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Credibility Part 2: Documentation  

The credibility of professionals, tradesmen and businesspeople in general can take a further hit by bad business practices.  Not drafting a contract or giving a written quote or estimate is at the crux of manyCredibility Part 2 trials.  One side contends that it would be, and is, normal in a project of a certain type to put into writing given the scope of the project and the price quoted, even if it was a time & materials job.  If the materials and supplies are handled in an unorganized way, the accounting fails to attribute the appropriate values of materials taken from one job to another or the record keeping of projects or accounts is incomplete, the business’s credibility can be damaged.  A contractor not furnishing detailed time sheets is a common theme in building and renovation cases.

In Parma v.Romina Pulcini 2014 the court looked at the standard practice in industry.  In Small Claims Court there is no compelled ‘disclosure’ but not producing documents before  trial that would normally be available can allow the court to make an adverse against the party not providing such documents.

“Given this background, the absence of key corroboration seriously detracted from Daniel’s credibility .  Mr.  Lachmansingh is right in asserting that Daniel produced much documentation at trial to support his evidence, but what he did not produce was the usual corroboration any trade would produce to substantiate its claim. For instance, a large part of s concerns alleged extras for labour spent by Parma in various jobs on the Carnarvon and Lloyd George properties.  These were charged by Parma, according to Daniel, at an hourly rate of $65, which is a rate he thought was reasonable.  This was the first time Parma claimed extras based on an hourly rate.  What struck me was the absence of any time sheets or other contemporaneous documents evidencing the time allegedly spent on these tasks.  These are the documents a trade normally creates when working on extras for labour paid by the hour, particularly when the contractor is often absent from the site, as Daniel asserted was the case with MJR.  The claimed hours were not even shown on the December 31, 2007 invoices for these charges.  At trial Daniel reconstructed the extras from the witness stand.  It has been held that the court can draw an adverse inference from a failure to product time sheets to corroborate a claim; 9 see Dirm Inc.  v. Bennington Construction Ltd.  2010 CarswellOnt 4171 at paragraph 111 (Ont.Sup.Crt). I draw such an adverse inference.”

In Margles v. Sica Masonry, 2011, the fact that an experienced contractor did not have time dockets and receipts normally expected was clearly a factor that put his credibility at risk.

“I further find that it would have been not onlyfoolhardy, but disastrous for Mr.  Sica to not have kept and provided every receipt and every time docket as the work progressed, if this were truly a time and materials arrangement.  ... Mr.  Sica is no neophyteHe is a very skilled tradesman.  He has been in business for 40 years.  The evidence discloses his skill.  He was under a clear and considered and completely accurate understanding that the agreement was not time and materials.  I find this is yet another ex-post facto attempt to justify the non-payment of the agreed to $12,000.00.” 

Doucett v. W.D.  Excavating 2013, is another example where late production of time sheets clearly damaged the contractor’s case.

“Nor were any time sheets presented as evidence during the 15-month course of this trial.  As well, Mr.  Tolman stated the he kept a log of how many hours the machinery was used but, at no time were those logs or copies of those logs ever presented as Exhibits to this Court.  ...  This ignores the fact that it is for the plaintiff to prove its case on a balance of probabilities.  It is not for the defendant to disprove the plaintiff’s case. The lack of records filed by the plaintiff in support of its claim seriously diminishes the strength of its case. 

In Rob Marchand Construction Ltd.  v. Scott, 2014, the production of times sheets was not allowed at trial.

No reduction was made from the contract price for the removal of the garage door installation...    ...  No time sheet was submitted to show otherwise until trial when he tried to rely on very incomplete time sheets produced very late, during the trial, and which are inconclusive in any event.  The time for production of such records was before trial, and ...”

Timesheets were used as an example here, but the principle applies to any documents normally produced in the completion of a project for that particular industry.  The ‘Industry Standard’ is common metric used by judges to determine what might be considered ‘reasonable’ in the determination of any particular issues.  Sometimes the industry standard is well-known to everyone (a sidewalk should be straight and level).  Sometimes the industry standard is not well-known and on those occasions judges can receive evidence from various parties. 

Note that the ‘industry standard’ applies to professionals in negligence/malpractice cases as well.  Contrary to some popular belief, professionals are not expected to never be ‘wrong’ per se.  Instead they are held to what would have a been a reasonable and prudent course of action in the circumstances at the time (presumably on the basis of the information that was known or reasonably should have been known at the time).  So, a mistaken prognosis and treatment received from a medical practitioner would only be culpable if it was deemed to have strayed too far from the ‘industry standard’ or what another reasonable and prudent practitioner would have done in the same situation. 

While the cause might be related to or caused by a particular incident, action or lack of action the damage to credibility of a party or witness is something that is difficult to contain.  Such damage affects the overall credibility of the witness so that on other unrelated areas of testimony the party’s veracity might be doubted where it otherwise might not have been.  Such is the nature of the trial process and why having a qualified legal professional is always recommended when faced with any trial. 

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