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The Similar Fact Rule

August 30, 2021

Ontario

,

Canada

Issue

When is similar fact evidence admissible in a professional conduct or discipline hearing?

Conclusion

Comparison of similar conduct alone invites the inference that a defendant has a propensity or disposition toward certain behavior, and courts have been virtually unanimous in rejecting similar fact evidence for that purpose alone. Similar fact evidence has been considered irrelevant collateral evidence or relevant evidence excluded because of its prejudicial effect. In either case, it is to be excluded unless it can be related to an issue and admitted by exercise of judicial discretion. It is admissible only if its probative value to issues in the case outweighs its prejudice to the defendant. The similar fact rule is an exclusionary rule, and an exception to the general principle that all relevant evidence is admissible. It permits evidence of other unsavoury conduct only if it is so probative of a fact in issue as to outweigh the prejudice it causes. Emphasis has now shifted away from a category-based approach to the resolution of two broad questions: (1) whether the similar fact evidence is relevant to some other issue beyond disposition or character; and, (2) whether the probative value of the evidence outweighs its prejudicial effect. The categories of probative value are never closed. They include support of the credibility of the complainant, evidence of system, of striking similarity, and to rebut suggestions of accident. These are but examples. (Dhawan v. College of Physicians & Surgeons of N.S.)

Similar fact evidence is inadmissible if its purpose is to show propensity or disposition where its prejudicial effect outweighs its probative value. The analytical framework constructed to help judges assess the probative/prejudicial balance and to avoid the mischief in the misuses of similar fact evidence involves the following steps. The first step is to identify the issue in question. The issue in question is not the general disposition of the accused but must be relevant to some other issue beyond disposition or character. Identification of credibility as the issue in question may, unless circumscribed, risk the admission of evidence of nothing more than general disposition. In other words, the issue in question cannot simply be credibility but must be related to a component of what must be proven by the Plaintiff in order to succeed. The second step in the framework is to identify factors that connect the similar facts to the issue in question:

(1) proximity in time of the similar acts;

(2) extent to which the other acts are similar in detail to the charged conduct;

(3) number of occurrences of the similar acts;

(4) circumstances surrounding or relating to the similar acts;

(5) any distinctive feature(s) unifying the incidents;

(6) intervening events;

(7) any other factor which would tend to support or rebut the underlying unity of the similar acts.

These factors can only be assessed in light of the information that the Plaintiff seeks at discovery.

The third step in the framework is to determine whether the degree of situation-specific behaviour is sufficiently compelling to draw safely the inference sought to be drawn. (Howorth v. Danylkiw)

In College of Physicians & Surgeons of Ontario v. Mohan Moldaver J. held that in assessing the probity of common features between the similar fact evidence adduced, it had to be borne in mind that the similar fact evidence was not being advanced to establish identity. Rather, it was the doctor's position that each of the complainants had fabricated a false story against him. That being so, it would defy logic and common sense to ascribe to mere coincidence the common features described by the three complainants. In view of this, absent evidence from which it could reasonably be inferred that the similarities described by the complainants might have arisen from collusion or some other infectious means, it could hardly be doubted that such similarities could legitimately serve to enhance the credibility of each of the individual complainants.

In Dr. Noriega v The College of Physicians and Surgeons of Ontario, the College in the disciplinary hearing presented the evidence of the complainant patient Ms. X and sought to call similar fact evidence from another adolescent patient who described an allegation of sexual impropriety similar to the incident described by Ms. X. The Committee ruled that the similar fact evidence was admissible, and the Court upheld the Committee's decision. Although the evidence was admissible, it did not need to rely on the similar fact evidence with respect to the allegations of Ms. X.

In Sazant v. The College of Physicians and Surgeons though the Court found that though there were some credibility and reliability problems with each of the complainants, the Committee was reasonably entitled to use the evidence relating to all of the complainants in considering the evidence relating to each individual complainant. This was a case where the test for the admission of similar fact evidence had been met. The circumstances leading up to and surrounding each event were similar enough to make this approach appropriate. In particular, there was a pattern whereby the appellant fostered a nurturing relationship with a vulnerable boy, and in each case the alleged misconduct involved being tied to the bed with ropes, a scenario that is distinctive and unlikely to be attributable to coincidence.

In Kitchener (City) v. Kitchener Professional Fire Fighters Association there was a controversy between the parties on the admissibility of supposed “similar fact evidence” respecting prior incidents of alleged improper conduct by the Grievor towards female employees, none of which resulted in discipline to the Grievor, that was intended to demonstrate a general pattern of offensive behaviour by the Grievor directed to women. Evidence of past encounters demonstrating what the Grievor knew or ought to have known about the acceptable standards of conduct for a captain in the fire department was admissible and was to be given appropriate weight along with all of the other evidence.

Law

In Dhawan v. College of Physicians & Surgeons of N.S., 1998 NSCA 83 (CanLII) Chipman J. A. wrote for the Court of Appeal that comparison of similar conduct alone invites the inference that a defendant has a propensity or disposition toward certain behavior, and courts have been virtually unanimous in rejecting similar fact evidence for that purpose alone. Similar fact evidence has been considered irrelevant collateral evidence or relevant evidence excluded because of its prejudicial effect. In either case, it is to be excluded unless it can be related to an issue and admitted by exercise of judicial discretion. It is admissible only if its probative value to issues in the case outweighs its prejudice to the defendant. The general rule of evidence which prohibits a party from adducing evidence of bad character of an opposite party operates to exclude evidence of the accused's disposition or propensity to commit crimes, or evidence of specific instances of misconduct on other occasions. The similar fact rule is an exclusionary rule, and an exception to the general principle that all relevant evidence is admissible. It permits evidence of other unsavoury conduct only if it is so probative of a fact in issue as to outweigh the prejudice it causes. Emphasis has now shifted away from a category-based approach to the resolution of two broad questions: (1) whether the similar fact evidence is relevant to some other issue beyond disposition or character; and, (2) whether the probative value of the evidence outweighs its prejudicial effect. The categories of probative value are never closed. They include support of the credibility of the complainant, evidence of system, of striking similarity, and to rebut suggestions of accident. These are but examples:

The hearing took place over eight days in November and was adjourned until February, 1997. At the resumption of the hearing, after the College had already closed its case and the appellant had opened his case with his own testimony and that of two experts, counsel for the College made a motion to reopen its case based on evidence just recently obtained. This consisted of similar fact evidence of L.C., a former patient of the appellant and her general practitioner, Dr. M.C. Counsel for the College advised the Committee that it was the College's intention, should the Committee exercise its discretion to permit it, to reopen its case to call these two witnesses to give similar fact evidence.

[...]

With respect, comparison of similar conduct alone invites the inference that a defendant has a propensity or disposition toward certain behavior, and courts have been virtually unanimous in rejecting similar fact evidence for that purpose alone. Similar fact evidence has been considered irrelevant collateral evidence or relevant evidence excluded because of its prejudicial effect. In either case, it is to be excluded unless it can be related to an issue and admitted by exercise of judicial discretion. It is admissible only if its probative value to issues in the case outweighs its prejudice to the defendant. If [name of business changed] had remained a defendant, similar fact evidence might have been admissible on the issue of corporate knowledge. Dr. N.M’s. denial might have been such an issue, but if the Chairman directed his mind to it he did not make that clear. He fails to relate the similar fact evidence to an issue which might have justified its admission. He states no basis for the exercise of his discretion admitting it other than his remark quoted above, which does not reflect the principles established by the cases. There is nothing in his treatment of the evidence of S.F. either in the transcript or in his decision to make it appear that he did not treat it as evidence of disposition or propensity.

Sopinka and Lederman in The Law of Evidence in Civil Cases introduce the topic with the following paragraph:

"Evidence of similar acts is considered collateral, and therefore irrelevant, unless some special nexus between the fact in issue and the evidence tendered is shown, which creates a relationship beyond mere similarity. General similarity is not sufficient."

[...]

The seminal case dealing with similar fact evidence in criminal cases is Makin v. The Attorney-General New South Wales, [1894] A.C. 57. There Lord Herschell made the oft quoted two pronged statement at p. 65:

. . . It is undoubtedly not competent for the prosecution to adduce evidence tending to shew that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence adduced tends to shew the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused. The statement of these general principles is easy, but it is obvious that it may often be very difficult to draw the line and to decide whether a particular piece of evidence is on the one side or the other.

Thus the general rule of evidence which prohibits a party from adducing evidence of bad character of an opposite party operates to exclude evidence of the accused's disposition or propensity to commit crimes, or evidence of specific instances of misconduct on other occasions. The similar fact rule is an exclusionary rule, and an exception to the general principle that all relevant evidence is admissible. It permits evidence of other unsavoury conduct only if it is so probative of a fact in issue as to outweigh the prejudice it causes: R. v. Robertson (1987), 1987 CanLII 61 (SCC), 33 C.C.C. (3d) 481 (S.C.C.).

The development of the similar fact rule in Canada subsequent to Makin, supra, and the decision of The House of Lords in D.P.P. v. Boardman (1974), 3 All. E. R. 887 can be traced in such cases as Guay v. R. (1978), 1978 CanLII 148 (SCC), 89 D. L. R. (3d) 532 (S. C. C.); R. v. Green, [1988] 1 S. C. R. (228; R. v. Robertson, supra,; R. v. D. (L.E.) (1989), 1989 CanLII 74 (SCC), 50 C. C. C. (3d) 142 (S.C.C.); R. v. B. (C.R.) (1990), 1990 CanLII 142 (SCC), 55 C.C.C. (3d) 1 (S.C.C.); R. v. C. (M.H.) (1991), 1991 CanLII 94 (SCC), 63 C.C.C. (3d) 385 (S.C.C.); R. v. B.(F.F.), [1993] 1 S.C.R. 698; and R. v. S.G.G., 1997 CanLII 311 (SCC), [1997] 2 S.C. R. 716.

Emphasis has now shifted away from a category-based approach to the resolution of two broad questions: (1) whether the similar fact evidence is relevant to some other issue beyond disposition or character; and, (2) whether the probative value of the evidence outweighs its prejudicial effect. See R. v. B.(F.F.) (supra) at p. 731.

The categories of probative value are never closed. They include support of the credibility of the complainant, evidence of system, of striking similarity, and to rebut suggestions of accident. These are but examples.

The prejudicial effect results from the likelihood that the evidence will induce the trier of fact to think of the accused as a bad person with the propensity to commit an act such as that in issue. It does not arise alone from the fact that the evidence may strongly tend to implicate the accused. In S.G.G., supra, (1997) 1997 CanLII 311 (SCC), S.C.J. No. 70 at para 100), McLachlin, J. in dissent said:

"Prejudice", for the purposes of this inquiry, is used in the legal, procedural sense. The fact that the evidence tendered may be powerful evidence for the prosecution does not lead to a conclusion of prejudice. The inquiry into prejudice focuses not on the effect the evidence may have on the outcome of the trial, but on its effect on the accused's right to make full answer and defence. The question is not whether the evidence may tend to convict the accused, but whether it is likely to convict him unjustly. The just or fair trial is one which gets at the truth, while respecting the fundamental right of the accused to make full answer and defence.

[...]

In civil cases, the concern respecting the danger of the case turning on propensity is not so great. The same general rule applies, however. The difference from criminal cases is illustrated in the following passage from the decision of Lord Denning in Mood Music Publishing Co. v. DeWolfe Ltd. (1976), 1 All E.R. 763 (C.A.) at p. 766:

The criminal courts have been very careful not to admit such [similar fact] evidence unless its probative value is so strong that it should be received in the interests of justice: and its admission will not operate unfairly to the accused. In civil cases the courts have followed a similar line but have not been so chary of admitting it. In civil cases the courts will admit evidence of similar facts if it is logically probative, that is, if it is logically relevant in determining the matter which is in issue; provided that it is not oppressive or unfair to the other side; and also that the other side has fair notice of it and is able to deal with it.

As Sopinka, Lederman and Bryant, Law of Evidence in Canada points out, Lord Denning brings into play notions of oppression and unfairness, suggesting more flexibility of the rule in civil cases.

[...]

In Bartashunas v. Psychology Examiners (1992), O.J. No. 1845 (Ont. Div.Ct.), the credibility of the complainants and the professional was the main issue. In dismissing the appeal from the findings of a disciplinary tribunal, the court said:

Striking similarity is no longer a prerequisite of admissibility but simply a factor in forming the degree of probative value of evidence proffered as similar fact...

[...]

It is in our view clear that the admission of similar fact evidence involves an exercise of discretion by the tribunal which must initially determine between the probative value and prejudicial effect of the proffered evidence. The tribunal in this case exercised its discretion upon the proper principles and their decision is not to be lightly interfered with by an appellate court even if we may have reached a different decision or concluded this to be a borderline case...

In College of Physicians & Surgeons of Ontario v. Mohan, 1993 CanLII 8626 (ON SC) Moldaver J. held that in assessing the probity of common features between the similar fact evidence adduced, it had to be borne in mind that the similar fact evidence was not being advanced to establish identity. Rather, it was the doctor's position that each of the complainants had fabricated a false story against him. That being so, it would defy logic and common sense to ascribe to mere coincidence the common features described by the three complainants. In view of this, absent evidence from which it could reasonably be inferred that the similarities described by the complainants might have arisen from collusion or some other infectious means, it could hardly be doubted that such similarities could legitimately serve to enhance the credibility of each of the individual complainants:

In assessing the probity of these common features, it must be borne in mind that the similar fact evidence was not being advanced to establish identity. Nor was it Dr. Mohan's contention that the vaginal examinations were medically appropriate. Had either of these defences been raised, the common features earlier mentioned may not have been sufficiently cogent to warrant the drawing of a legitimate inference designed to rebut either such defence.

But here, it was Dr. Mohan's position that each of the complainants had fabricated a false story against him. That being so, it would defy logic and common sense to ascribe to mere coincidence the common features described by the three complainants.

In view of this, absent evidence from which it could reasonably be inferred that the similarities described by the complainants might have arisen from collusion or some other infectious means, it can hardly be doubted that such similarities could legitimately serve to enhance the credibility of each of the individual complainants: see R. v. B. (C.R.), 1990 CanLII 142 (SCC), [1990] 1 S.C.R. 717 at pp. 738-39, 55 C.C.C. (3d) 1 at pp. 27-28, per McLachlin J. for the majority; College of Physicians & Surgeons (Ontario) v. K. (1987), 1987 CanLII 4256 (ON CA), 59 O.R. (2d) 1, 36 D.L.R. (4th) 707 (C.A.).

In Dr. Noriega v The College of Physicians and Surgeons of Ontario, 2016 ONSC 924 (CanLII), the College in the disciplinary hearing presented the evidence of the complainant patient Ms. X and sought to call similar fact evidence from another adolescent patient who described an allegation of sexual impropriety similar to the incident described by Ms. X. The Committee ruled that the similar fact evidence was admissible, and the Court upheld the Committee's decision. Although the evidence was admissible, it did not need to rely on the similar fact evidence with respect to the allegations of Ms. X:

[22] In this proceeding, the College presented the evidence of Ms. X and sought to call similar fact evidence from another adolescent patient who described an allegation of sexual impropriety similar to the incident described by Ms. X.

[23] The admissibility of the similar fact evidence was vigorously contested. An argument advanced for the non-admissibility of this evidence was the lengthy gap in time between the two allegations. Ms. X alleges the incident occurred in 1979, whereas the similar fact incident is alleged to have taken place 23 years later. There were striking similarities in the incidents. As noted in the Decision, both allegations include clitoral stimulation of a mature adolescent female during a routine examination with no one else present in the room. There was no issue of collusion, as the two women did not know each other.

[24] The Committee ruled that the similar fact evidence was admissible, with reasons to follow. The Decision outlines, in detail, the reasons for admitting the similar fact evidence.

[25] In the Decision, the Committee concluded that although this evidence was admissible, it did not need to rely on the similar fact evidence with respect to the allegations of Ms. X. Her evidence alone was sufficient to underpin their conclusions that the College had met the burden of proof that the allegations took place. The Decision then confirms that if the similar fact evidence was considered, it supports the conclusions reached with respect to the allegations of Ms. X.

[26] The Appellant does not appeal the ruling in the Decision that the similar fact evidence was admissible.

[27] The Appellant challenges how the similar fact evidence was treated, and the adequacy of the reasons. I will return to this issue when I consider the third ground of appeal.

[...]

[111] After outlining why it was not necessary to rely on the similar fact evidence, the Committee summarized its conclusions on the credibility of Ms. X at paras 91-92:

The Committee finds that, with respect to the central issue, Ms X was credible. Her recollection of the sexual activity itself was clear, detailed, and consistently stated in her testimony, despite that these events occurred some 36 years ago.

The most compelling aspects of Ms X’s testimony were her detailed description of the sexual acts perpetrated on her by Dr. Noriega, her stated conviction that she would never return to see him again after these events occurred, and her decision to keep a prescription for birth control pills with Dr. Noriega’s name on it as proof that she had seen him at the material time, on the assumption that this would be useful in case she decided to come forward with her allegations.

In Howorth v. Danylkiw, 2009 CanLII 50226 (ON SC) Lauwers J. held that similar fact evidence is inadmissible if its purpose is to show propensity or disposition where its prejudicial effect outweighs its probative value. The analytical framework constructed to help judges assess the probative/prejudicial balance and to avoid the mischief in the misuses of similar fact evidence involves the following steps. The first step is to identify the issue in question. The issue in question is not the general disposition of the accused but must be relevant to some other issue beyond disposition or character. Identification of credibility as the issue in question may, unless circumscribed, risk the admission of evidence of nothing more than general disposition. In other words, the issue in question cannot simply be credibility but must be related to a component of what must be proven by the Plaintiff in order to succeed. The second step in the framework is to identify factors that connect the similar facts to the issue in question. These factors can only be assessed in light of the information that the Plaintiff seeks at discovery. The third step in the framework is to determine whether the degree of situation-specific behaviour is sufficiently compelling to draw safely the inference sought to be drawn:

Similar Fact Evidence at Discovery

[25] The basic difference or conflict between the two groups of cases relates to similar fact evidence. In the first group, the evidence was allowed to be explored in discovery. In the second group, evidence it was not allowed on the basis that such evidence goes to credibility and therefore is not the proper subject of discovery questions under rule 31.06(1) (b). Is similar fact evidence only about credibility or can it play a probative role in proving the facts in issue? The weight of the law is that such evidence is admissible if its probative value exceeds its prejudicial effect; it is not just about credibility.

[26] Similar fact evidence is inadmissible if its purpose is to show propensity or disposition where its prejudicial effect outweighs its probative value. As the Supreme Court of Canada said in R. v. Handy 2002 SCC 56 (CanLII), [2002] S.C.J. No. 57 per Binnie J. at para 31: “The danger is that the jury might be confused by the multiplicity of incidents and put more weight than is logically justified on the ex-wife's testimony ("reasoning prejudice") or by convicting based on bad personhood ("moral prejudice") (internal citations omitted).” The exception to the general exclusionary rule is narrow, being where, “Probative value exceeds prejudice, because the force of similar circumstances defies coincidence or other innocent explanation.(para 47)”

[27] The Court recognized that the use of similar fact evidence involves “propensity reasoning” which is usually unacceptable. But at paragraph 68 Binnie J. noted that “... propensity reasoning in and of itself is not prohibited. Indeed, it is usually inevitable, given the nature of the evidence and the reason for its admission...It is propensity reasoning that is based solely on the general bad character of the accused, as revealed through this evidence of discreditable conduct, which is prohibited.”

[28] Binnie J. constructed an analytical framework to help judges assess the probative/prejudicial balance and to avoid the mischief in the misuses of similar fact evidence. The first step is to identify the “issue in question,” which is described as” an important control”. The “issue in question” is not the “general disposition of the accused” but must be “relevant to some other issue beyond disposition or character” (para 70). Indeed, as he noted: “Anything that blackens the character of an accused may, as a by-product, enhance the credibility of a complainant. Identification of credibility as the "issue in question" may, unless circumscribed, risk the admission of evidence of nothing more than general disposition ("bad personhood") (para 116).” In other words, the issue in question cannot simply be credibility but must be related to a component of what must be proven by the Plaintiff in order to succeed. In Handy, the issue in question was “the consent component of the actus reus and in relation to that issue the respondent’s alleged propensity to refuse to take no for an answer (para 120).”

[29] In this case there are a few issues in question where the similar fact evidence might come into play. The first is: did Ms. Danylkiw have a propensity to harass fellow employees? To paraphrase Handy: the issue in question is whether Ms. Danylkiw harassed the Plaintiff and in relation to that issue, Ms. Danylkiw’s alleged propensity to harass fellow employees. Such a propensity if shown would make it more rather than less likely that the plaintiff’s harassment complaint was true, so that the existence of a propensity is probative. The second is: was Ms. Danylkiw’s propensity, if any, known to Toronto Airways? The third and related issue in question is: did Toronto Airways enforce its harassment policy selectively, preferring to shelter Ms. Danylkiw? The Plaintiff is seeking information related to these issues in question since one of the purposes of discovery is to obtain evidence of assistance to one’s case.

[30] The second step in the Handy framework is to identify factors that connect the similar facts to the issue in question. The Court prescribed a list of possibly relevant factors at para 82:

(1) proximity in time of the similar acts;

(2) extent to which the other acts are similar in detail to the charged conduct;

(3) number of occurrences of the similar acts;

(4) circumstances surrounding or relating to the similar acts;

(5) any distinctive feature(s) unifying the incidents;

(6) intervening events;

(7) any other factor which would tend to support or rebut the underlying unity of the similar acts.

These factors can only be assessed in light of the information that the Plaintiff seeks at discovery.

[31] The third step in the Handy framework is to determine whether the degree of “situation-specific behaviour” is “sufficiently compelling to draw safely the inference” sought to be drawn (para 89-91). In this case, this assessment can only occur in the light of the information that the Plaintiff seeks at discovery.

In Sazant v. The College of Physicians and Surgeon, 2011 ONSC 323 (CanLII) though the Court found that though there were some credibility and reliability problems with each of the complainants, the Committee was reasonably entitled to use the evidence relating to all of the complainants in considering the evidence relating to each individual complainant. This was a case where the test for the admission of similar fact evidence had been met. The circumstances leading up to and surrounding each event were similar enough to make this approach appropriate. In particular, there was a pattern whereby the appellant fostered a nurturing relationship with a vulnerable boy, and in each case the alleged misconduct involved being tied to the bed with ropes, a scenario that is distinctive and unlikely to be attributable to coincidence:

[230] The appellant submits that the Committee misapprehended the evidence, failed to consider relevant defence evidence, applied a “double standard” in its credibility assessments and erred in its approach to similar fact evidence.

[...]

[255] Thus, while we agree that there are some credibility and reliability problems with each of the complainants, we find that the Committee was reasonably entitled to deal with the problems in the way that they did, and the Committee was also entitled to use the evidence relating to all of the complainants in considering the evidence relating to each individual complainant. In other words, contrary to the submissions of the appellant, this was a case where the test for the admission of similar fact evidence had been met. The circumstances leading up to and surrounding each event were similar enough to make this approach appropriate. In particular, there was a pattern whereby the appellant fostered a nurturing relationship with a vulnerable boy, and in each case the alleged misconduct involved being tied to the bed with ropes, a scenario that is distinctive and unlikely to be attributable to coincidence.

In Kitchener (City) v. Kitchener Professional Fire Fighters Association, 2008 CanLII 1830 (ON LA) there was a controversy between the parties on the admissibility of supposed “similar fact evidence” respecting prior incidents of alleged improper conduct by the Grievor towards female employees, none of which resulted in discipline to the Grievor, that was intended to demonstrate a general pattern of offensive behaviour by the Grievor directed to women. Evidence of past encounters demonstrating what the Grievor knew or ought to have known about the acceptable standards of conduct for a captain in the fire department was admissible and was to be given appropriate weight along with all of the other evidence:

[15] There was a controversy between the parties on the admissibility of supposed “similar fact evidence” respecting prior incidents of alleged improper conduct by the Grievor towards female employees, none of which resulted in discipline to the Grievor, that was intended to demonstrate a general pattern of offensive behaviour by the Grievor directed to women. I upheld the Association’s objection to the admissibility of such evidence for substantially the same reasons stated in an earlier interim award between these parties where I denied a request by the Association to call evidence rebutting testimony given by the Complainant on collateral matters (namely, an alleged domestic dispute) that was supposed to demonstrate her propensity to lie to people in authority: see Re Kitchener (City) and Kitchener Professional Fire Fighters Assn. (Waganka) (2006), 154 L.A.C. (4th) 228 (Luborsky). However, in doing so I also ruled that collateral evidence was admissible subject to the collateral evidence rule (as described in the interim award) and that evidence of past encounters demonstrating what the Grievor knew or ought to have known about the acceptable standards of conduct for a captain in the fire department would also be admissible and given appropriate weight along with all of the other evidence. (I note parenthetically the Complainant was cross-examined extensively on the collateral event of a personal domestic dispute from which I could discern no reason to question the veracity of her testimony on the matters relevant before me).

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