You are here

Use to impeaching inconsistent testimony in subsequent proceeding

Where a deponent gives contradictory testimony about the same matter in successive proceedings the court may allow the evidence from the earlier proceeding (including an examination for discovery) to be used to impeach the testimony of the deponent. In Juman v. Doucette, 2008 SCC 8 Binnie J. explained that the implied undertaking should not be used as a shield by witnesses who want to tailor their evidence in subsequent civil proceedings:
An undertaking implied by the court (or imposed by the legislature) to make civil litigation more effective should not permit a witness to play games with the administration of justice.
(Juman v. Doucette, 2008 SCC 8 at para. 41).
In Abernethy v. Ross, 1985 CanLII 550 (BCCA) the court held that it was proper for the transcripts of the defendants’ examinations for discovery from a previous action to be used to cross-examine them in the current action which was based on the same facts.  
In Hoffman v. Percheson, 2008 BCSC 1267, a foreclosure proceeding, the court permitted a discovery transcript from the defendant’s earlier divorce proceeding to be admitted where it would assist the court in resolving credibility issues:
This case turns on credibility issues. Mr. Percheson alleges that for 10 years he has paid, or has had paid on his behalf in addition to interest called for under the mortgage, an additional $1,400 per month.  He alleges those payments were made in cash. Mr. Hoffman denies receiving any such payments. Evidence given by Mr. Percheson concerning these mortgages in a prior proceeding may assist in resolving the conflicting evidence. Although the evidence was given in a wholly unrelated proceeding, the interest of justice dictates that Mr. Percheson’s sworn evidence in the earlier proceeding be admitted. His prior statements may assist the court in determining his veracity and trustworthiness. In the circumstances of this case, I grant leave to Mr. Hoffman to use Mr. Percheson’s discovery transcript. Use of the transcript is limited, however, to the portions of that transcript which relate to the Warehouse Property and mortgages placed on it.
(Hoffman v. Percheson, 2008 BCSC 1267 at para. 20).
In Siebert v. Spitters, 2009 BCSC 1307 information from the defendant’s earlier divorce proceeding was ordered producible in a subsequent divorce proceeding because there were discrepancies between what the defendant said or swore to in the two proceedings. 
This book was written by Michael Dew, a Vancouver lawyer who practices civil litigation, including representing claimants in motor vehicle accident claims, persons who have been denied insurance coverage by insurance companies, and persons dealing with builders lien issues.