“I know it happened because my gut tells me it did.”

As a workplace investigator, my work involves making factual findings where I must determine whether an alleged incident occurred. Over the years, I have interviewed individuals who have conveyed to me their sincere feeling that the alleged incident I am investigating has happened but have not been able to provide any other evidence or witness to corroborate their feeling. For instance, I have had witnesses state that while they did not see the alleged conduct occur between the complainant and the respondent, they feel it happened based on previous observations of or similar interactions they have had with the respondent. I have also been involved in investigations where a complainant’s feeling that the alleged conduct occurred as they have described is based on an assumption they have about the intention behind a respondent’s actions.  In interviewing these individuals, I note that some questioned whether their feeling alone, would be sufficient proof that the alleged conduct occurred. Others have steadfastly asserted that their feeling alone should be evidence enough that the alleged incident took place. Is a feeling alone evidence that an investigator can rely on to make a factual finding?

Feelings or Beliefs As Evidence – HRTO Decisions

The Human Rights Tribunal of Ontario (“the Tribunal”) has repeatedly held that it cannot make a finding of discrimination based on an applicant’s feelings or beliefs alone. An applicant must allege facts which, if true, allows the Tribunal itself to link the respondent’s actions towards the applicant to a prohibited ground under the Human Rights Code, R.S.O. 100, c. H.19 (“the Code”).   An oft-cited decision where these notions are explored is Hui v. EPM Global Services, 2011 HRTO 2121.

In Hui, the applicant alleged that the respondent employer discriminated against and harassed him with respect to employment on the basis of disability contrary to section 5 of the Code. A summary hearing was held in which the adjudicator noted that for the applicant to succeed in his Application, he would have to prove that he was: i) mistreated by the respondent while he was employed and when he was terminated; and ii) that the mistreatment was linked to a prohibited ground in the Code.

During the summary hearing, the applicant provided no evidence to link the alleged discrimination and harassment to his disability. Interestingly, the applicant “candidly acknowledged” that he had no such evidence and could not even say that a link existed. At the summary hearing, the applicant also indicated that the respondent mistreated him on the basis of his age or his appearance. Once more, the applicant could not provide evidence to the Tribunal to illustrate a link between the alleged mistreatment by the respondent and his age or appearance, but “felt that there was a link” (emphasis added).

The adjudicator then went on to provide the following analysis:

The applicant may honestly believe and genuinely feel that the respondent treated him the way it allegedly did because of his disability, age, appearance or other prohibited ground under the Code. However, the applicant’s belief that the respondent mistreated him on the basis of his disability, age, appearance, etc. is not evidence. As I explained during the Summary Hearing, it is not open to the Tribunal to make a finding of discrimination or harassment based only on the applicant’s feelings or beliefs. The Tribunal cannot find that the respondent discriminated against or harassed the applicant unless there are facts alleged which, if true, would allow the Tribunal itself to link the respondent’s actions towards the applicant to his disability or another prohibited ground under the Code.[i]

Several Tribunal decisions have echoed and built upon the adjudicator’s analysis above. In reviewing these decisions, I note the following takeaways:

• An applicant may have an honest, genuine or sincere feeling that they have been mistreated by the respondent on the basis of a prohibited ground but the feeling is not evidence that the respondent did so.[ii] Similarly, an applicant’s perception of discrimination is not evidence.[iii]
• The Tribunal cannot make a finding of discrimination on an applicant’s assertions, feelings or beliefs alone.[iv]
• An applicant must be able to offer evidence of a correlation or nexus between the alleged mistreatment and the applicant’s rights under the [v] The applicant requires this correlation or nexus to prove to the Tribunal, on a balance of probabilities, that the respondent discriminated against them on the basis of a prohibited ground under the Code.[vi]

Application to workplace investigations

For those conducting workplace investigations, I offer the following considerations when faced with feelings or beliefs being offered as evidence that the alleged conduct occurred:

• Satisfy the standard: Workplace investigators like my colleagues and I, apply the same standard of proof in our workplace investigations as the Tribunal does when assessing evidence, namely the “balance of probabilities’ standard. This means that we have to determine whether it is more probable than not that the alleged conduct occurred. To satisfy this standard, there must be clear, convincing and cogent evidence to support the finding being made, as per the Supreme Court of Canada’s decision in (R.) v. McDougall, 2008 SCC 53 (S.C.C.)[vii].

If a feeling or perception is the only information an investigator obtains from a complainant or witness regarding an allegation, this would not be sufficiently clear, convincing and cogent evidence to satisfy the balance of probabilities standard. Drawing from the Tribunal decisions above, a feeling or perception is not evidence that can be relied upon to make a finding of discrimination. It is my view that this concept can be readily applied to the realm of workplace investigations. A feeling is not a fact and should not be used as the only evidence to support a finding that an alleged incident is more probable than not to have occurred.

Determine if there is any other evidence available. When a party relies on a belief that an alleged event occurred, the investigator should ask whether there is any other cogent evidence that can gathered. For instance, did any other individual directly witness the alleged event? Can the investigator obtain any other evidence to corroborate the allegation? For instance, are there any e-mails or text messages that contain information to prove the allegation? Is their surveillance video that captures the alleged conduct? If any of these types of evidence exist, the investigator should make reasonable efforts to see if the evidence can be obtained to determine whether the allegation can be substantiated that way, rather than relying on a feeling or belief to make a factual finding.

• Find out if there are facts behind the feelings. An investigator may encounter situations where there are facts underlying the complainant’s feeling about the alleged conduct that should be asked about and considered. For instance, a complainant may indicate to an investigator that they feel bullied and harassed by their supervisor. A prudent investigator would follow-up on the feeling the complainant has expressed with a question such as, “Can you describe for me an interaction with your supervisor that made you feel that way?” or “Can you think back over the last two months and tell me about specific occasions that prompted you to feel this way?”. A complainant’s responses to questions such as these could draw out additional information relevant to the investigation, illustrating that feelings can sometimes be a by-product of an actual event that an investigator can assess factually.

• Consider the probative value of perceptions: The Tribunal has noted that while a perception cannot be used an evidence in a human rights claim, it can still have relevance and probative value.[viii] Nevertheless, while an individual’s perceptions may have some probative value, the Tribunal must exercise caution in relying solely on perceptions to make a finding.

• Do not dismiss feelings altogether. Just because an investigator cannot use a feeling as evidence for a factual finding, does not mean that a complainant or witness is not being sincere or has not been personally impacted by the alleged conduct. As a workplace investigator, I appreciate that conveying information to an investigator can be a stressful experience. Investigators should be mindful to navigate interviews where feelings are offered as evidence with sensitivity and tact, especially when they involve serious allegations.

Webinars: Registration is now open!

This means that you can take our courses across Canada wherever you may be located. All you need is an internet connection and your computer. Click here to view our courses and to register.

[i] Hui v. EPM Global Services, 2011 HRTO 2121 at para. 14.

[ii] See Ibrahim v. Public Health Ontario, 2012 HRTO 522 at para. 17; Leong v. Ontario (Attorney General), 2014 HRTO 311 at para. 47; Konesavarathan v. Wellington-Dufferin-Guelph Public Health, 2017 HRTO 1628 at 102; Matthews v. Cashew and Clive Catering Corporation, 2019 HRTO 1440 at para. 29.

[iii] Murray vs Youthlink, 2015 HRTO 1694 at para. 13. In Murray, the applicant emphasized she is a racialized person and knows discrimination when she experiences it. The Tribunal held that the applicant’s perception of discrimination is not evidence.  See also: Young v. Fanshawe College of Applied Arts, 2017 HRTO 333 at para. 43; Konesavarathan v. Wellington-Dufferin-Guelph Public Health, 2017 HRTO 1628 at 102.

[iv] See Ibrahim v. Public Health Ontario, 2012 HRTO 522 at para. 17; Young v. Fanshawe College of Applied Arts, 2017 HRTO 333 at para. 43;

[v] See Leong v. Ontario (Attorney General), 2014 HRTO 311 at paras. 47-49;

[vi] See Young v. Fanshawe College of Applied Arts, 2017 HRTO 333 at para. 43.

[vii] At para. 46.

[viii] Konesavarathan v. Wellington-Dufferin-Guelph Public Health, 2017 HRTO 1628 at paras 100-102.