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Trauma and Credibility: the Ontario divisional court reviews a “he said, she said” case of sexual harassment

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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.

The Vice-Chair preferred Ms. B’s evidence despite significant gaps in her memory and, at times, only limited details in her descriptions of what Mr. Singer did to her. The Vice-Chair found that Ms. B evidence was persuasive insofar as she was able to testify about some incidents in a straightforward manner, and recalled specific details, such as Mr. Singer’s smell, how her knees felt on the floor and how she felt when he was on top of her during their non-consensual sexual encounters. The Vice-Chair’s credibility assessment was informed in part by medical evidence indicating that Ms. B. suffered from depression and post-traumatic stress disorder (PTSD), which had a significant impact her memory. While the medical practitioners who testified on Ms. B’s behalf also said that they believed Ms. B’s PTSD was caused by sexual trauma, the Vice-Chair was careful to point out that she was responsible for determining whether sexual harassment occurred – not them.

Although there has been ample research and discussion on the relationship between trauma and memory, and the importance of trauma-informed approaches to cases of sexual violence, it is rare to see the impact of trauma on credibility discussed in a tribunal or court decision. The judicial review of Singer Shoes exemplifies how evidence of a party’s trauma-related mental illness can affect a decision-maker’s assessment of that party’s credibility.

Contextualizing Poor Memory and Inconsistencies in Evidence

In seeking to quash the Vice-Chair’s decision, Mr. Singer’s counsel argued that the Vice-Chair did not take into account several inconsistencies in Ms. B’s evidence when assessing her credibility. For example, Ms. B. testified that during the time of Mr. Singer’s sexual harassment she was not sleeping well; however, records from a psychological assessment conducted at that time showed that she told the assessors that she did sleep well. When she was cross-examined on this, she said that she told the assessors that she did not sleep well, but they did not understand her English. She then acknowledged that the assessors said that she had good English skills and that she did, in fact, have good English skills. While the Vice-Chair ultimately rejected Ms. B’s evidence on this point, it was not interpreted as a sign that Ms. B. was being untruthful about Mr. Singer’s sexual harassment.

Mr. Singer’s counsel also argued that inconsistencies in Mr. Singer’s evidence weighed against his credibility but similar inconsistencies in Ms. B’s evidence did not affect hers. For example, in the hearing Mr. Singer mentioned that Ms. B. had demanded that he pay her $25,000 for a “sex thing” and that she had diverted electricity from the store to her apartment above the store, even though he had not previously mentioned this to Ms. B. In the Vice-Chair’s decision, she found that this inconsistency signified Mr. Singer’s lack of credibility (Ms. B admitted that she had threatened to sue Mr. Singer but denied that she asked him for money). Conversely when Ms. B. testified that Mr. Singer reprised against her by having her car ticketed when it was parked adjacent to their workplace, which was not raised with him previously or in her application, the Vice-Chair dismissed this aspect of Ms. B’s evidence but it did not impact her assessment of Ms. B’s credibility.

The Court upheld the Vice-Chair’s credibility assessment. It found that although Ms. B. had gaps in her memory and inconsistencies in her evidence, these were not signs of falsification:

[94] Given Ms. B.’s memory issues…inconsistencies in her evidence took on less significance as a test of her truthfulness than they might in the case of a witness who was not suffering from such issues.

The Court also denied that the Vice-Chair scrutinized Mr. Singer’s evidence more so than Ms. B’s. Instead, it found that the Vice-Chair placed less weight on inconsistencies in Ms. B’s evidence because of her memory issues, which the medical practitioners attested to in their evidence.

Lessons for Trauma-Informed Investigations

When there is a risk that a party to an investigation has experienced trauma, investigators should consider using a trauma-informed approach to the investigation. When using this approach, investigators will ask questions in an open-ended manner to give the party space to express their experience, even if it is non-chronological and fragmented. A trauma-informed investigator will also recognize that a traumatic experience such as sexual assault can compel individuals to act in ways that may seem counterintuitive, such as being immobile or dissociating. These responses, on their own, do not diminish the severity of the incident or undermine the likelihood that it occurred (More information on trauma-informed investigations in my colleague Michelle Bird’s recent blog post).

But using a trauma-informed investigation process is distinct from weighing evidence differently because one party experienced trauma. Singer Shoes is a helpful case insofar as it tells us that when there is medical evidence showing that a person has memory issues due to a trauma-related mental illness, a lack of reliability or inconsistencies in their evidence will not necessarily undermine the party’s credibility. However, without the medical evidence presented in Singer Shoes, investigators must ensure that they scrutinize the evidence of each party equally and weigh unreliable or inconsistent evidence appropriately. It is possible that inconsistencies in a party’s evidence, even within the context of a traumatic experience, may signify untruthfulness.