B.C. – The sensitive issue of adverse credibility findings and requests for accommodation – #722

Campbell v The Bloom Group, 2023 BCCA 84 raises a point of procedural fairness of interest to all decision makers:  the importance of being mindful that adverse credibility findings not be influenced by requests for witness accommodation made either for disability or analogous reasons. Here, in obiter, the Court of Appeal noted that, as the Arbitrator had not erred in his negative credibility findings based on the many other reasons he found to disbelieve the Appellant’s evidence, it was unnecessary for him to comment on the fact that he also doubted the truthfulness of the Appellant’s evidence as to her need for accommodation based on disability. Decision makers should try to avoid even the appearance of adverse credibility findings being based on generalities or accommodations sought.

In this case, the British Columbia Court of Appeal dismissed the Appellant’s appeal of an Order dismissing her petition for judicial review of a decision of a Residential Tenancy Branch Arbitrator. The Arbitrator had dismissed the Appellant’s application to cancel a Notice to End Tenancy issued by the Respondent landlord, The Bloom Group. At the outset of the hearing before the Arbitrator, the Appellant sought an adjournment on the basis, among other things, that she had a hearing disability that impacted her ability to participate in the hearing being held by teleconference. In dismissing the adjournment application, the Arbitrator expressed skepticism for a number of reasons about the truthfulness of the Appellant’s submissions and noted in his decision on the merits that the Appellant’s “credibility was already in doubt from the outset”.  

On appeal, the Appellant argued that: (1) the adverse credibility findings on the adjournment application resulted in a patently unreasonable decision by the Arbitrator on the merits of her application to cancel the Notice to End Tenancy; and (2) it was unfair for a person’s request for an accommodation due to disability to be used in an assessment of that person’s credibility even if the requested accommodation was ultimately found unnecessary, as here. 

The Court of Appeal found there was no merit to the first ground of appeal after a detailed review of the evidence and the findings of the Arbitrator.

In relation to the second ground, the Court noted that a litigant who asserts a physical disability is not insulated from having that assertion challenged or tested by another party. Nor is the decision maker prevented from addressing and ruling on the challenge. In this case, whether the claimed disability was advanced in good faith was in issue and the Arbitrator did not act unfairly in arriving at his conclusion.

The Court then stated at paragraph 52:

“[52]      I believe, however, that judges and other adjudicators should, depending on the circumstances, be cautious about allowing an adverse credibility finding to be influenced by a request for a disability-related accommodation. Some such determinations may be or may appear to be tainted by assumptions or generalizations about the types of accommodations individuals with diverse disabilities do and do not need to comfortably participate in the legal process”. 

The Court then quoted the Supreme Court of Canada in R v. R.D.S., 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484 as follows:

“[130]      When making findings of credibility it is obviously preferable for a judge to avoid making any comment that might suggest that the determination of credibility is based on generalizations rather than on the specific demonstrations of truthfulness or untrustworthiness that have come from the particular witness during the trial. It is true that judges do not have to remain passive, or to divest themselves of all their experience which assists them in their judicial fact finding. … Yet judges have wide authority and their public utterances are closely scrutinized. Neither the parties nor the informed and reasonable observer should be led to believe by the comments of the judge that decisions are indeed being made based on generalizations.”

The Court continued:

“[54]       …Having decided not to grant the appellant an adjournment and having concluded there were multiple other bases upon which to disbelieve her evidence on the substantive issues raised, there was really no need for the arbitrator to express scepticism about the appellant’s submission that she required an adjournment due to her hearing impairment.”

The Appellant analogized the situation to a request for an interpreter and cited the case Kim v. Khaw, 2014 BCSC 2221 which held at paragraph 104, “there must be some evidence, or a reasonable inference that can be drawn from evidence, that the witness’ use of the interpreter was not necessary for them to fairly participate in the trial, but rather was a deliberate intent to gain some advantage”. The Court of Appeal agreed and stated at paragraph 56:

“…For most litigants a courtroom is an unknown and daunting environment. For many non-English speaking witnesses, an interpreter may not be “necessary” but may nevertheless provide a level of comfort. So too, for example, a person with a hearing impairment may require some accommodation to abate the concern that their impairment will interfere with their ability to respond to questions or otherwise participate in the process. In both cases, decision-makers should be wary about impugning, or appearing to impugn, the credibility of the person on the basis of the accommodation sought.”

Contributor’s Note:

For other cases in various contexts that consider procedural fairness, a witness’s use of an interpreter and the impact on his or her credibility see:  R. v. Tran, [1994] 2 SCR 951Anand v. Anand, 2016 ABCA 23;   Ai Kang Yi Yuan Enterprises Corp. v 1098586 B.C. Ltd., 2022 BCSC 1416Jahanian v Jahanian, 2021 BCSC 1890Mee Hoi Bros. Company Ltd. v. Borving Investments (Canada) Ltd., 2014 BCSC 1710.