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The credibility of interested witnesses, particularly in cases of conflict of evidence,
cannot be gauged solely by the test of whether the personal demeanour of the
particular witness carried conviction of the truth. The test must reasonably subject
his story to an examination of its consistency with the probabilities that surround the
currently existing conditions. In short, the real test of the truth of the story of a
witness in such a case must be its harmony with the preponderance of the
probabilities which a practical and informed person would readily recognize as
reasonable in that place and in those conditions.
[93] I have considered the evidence as a whole within the context of the circumstances of this
matter. Overall, Etedali’s story is more consistent with the surrounding circumstances. It makes
no sense that an individual, who was so focused on his financial problems, would set out to do the
one thing that would constitute a severe blow – namely to resign and forfeit his entitlements under
his employment agreement including the fair market value of his shares and the associated
compensation.
[94] Etedali’s testimony was largely straight forward and candid. For example, he testified
candidly that he did not remember the entirety of the meeting, word for word. This is a forthright
admission and consistent with the likelihood that, in the absence of any written or other recording,
individuals will not remember every word spoken at a meeting several months, and then years,
later. While he appeared defensive at times under cross examination, overall his testimony
withstood the rigors of cross examination. It defies logic that Etedali intended to resign and
forfeited the fair market value of his common shares and contractual notice in the process when
he was in financial difficulty and cash strapped.
[95] On the other hand, the evidence of DiSimone and Perin was contrived and lacked an air of
reality. This is evident by the contradictions of their conduct by their words and their selective
memory concerning matters that they, as owners of DPI, should have remembered.
[96] For example, they testified that they were shocked, stunned and surprised by Etedali’s
purported resignation. However, the steps leading to the meeting including, notably, stripping
Etedali of his position of director, contrary to the provision in the Employment Agreement that
guaranteed him a position on the board of directors, and without any explanation or any real
opportunity to defend himself, together with Etedali’s growing vocal unhappiness and frustration
directed towards them, they ought, acting reasonably, to have anticipated Etedali’s reaction and
hostile attitude at the severance meeting.
[97] Perin and DiSimone’s testimony appeared, at times, to be rehearsed. Their examinations
appeared to be tightly controlled. There were unexplained gaps in their memory when they were
pressed under cross examination concerning matters supportive of Etedali’s positions. Their
interactions with Etedali, by their own accounts, were inconsistent with their expressed sentiments
of shock at Etedali’s frustration and desperation he displayed at the Severance Meeting. On an
objective standard, they showed a disregard of Etedali’s position as an officer, director and
minority shareholder, and tried to take unfair disadvantage of his financial desperation (albeit of