While the trial judge considered and rejected the arguments the appellants had made concerning the evidence, she did not heed O'Halloran J.A.'s caution in Faryna v. Chorny. No support for the respondent's testimony could be drawn from the surrounding circumstances. It appears to me that at the very least, when the respondent's testimony stood alone, the trial judge was bound to consider, among other things, the serious inconsistencies in the respondent's evidence in determining whether the fact in issue had been proved to the standard commensurate with the allegation. In my respectful view, the trial judge did not scrutinize the evidence in the manner required and thereby erred in law.
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