The credibility of the witnesses

Outnumbered on the witness stand by seven to one, a landscaping/snow removal contractor got the best of six directors and a property manager.

C.M. Callow Inc. v. Tammy Zollinger et al.
Ontario Superior Court of Justice
Court File No: 13-58903
Date: 27 November 2017
Heard: October 2, 3, 4, 5, 6, 9, 10 & 11, 2017
Before: Justice O'Bonsawin

Baycrest Gardens in Ottawa are managed by Condominium Management Group (CMG). At the time of the termination of the contract, Tammy Zollinger was the property manager.

Baycrest has ten condominium corporations, each having an individual board of directors. In addition, each condominium corporation sends a representative to the Joint Use Committee (JUC), which is tasked with making decisions regarding funding and awarding contracts for the shared facilities.

CMG provides a Property Manager, who is responsible for assisting the boards and the JUC. The condos share roadways, walkways and two parking lots.

Findings regarding the evidence
The judge began is judgement by dealing with the issues of credibility of the witnesses. Callow presented one witness and CMG presented seven witnesses.
Mr. Callow testified first.  The judge found him to be credible during his testimony. "He did not provide exaggerations, over-statements or illogical propositions. He did not hesitate when answering questions, especially during cross-examination, he answered the questions asked and did not challenge opposing counsel or provide run-on answers.

Mr. Callow easily agreed with CMG’s counsel in cross-examination, even when it was an issue that could cast a negative light on him."

CMG called as witnesses Mr. Kyle Campbell, Mr. Joseph Peixoto, Ms. Claudia Trites, Ms. Maryann D’Abramo Campbell, Ms. Sandra Monsour, Ms. Zollinger and Ms. Brown.

The responding witnesses
"The main witnesses for CMG, Mr. Campbell, Mr. Peixoto, Ms. Zollinger and Ms. Brown, however, had significant credibility issues. They provided many exaggerations, over-statements and constantly provided comments contrary to the written evidence.

During his testimony, Mr. Peixoto promoted a very personal position and this approach negatively impacted his testimony. He played a part in misleading Mr. Callow after the JUC decided to terminate his contract. During his testimony, Mr. Peixoto wanted to be seen as the good guy, the helpful witness.

Mr. Campbell had limited credibility. In fact, he was part of the duo with Mr. Peixoto that misled Mr. Callow into believing that his winter maintenance services contract would remain in place during the following winter."

"There was a series of private e-mails produced as evidence between Mr. Campbell and Mr. Peixoto that supported Callow’s position that Mr. Callow had been misled about the winter maintenance services contract.

These e-mails shed a negative light on Mr. Campbell and Mr. Peixoto. One of Mr. Campbell’s e-mails states: “I kind of want to keep a back pocket option” regarding the winter maintenance services contract."

The judge  found his notion of keeping something in his “back pocket” to be unsettling.

The property manager
"Ms. Zollinger got stuck in Baycrest’s parking lot on her first day as Project Manager. This likely negatively impacted her view of Callow moving forward. It is clear from her testimony, especially during cross-examination, the path that she took afterwards was not appropriate and did not fall in line with the principle of good faith dealings in contractual performance."

"Lastly, Ms. Brown testified.  She testified that her approach was to give credit where it is due. However, she did not take this approach when she testified. She wrote or was involved in many positive e-mails about Callow’s service. However, throughout her testimony, for every positive e-mail that she drafted regarding Callow and its services, she continually tried to shed a negative spin on them."

Written evidence
"There is a significant amount of written evidence. During cross-examination, many of CMG’s witnesses worsened or tried to change any positive comments made about Callow’s performance."

Affects on credibility
"This affects the credibility of CMG’s witnesses and leaves me to rely on Mr. Callow’s evidence and what is actually plainly written in the documents. On a whole, I have determined that Mr. Callow’s evidence is preferable to that of CMG’s witnesses."

Within 30 days of this Decision, CMG must pay Callow the amounts as follows:
(a)   $64,306.96 for the value of the contract after expenses;
(b)   $14,835.14 for the value of one year of the lease of equipment; and
(c)   $01,600.00 for the last unpaid invoice.

Callow won costs. If the parties can't agree, the judge will decide.

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