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The Ontario Court of Appeal recently considered this question in a case involving an appeal from a conviction of sexual assault.[1] The decision is an important one for any workplace investigator faced with assessing someone’s credibility.
Alcohol and work events often don’t mix well. Some know this from personal experience. Others, like us, are called upon to investigate allegations arising from work events at which alcohol and “good times” were flowing freely. It will come as no surprise that, as workplace investigators, the issue of alcohol consumption and intoxication pops up with some frequency in our work.
As workplace investigators in 2020, we routinely deal with issues in investigations that relate to technology, especially social media applications. In any given investigation, some portion of the alleged bullying might have taken place over Facebook, or Slack messages might provide critical evidence of sexual harassment.
Despite this opening sentence in her decision, Tribunal Chair Juricevic found that the complainant’s allegations of sexual harassment and discrimination were not substantiated.
As a workplace investigator, I am sensitive to the fact that conversations around #MeToo in the workplace have been an evolution; people are not always sure about “where the line is” when assessing whether conduct in the workplace amounts to sexual harassment. The British Columbia Human Rights Tribunal recently chimed into this discussion. The decision¹ provides a detailed refresher on the legal test for claims of sexual harassment and draws a line in the sand regarding what is (or is not) considered sexual harassment.
Law enforcement agencies, such as police services, correctional institutions and the RCMP, are distinguishable workplaces with a paramilitary culture and an emphasis on solidarity with one another. These attributes can be important in the execution of duties, given the inherent dangers involved in working at such organizations.
However, problems manifest when the notion of solidarity evolves into an unwillingness to report the misconduct of one’s colleagues. This unwillingness, often referred to as the “code of silence”, the “blue wall” or the “thin blue line”, is often rooted in a fear of backlash in the workplace.
In 2018, the Ontario human rights tribunal case A.B. v Joe Singer Shoes Limited received a lot of attention because of its high damages award – $200,000 for the Applicant’s pain and suffering from of over 20 years of sexual harassment by her boss, Mr. Singer. But when Mr. Singer sought judicial review of this decision, it was not the quantum of the damages that was at issue; it was the Vice-Chair’s assessment of the parties’ credibility. Since this was a “he said, she said” case – there were no direct witnesses to Mr. Singer’s conduct – the Vice-Chair determined that Mr. Singer had engaged in sexual harassment, even though he denied doing so, because she believed the Applicant (Ms. B.) and did not believe Mr. Singer.
In my previous life, before becoming an investigator, I lived in the world of private legal practice, both in the Caribbean and in Ontario, Canada. In that role, I had the opportunity of interacting with persons of diverse social, cultural and racial backgrounds, persons of varying personality types and persons with experiences that had shaped their life or the way they interacted with others. There were many occasions where the persons with whom I interacted, whether as their advocate or as opposing counsel, were seemingly not forthcoming with the information that I needed to illicit. The typical or traditional thinking is that they are not forthcoming because they are either lying or have something to hide.
In the last two years, “I believe women” has become a frequent comment in discussions about sexual harassment and sexual violence. It’s an important one, given the negative experience that many women have had when trying to report sexual abuse, including low conviction rates for perpetrators and a feeling that their stories were not heard.
