What is the test for assessing a witness’s body language?

I acknowledge counsel’s suggestion the former safety manager was quite bombastic. Although I might not consider it in such strong terms, the former safety manager certainly expressed frustration with counsel’s questions, and at one point indicated her questions were ridiculous and said he could not recall what he had eaten for lunch on the day the vice president made his comments. I also acknowledge there could be some difficulty with testimony via telephone. Indeed, one cannot see the witness’s body language. However, reading body language and assessing credibility on the basis of demeanour is a very imprecise task, and one that is fraught with the possibility, even likelihood, of error. For instance, the former safety manager may well have been “bombastic” merely for the reason he indicated – that counsel was challenging him on facts he did not consider to be important. Overall, I consider it much more helpful, and more appropriate, to use the test discussed in Faryna v. Chorny.

Using that test in Faryna v. Chorny, I found the former safety manager’s evidence to be consistent throughout. First, his testimony at the hearing reflected the information he had previously provided in writing in his July 3, 2012 statement. Next, his testimony was consistent with the worker’s email to him in June 2012, in which the worker asked the former safety manager whether he remembered his warning to the worker about the vice president’s comments. Specifically, the worker asked the former safety manager whether he remembered warning the worker the vice president wanted to get rid of him as soon as “wcb fines were finalized”, and the former safety manager had responded by writing that he remembered that conversation quite well, and that he would put something on paper. I find this is evidence recorded closer to the time of the events that is consistent with the former safety manager’s testimony.