In the context of an injury claim, a prior inconsistent statement occurs when a witness testifying at trial makes a statement that is not consistent with a statement that the witness previously made, whether in writing or during an Examination for Discovery. Opposing counsel can attempt to discredit the witness when this occurs.
In Tran v. Kin Le Holdings Ltd,, the Plaintiff was injured when she fell. After the incident, a witness provided Plaintiff‘s counsel with a statement as to what was observed. Years later, at trial, this same witness testified, however the evidence given was contradictory to the previous statement given, and was unfavorable to the Plaintiff‘s case. Counsel for the Plaintiff argued that the document did not need to be listed on the Plaintiff‘s List of Documents, as it went to credibility, which was a collateral matter. The Court disagreed, stating that prior inconsistent statements can indeed be used to prove or disprove a material fact.
[13] Counsel submits, first, that a prior inconsistent statement is not a document that could be used to prove or disprove a material fact. It is a document relevant only to credibility. Therefore, it is not required to be listed. Secondly, counsel submits that until the contradictory evidence was given by the witness, counsel had no intention of using the document at trial. The use of the document has only become necessary because of the surprise in the evidence that was given.
[14] I turn to deal with this point. I must say that I am sceptical that the plaintiff‘s argument is correct. It is common ground that the document here is covered by litigation privilege, which necessarily ties it into relevant issues in the litigation. Rule 7‑1(6) governs the listing of privileged documents. It is not obvious to me from the wording of the rule that the scope of the obligation set out in Rule 7‑1(6) is qualified or limited by Rule 7‑1(1).
[15] More importantly, however, prior inconsistent statements can be used, in my view, to prove or disprove material facts. Depending on how a witness responds to the statement when put to the witness, the effect of the use of the statement may well go beyond merely affecting credibility. The witness may adopt the content of the statement insofar as it relates to material facts; in that sense, at least, statements can facilitate the proof of material facts. Statements can facilitate the proof of material facts even if the witness does not adopt them, because findings on material facts may be affected by findings on credibility. But if a witness does adopt a prior inconsistent statement and accept the truth of it, that statement may be used as proof of the truth of its contents, and thereby be used to prove or disprove material facts.
