My question is trying to elucidate the weight a verbal discussion between home-owner and contractor would carry in small claims court in Nova Scotia, Canada.

The context would be that the home owner takes a renovation contractor to court over faulty workmanship that is provably wrong, and in at least one case, caused damage to the home. In trying to deal with the problem, the home owner convinces the contractor to visit to look at the issues. They have a conversation on the homeowners premise. The contractor then leaves, and emails that as a result of the conversation, they will not be fixing the issues or doing any further work.

Presumably the homeowner and contractor will disagree about the contents or context of things said in the conversation. In the event that they outright say the other is lying about what was said in the conversation, will the judge have to dismiss this as evidence that the contractor had a right to forgo warranty work due to what was said, or will the conversation hold weight, one way or the other, in court?

1 Answer 1


The judge as trier of fact

In a judge only trial the judge has two roles that are otherwise split between the judge and the jury - to decide what the law is and to decide what the facts are.

Whether it is a judge or a jury, the trier of fact will consider the testimony and other evidence and make their own judgement about what is credible, what is not, and what is a little of both. They will then decide if the plaintiff has proven their case on the balance of probabilities.

A judge, unlike a jury, is required to give reasons for their decisions on the facts (as well as the law)including what evidence they consider had the most probity. However, in a small claims court, such reasons are likely to be perfunctory.

Experienced judges understand that people can honestly have recollections of events that widely diverge without either of them necessarily “lying”. In any dispute between two people, there are always three stories - what he says, what she says and what actually happened. The fact that the accounts differ from reality is not, of itself, evidence of deceit and one would be unwise to make the accusation without proof.

  • I guess I am just concerned that despite overwhelming physical evidence of poor (sub standard and literally broken) workmanship, the contractor may be able to twist an unprovable conversation to get out of reparations and avoid breach of warranty as well as possibly, breach of contract
    – Wesley
    Nov 24, 2021 at 21:04
  • 1
    @Wesley not if you can prove it. Do you have a report from a structural engineer and are you willing to pay them to testify? That evidence will carry more weight than anything either of you says.
    – Dale M
    Nov 24, 2021 at 23:16

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