision maker to explain why.

Investigators can take three important tips from this decision:

  1. Do not automatically discount evidence of normative practice when a party is unable to recall specific events. While lack of memory can be an indication that a party’s evidence is not reliable, an investigator needs to consider all the relevant circumstances before making this determination.
  2. Treat both parties equally when making a credibility assessment. If an investigator is going to consider an indicator of credibility for one party, it should be done for both.
  3. Always explain your reasoning. In particular, when investigator finds a party’s evidence to be credible on one aspect of the complaint but not others, they should be clear in their final report why this is the case.

Making clear, thorough credibility assessments can be difficult for even experienced investigators. If you would like more information on how to improve your own credibility assessments, consider attending our Assessing Credibility course.