Original Post by Howard Levitt in the Financial Post, October 30, 2018
If Christine Blasey Ford were able to sue U. S. Supreme Court nominee Brett Kavanaugh in a Canadian court, she would assuredly lose.
Father Time spares no one, even #MeToo accusers. When she levied accusations against Justice Kavanaugh, Blasey Ford had little more than her 36-year-old memories to rely upon – a position I would not recommend to any of my firm’s clients.
Blasey Ford’s testimony is a good reminder that allegations don’t make a case. Evidence does.
As I pointed out in a previous column, aside from her own recollection, Blasey Ford could not find a witness to corroborate her story. Indeed, the contrary applied. She presented no physical or documentary evidence to the Senate to help connect the dots.
In court, oral testimony alone is seldom sufficient to carry the day. Plaintiffs are human, with fragile memories. Just realize that they often make mistakes when giving evidence at trial. When a sexual harassment claimant does not recall the specifics of an incident, including dates, times, witnesses, the order of events, and other specific details of their own allegations, she is left open to attacks on her credibility and character.
Impeaching the plaintiff’s credibility is a time-worn approach used in every trial, not a recent invention developed to undermine #MeToo accusers. That is why additional evidence, including witnesses, digital trails including text messages and emails, help to bolster a plaintiff’s story – and ensure that the plaintiff is not reliant upon her word alone.
Allegations like Blasey Ford’s are inherently prejudicial to an alleged abuser to respond to. Memories fade, witnesses die. Documents supporting the allegations don’t exist, weren’t retained or can’t be found, particularly when they precede the advent of electronic communications.
Canadian courts routinely dismiss cases if allegations are so old as to be unfair to the defendant. In the 2015 case of Premium Properties Ltd. v. Aird & Berlis, the court dismissed a negligence claim after the court found the 21-year delay was an abuse of the court’s process. That case was 15 years junior to Blasey Ford’s allegations.
In the 2009 Ontario case Berg v. Robbins, with respect to a 13-year delay, the court ruled that any delay in the prosecution of an action requires an explanation. With the absence of a satisfactory explanation, the judicial presumption was that the delay was intentional — and the case was dismissed. Blasey Ford’s allegations were 23 years more dated.
While courts will surely apply a more contextual lens to #MeToo cases, the rules of evidence remain the same. The risks of taking dated allegations to trial will continue to beleaguer the courts, cause pain to accusers and forever alter the lives of those accused.
Key points that should be considered in every #MeToo case are:
Timeliness cases brought sooner have a greater chance of success as they carry higher chances of locating evidence, witnesses and recording evidence when recollections are most fresh.
Witness co-operation Witness participation can be extensive in #MeToo cases. Contacting witnesses early in the litigation process will determine the likelihood of obtaining a witness statement and of the witnesses putting their minds to the event so as to more likely recall it later.
Digital trail Often emails, text messages and WhatsApp conversations can provide context and circumstantial evidence to support or defend any #MeToo claim. Increasingly, the outcome of cases hinge on the production of these communications in court.