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As we know, workplace investigations are often challenging at the best of times. However, when investigating workplace sexual violence or sexual harassment even the most seasoned workplace investigator sometimes wonders why she did not pursue another profession. Not only is the subject matter deeply personal but can also be profoundly embarrassing and painful for individuals to recount in the telling and re-telling of the events that took place. Workplace investigators must be able to sensitively ask questions and probe for details to understand what transpired from the complainant’s perspective so that the respondent is made aware of what he or she is alleged to have done and is afforded the opportunity to provide his/her version of events. Often no one else was present. What happens next?
What should not automatically happen, yet continues to all too frequently, is for the investigator to throw up her hands and say it’s a “he said/she said” situation so no finding can be made. The reason that some workplace investigators make this mistake is that they believe that corroboration is required to support a finding that sexual harassment or sexual violence occurred. Once and for all, we must understand that corroboration is not required to find on a balance of probabilities that a specific act – or acts – constitutes sexual harassment or sexual violence.
Bill 132, that came into effect on September 8, 2016, amended, inter alia, the Occupational Health and Safety Act by setting out new definitions and will, on January 1, 2017, amend the Ministry of Training, Colleges and Universities Act, to set out new definitions; require training, policy, process and investigations; as well as ensuring that the outcome of the investigation is communicated to the parties. There is no requirement for corroboration of allegations for a finding that sexual harassment or sexual violence to be made.
In fact, case law from the Supreme Court of Canada through to administrative tribunals including Human Rights Tribunals, all echo the principle that corroboration is not required to support a positive finding. Moreover, the decisions acknowledge that the nature of the acts are such that they normally occur in private. As such, it seems counter intuitive to expect to find witnesses to sexual violence and sexual harassment.
In F.H. v. McDougall, 2008 SCC 53 at para. 80 the Supreme Court said:
“Corroborative evidence is always helpful and does strengthen the evidence of the party relying on it as I believe Rowles J.A. was implying in her comments. However, it is not a legal requirement and indeed, may not be available, especially where alleged incidents took place decades earlier. Incidents of sexual assault normally occur in private.” (emphasis mine)
In the seminal HRTO decision of Chuvalo v. Toronto Police Services Board (2010) HRTO 2037 (CanLII), Adjudicator Overend commented on the internal investigation that was done by Professional Standards and found it lacking in understanding of harassment investigations and corroboration requirements. The Adjudicator wrote:
“There were, however, problems with the investigation conducted by Professional Standards. Det. Young, the investigator assigned to investigate all three matters testified that he had not investigated an allegation of sexual harassment and appeared not to have been given any special training in such matters. He concluded that because there had not been any “independent evidence” the applicant’s allegations could not be “substantiated” and recommended that the matter not proceed to a disciplinary proceeding.
 This requirement for “independent evidence” ignores the fact that many allegations of discrimination and harassment take place in private and often there is no evidence “independent” of the two parties to the incidents. Even where witnesses are present, there may be compelling reasons for them to not be forthcoming in an investigation.” (emphasis mine)
In this small sampling of cases, the messaging is clear and consistent: while corroboration is useful, and should be sought if available, it is not required to arrive at a finding that sexual violence or sexual harassment occurred. It is key to understand that absent corroboration, the investigator must still be satisfied that the complainant’s version of the evidence is credible and reliable to make a finding. If the investigator is not satisfied of the complainant’s credibility or the reliability of the evidence, then there may well be a finding that the allegation is not supported by the evidence. As workplace investigators, it is critical that we know what is and what is not required to produce a comprehensive and legally defensible report in all matters, especially those involving sexual violence and sexual harassment.
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.