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He said, she said: Assessing credibility and Bill 132

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With Bill 132 set to become law on September 8, 2016 for employers, and, January 1, 2017 for colleges and universities, organizations will have a statutory obligation to investigate workplace sexual harassment and sexual violence allegations and report on the findings. As the Bill 132 changes appertain to colleges and universities, sexual violence is defined as any sexual act or act targeting a person’s sexuality, gender identity or gender expression, whether the act is physical or psychological in nature, that is committed, threatened or attempted against a person without the person’s consent, and includes sexual assault, sexual harassment, stalking, indecent exposure, voyeurism and sexual exploitation.

As we know, in many instances of sexual harassment and sexual violence there are no witnesses to the event. This means that the investigation outcome will be determined by the credibility assessment of the complainant and respondent.

Credibility is one of the most important aspects of workplace investigations and credibility assessments are often a struggle for both internal and external investigators. How do you decide who is credible? How do you then communicate how you decided who is credible in your report? With that in mind, I thought that it would be helpful to see how some decision makers in the administrative law context address this very important issue.

Guidance to assist fact finders in how they set out their credibility assessments is found in the case of F.H. v. McDougall, 2008 SCC 53 (CanLII). In particular, McDougall outlined that inconsistencies in the evidence of witnesses (which includes the parties) must be considered in light of all of the evidence presented. The Court also stated that inconsistencies between evidence given at trial and evidence given on another occasion does not preclude a finding that the witness was credible. Of significant note, the Court found that corroboration of evidence is not required and fact finders are free to come to their own conclusions solely based on whether the complainant or respondent is believed.

In the matter of Ontario (College of Physicians and Surgeons of Ontario) v. Porter, 2016 ONCPSD 3 (CanLII), the physician respondent was alleged to have engaged in sexual abuse of a patient. In finding the complainant credible, the decision reads in part, “Patient A gave her evidence in a direct and simple manner. When she did not understand the question posed, she said so. She did not attempt to deflect questions and was forthright when she did not know the answer. She was plain spoken and unsophisticated. She was also nervous and emotional; she was easily provoked to tears when touching on sensitive issues e.g. flirtatious comments, the developing relationship, her admission of liking his attention. The committee is of the view that this was appropriate, given the substance of her testimony.”

The Porter decision also addressed the complainant’s vulnerability. “The Committee accepts Patient A’s vulnerability as illustrated in her marked lack of self-esteem. This is best illustrated by her comments regarding Dr. Porter “he is a far cry from my class…..Why would he ever like me?…..I was just a person who worked at a coffee shop, you know.” She admitted she liked Dr. Porter’s attention, and that it made her feel special.”

In concluding its comments on the complainant’s credibility, the decision reads, “The Committee scrutinized these inconsistencies and found her explanations of each to be reasonable and understandable. In the Committee’s view they did not detract from the credibility or reliability of her evidence on the key issues. The Committee found her evidence to be credible and reliable. The Committee rests this decision on the above and in particular notes: the consistency of her testimony with the evidence of others, the video clips and the medical record; her memory of events; the detailed description of the nature of touching; the absence of any apparent motive in bringing forward her complaint; and the openness with which she described her personal vulnerabilities and other personal details of her life.” (my emphasis)

In Sather v. Deputy Head, 2015 PSLREB 45, the respondent, Sather, was alleged to have sexually assaulted one of his coworkers. An investigation was conducted and he was terminated. Mr. Sather grieved his termination for cause arising from the alleged incident of sexual assault. In determining that the respondent committed a sexual assault which justified his termination, Adjudicator William Kydd methodically addressed inconsistencies in the evidence proffered by the complainant and concluded that the complainant was credible.

At paragraph 159, “In this case, the complainant’s flirty relationship or ambiguous conduct with Mr. Sather leading up to when she first was in his truck cannot be taken as indicating consent to the subsequent sexual activity. That would be contrary to law. I include the controversy about whether the complainant held up the keys and in Ms. Moan’s eye seemed to be a willing participant to leave with Mr. Sather in his truck. Once the complainant was in the truck, the only evidence is that she became quite frightened about the grievor’s intentions and that she repeatedly indicated to Mr. Sather that she did not want to have sex with him. At no time did she change her mind and grant consent.”

At paragraph 166, “However, I find the complainant’s evidence credible once she was in the truck and the grievor started to drive. It was 17 below and she was lightly dressed and had left her purse in the bar. Her evidence is that she immediately started demanding that the grievor stop and let her return to the bar. Her evidence is clear that she was not consenting to any sexual activity.”(my emphasis)

At paragraph 170, “After considering all the evidence, I accept as credible that the complainant’s evidence shows that on a balance of probabilities, she was sexually assaulted by the grievor.”

In O.P.T. v. Presteve Foods Ltd., 2015 HRTO 675 (CanLII), O.P.T. commenced a Human Rights application alleging that she had been subjected to sexual solicitation, sex assaults and discrimination on the basis of sex by the male owner and principle of Presteve. By the time of the Hearing, the events that formed the backdrop of the application had occurred years in the past, dating back to 2007/2008. At the hearing, the complainant had difficulties providing specifics of the incidents that formed the basis of her complaint.

Adjudicator Mark Hart found O.P.T. credible. At paragraph 104, “I find O.P.T.’s evidence to be credible on a balance of probabilities with regard to these material allegations. Her evidence regarding these allegations remained substantially consistent throughout her testimony and was not shaken on lengthy and detailed cross-examination. She was often emotional during her testimony in a manner that I found to be commensurate with the severity of her experiences. She was able to provide what I found to be telling and explicit details in relation to most of her material allegations that in my view support the conclusion that she was being truthful. And the personal respondent did not testify before me to contradict O.P.T.’s testimony on her material allegations, so I am not in the position of having to resolve a conflict between their evidence.”

At paragraph 115, the Adjudicator directly tackled and resolved the inconsistencies of certain instances of sexual touching that O.P.T. alleged had occurred without her consent. The decision reads, “Indeed, the respondents took issue with the fact that O.P.T. was able to provide a lot of detail about the incident on May 4, 2008, but was unable to provide the same level of detail in relation to the incidents of sexual touching. I do not disagree with the respondents that there was some lack of detail in O.P.T.’s evidence about the other alleged incidents of sexual touching, as compared to her evidence about the May 4, 2008 incident, and this certainly gives me pause in my assessment of her credibility. At the end of the day, however, I find that any difference in O.P.T.’s ability to recall details of the events in question can be attributed to the fact that O.P.T. had reported the May 4, 2008 incident to the police the very same day it happened (at the insistence of her friend who witnessed the incident and who threatened to go to the police with or without O.P.T.), that the incident was the subject of criminal charges against the personal respondent, and that O.P.T. testified at the criminal trial a relatively short time after the incident. In contrast, O.P.T.’s first disclosure regarding the sexual assaults occurred some seven months to over a year after these incidents had occurred. As a result, the variance in the level of detail with which O.P.T. was able to recall the May 4, 2008 incident as opposed to the incidents of sexual assault and touching does not alter my finding that she was a credible witness.”

The three cases noted above provide a cross section of how decision makers approach credibility assessments in decisions arising from various administrative tribunal matters. Language such as – “Her evidence is clear that she was not consenting to any sexual activity”; “The Committee scrutinized these inconsistencies and found her explanations of each to be reasonable and understandable”; Ms. A’s emotional expression was congruent with the content of what she was testifying about and it was entirely believable” conveys the reasoning for arriving at the conclusion that the complainant was credible. What is of note is that in each case there were inconsistencies in the complainant’s evidence, the inconsistencies were addressed in the decision and there was a clear and unequivocal statement about why the complainant’s evidence was found to be credible.

In investigations of sexual violence and sexual harassment where so often there are no witnesses, a thorough and well-articulated credibility assessment is a crucial component to withstanding scrutiny from any quarter. It is essential that investigators understand the type of information best suited for inclusion in such an assessment and that a conclusion be rendered as to whether and why a party or witness to an investigation is credible or lacks credibility.

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.