By Shane Marston
After completing examinations for discovery, my clients will often ask how the witnesses presented during the examinations—did they come across as credible?
Discussion of the relevance of demeanor at examinations for discovery is limited in the case law. There is a large volume of research and discussion surrounding the assessment of a witness’ credibility at trial, and for good reason.[1] As long as there have been trials, the trier of fact has had a duty to make a credibility assessment to the best of their ability when competing versions of events are not entirely borne out by the evidentiary record.
As much as credibility assessment should be as objective as possible, legal realists argue that the continued involvement of humans in the trial process means that a witness’ manner and demeanor will continue to form part of that credibility analysis.[2]
Courts implicitly endorse the continued relevance of manner and demeanor through the deference on appeal to a trial judge or jury’s findings of fact, in part given their ability to see and hear viva voce evidence rather than simply reviewing words on a transcript. This principle is also implicitly endorsed in the Rules of Civil Procedure: Rule 1.08(6)(e) cites the importance of a witness’ demeanor as a factor to be considered when determining the method of attendance for hearings; Rule 39.19 dictates that a party may, in exceptional circumstances, introduce audio or visual files with a transcript for use of the Court at trial (most often where a witness will likely not be available to provide viva voce evidence).
Examinations for discovery are the first and often the only opportunity to evaluate a litigant’s presentation as a witness before trial. The importance of counsel observing a witness’ presentation and demeanor at discoveries was discussed by Master Dash (as he then was) at the advent of video conferencing. Justice Newbould referenced Master Dash’s remarks in the decision Midland Resources Holdings Limited et al v Shtaif et al, 99 OR (3d) 550. In dismissing a motion to compel in-person examinations where video conferencing was otherwise available, Justice Newbould noted modern video conferencing addresses Master Dash’s concerns, allowing for an assessment of a witness’ credibility.[3] Justice Newbould acknowledged that counsel may gain some advantage in observing the demeanor of a witness on discovery, despite being of greater importance to the trier of fact.[4]
More recently, the subject of credibility and demeanor at discoveries was addressed by Justice Emery in the Superior Court decision Johl v. Lingard et al, 2025 ONSC 5923. A self-represented litigant moved under Rule 30.10 to compel a court reporting service to produce audio/video files from examinations for discovery. The self-represented litigant argued that the audio/video recordings showed the demeanor of the persons being examined when answering questions,[5] and that he intended to use the recordings to impeach the credibility of these witnesses at trial.[6]
Dismissing the motion, Justice Emery commented that the Courts have recently scrutinized making credibility findings on the demeanor of a witness, noting that the reliability of factual determinations based on the demeanor of a witness is less and less dependent on how a witness answers a question over what his or her actual evidence is on the point.[7] Citing the Supreme Court of Canada in R. v. S.(N.), 2012 SCC 72, Justice Emery endorsed the principle that demeanor is “but one of the elements that enters into the credibility of a witness”, with other factors including “the witness’ opportunity for knowledge, powers of observation, judgment, memory and ability to describe clearly what he or she has seen and heard”.[8]
What seems evident from the developing case law on the issue is that, while assessing credibility based on manner and demeanor is imperfect and subjective, it remains a factor in that assessment. As Marshall McLuhan famously theorized, “the medium is the message”. Through video conferencing, it is easy to ignore a witness’ presentation when focus is often divided across multiple monitors, with the witness appearing in a box off to the side of your screen. At a minimum, counsel should insist that a deponent is clearly visible on screen during their examination. When counsel anticipates that credibility will have a bearing on the ultimate issue, it may be worth insisting on in-person examinations to better gauge their impression as a witness.
Because presentation, manner and demeanor remain a part of a credibility assessment at trial, clients should expect their lawyers to observe and identify these aspects of a witness’ examination for discovery.
[1] Note that credibility is understood as the perceived veracity or truthfulness of a witness, whereas the accuracy of a witness’ evidence is reliability. A credible witness may not be reliable. As such, reliability is generally considered of paramount importance (R v. Norman, 1993 CanLII 3387 at para 47).
[2] The Ontario Court of Appeal has cautioned that demeanor is of limited value, because it can be affected by many factors, including culture, stereotypes and the pressures of a courtroom (R v. Rhayel, 2015 ONCA 377 at para 85).
[3] Midland Resources Holdings Limited et al v. Shtaif et al, 99 OR (3d) 550 at para 25.
[4] Ibid at para 27.
[5] Johl v. Lingard et al, 2025 ONSC 5923 at para 2.
[6] Ibid at para 5.
[7] Ibid at para 22.
[8] Ibid at para 24.
By Shane Marston
After completing examinations for discovery, my clients will often ask how the witnesses presented during the examinations—did they come across as credible?
Discussion of the relevance of demeanor at examinations for discovery is limited in the case law. There is a large volume of research and discussion surrounding the assessment of a witness’ credibility at trial, and for good reason.[1] As long as there have been trials, the trier of fact has had a duty to make a credibility assessment to the best of their ability when competing versions of events are not entirely borne out by the evidentiary record.
As much as credibility assessment should be as objective as possible, legal realists argue that the continued involvement of humans in the trial process means that a witness’ manner and demeanor will continue to form part of that credibility analysis.[2]
Courts implicitly endorse the continued relevance of manner and demeanor through the deference on appeal to a trial judge or jury’s findings of fact, in part given their ability to see and hear viva voce evidence rather than simply reviewing words on a transcript. This principle is also implicitly endorsed in the Rules of Civil Procedure: Rule 1.08(6)(e) cites the importance of a witness’ demeanor as a factor to be considered when determining the method of attendance for hearings; Rule 39.19 dictates that a party may, in exceptional circumstances, introduce audio or visual files with a transcript for use of the Court at trial (most often where a witness will likely not be available to provide viva voce evidence).
Examinations for discovery are the first and often the only opportunity to evaluate a litigant’s presentation as a witness before trial. The importance of counsel observing a witness’ presentation and demeanor at discoveries was discussed by Master Dash (as he then was) at the advent of video conferencing. Justice Newbould referenced Master Dash’s remarks in the decision Midland Resources Holdings Limited et al v Shtaif et al, 99 OR (3d) 550. In dismissing a motion to compel in-person examinations where video conferencing was otherwise available, Justice Newbould noted modern video conferencing addresses Master Dash’s concerns, allowing for an assessment of a witness’ credibility.[3] Justice Newbould acknowledged that counsel may gain some advantage in observing the demeanor of a witness on discovery, despite being of greater importance to the trier of fact.[4]
More recently, the subject of credibility and demeanor at discoveries was addressed by Justice Emery in the Superior Court decision Johl v. Lingard et al, 2025 ONSC 5923. A self-represented litigant moved under Rule 30.10 to compel a court reporting service to produce audio/video files from examinations for discovery. The self-represented litigant argued that the audio/video recordings showed the demeanor of the persons being examined when answering questions,[5] and that he intended to use the recordings to impeach the credibility of these witnesses at trial.[6]
Dismissing the motion, Justice Emery commented that the Courts have recently scrutinized making credibility findings on the demeanor of a witness, noting that the reliability of factual determinations based on the demeanor of a witness is less and less dependent on how a witness answers a question over what his or her actual evidence is on the point.[7] Citing the Supreme Court of Canada in R. v. S.(N.), 2012 SCC 72, Justice Emery endorsed the principle that demeanor is “but one of the elements that enters into the credibility of a witness”, with other factors including “the witness’ opportunity for knowledge, powers of observation, judgment, memory and ability to describe clearly what he or she has seen and heard”.[8]
What seems evident from the developing case law on the issue is that, while assessing credibility based on manner and demeanor is imperfect and subjective, it remains a factor in that assessment. As Marshall McLuhan famously theorized, “the medium is the message”. Through video conferencing, it is easy to ignore a witness’ presentation when focus is often divided across multiple monitors, with the witness appearing in a box off to the side of your screen. At a minimum, counsel should insist that a deponent is clearly visible on screen during their examination. When counsel anticipates that credibility will have a bearing on the ultimate issue, it may be worth insisting on in-person examinations to better gauge their impression as a witness.
Because presentation, manner and demeanor remain a part of a credibility assessment at trial, clients should expect their lawyers to observe and identify these aspects of a witness’ examination for discovery.
[1] Note that credibility is understood as the perceived veracity or truthfulness of a witness, whereas the accuracy of a witness’ evidence is reliability. A credible witness may not be reliable. As such, reliability is generally considered of paramount importance (R v. Norman, 1993 CanLII 3387 at para 47).
[2] The Ontario Court of Appeal has cautioned that demeanor is of limited value, because it can be affected by many factors, including culture, stereotypes and the pressures of a courtroom (R v. Rhayel, 2015 ONCA 377 at para 85).
[3] Midland Resources Holdings Limited et al v. Shtaif et al, 99 OR (3d) 550 at para 25.
[4] Ibid at para 27.
[5] Johl v. Lingard et al, 2025 ONSC 5923 at para 2.
[6] Ibid at para 5.
[7] Ibid at para 22.
[8] Ibid at para 24.