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Credibility assessment: No problem for NSHRC Board of Inquiry Chair

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I would venture to say that many, if not most of us have struggled with credibility assessments in our practices. Whether interviewing witnesses in workplace investigations or as legal counsel preparing clients to give evidence, we are alive to what is being said and how it is being received.

More often than not decisions arising from court cases or administrative tribunal hearings use phrasing such as, “I prefer the evidence of X over that of Y” or “I am more persuaded by X than Y”. That was not the case in a December 2014 decision from the Nova Scotia Human Rights Commission Board of Inquiry in Graham v. Shear Logic Hairstyling, 2014 CanLII 75502 (NSHRC). Chair Kenneth Crawford was blunt is his denunciation of the respondent’s evidence during the hearing that occurred close to 7 years after the complaint had originally been made. The complainant, Graham, alleged that she had been sexually harassed and discriminated against on the basis of sexual orientation during her term of employment with Shear Logic Hairstyling by the business’ owner/operator, Sean Cormier.

Some of the incidents described by Graham included Cormier referring to her as “a crazy bipolar lesbian” or a “bitch” and introducing Graham to clients as a lesbian. On one particular occasion when Cormier invited Graham out for dinner and she refused his offer, he showed up at her apartment and began screaming and shouting obscenities at her. Those obscenities ranged from “crazy bipolar lesbian” to “crazy bitch” and “stupid bitch”. Cormier then fired Graham and told her to stay away from the salon.

At the hearing, Cormier testified that he and Graham never argued while at work but had normal workplace conversations. He denied ever making sexual advances toward Graham. Cormier also denied barging into Graham’s apartment and yelling, but testified that she was hysterical. In short, Cormier denied all of Graham’s allegations.

In rejecting the respondent’s evidence, Adjudicator Crawford did not mince words. “I found the Respondent’s evidence to be replete with contradictions, evasiveness, constantly forgetful…untruthful, nonchalant, uncaring and detached. He seemed to have had a plodding acquaintance with the truth.” And just in case there was any doubt about the Chair’s credibility assessment of the respondent the Adjudicator stated, “I did not believe him at all”.

There is a cautionary tale here for all of us. Whether you are a union representative and the grievor is going to tell his/her story during a grievance meeting, or a human resources advisor working with a manager who is frustrated with a longstanding difficult employee, or legal counsel preparing a client to give evidence in a hearing, listen to what is being said and how it is being delivered. If you have some concerns about how events are being characterized or the words and phrases used to describe an incident, then a decision-maker is likely to have those same concerns. Taking time to work on messaging before a meeting or hearing can often make a big difference in the outcome.

As professionals conducting workplace investigations, we have learned to improve how we listen and what we listen for when endeavouring to get closer to the truth. We have also developed the ability to weigh and consider the many sides of the information and accounts gathered from witnesses and evidence in order to determine, like Kenneth Crawford, the credibility of both the complainant and the respondent. Adjudicator Crawford made it sound easy, and experience plays a critical role in the ability to ask the right questions, listen carefully to, and observe the style of the answers and finally, to have the confidence to assess and analyse responses so that credibility can be determined — that is what experts are able to do.

Kenda Murphy

About the Author: Toronto Employment Lawyer Kenda Murphy is a lawyer with over 20 years of experience in civil and criminal litigation. Over the course of her career she has been in private practice and worked in the public sector with the Public Prosecution Service, Department of Justice and Health Association Nova Scotia. Most recently Kenda was the Associate Director & Counsel of the Employee/ Labour Relations Unit at Queen’s University.