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The assessment of credibility and reliability is always a central part of an investigator’s work. My colleague, Chantel Levy, wrote an excellent overview of the considerations a decision maker should bear in mind when making a finding of credibility, including consistency, corroborative evidence, plausibility, and motive.
It is also well established that a determination of a witness’ credibility should be holistic, and made in the context of the evidence as a whole;1 a finder of fact should take a step back and determine, overall, whether a witness’ evidence is in general credible or reliable.
This does not mean, however, that credibility is an all-or-nothing proposition; making an adverse finding of credibility does not mean everything the witness said should be rejected, nor does making a positive finding of credibility mean all their evidence should be accepted without question. A finder of fact can legitimately accept a witness’ evidence on one issue, but reject it on another. However, such specific findings still need to be made in the context of the overall finding of credibility, and a decision maker should explain why a particular finding is made that is inconsistent with the broader finding.
The consequence of not considering credibility in the context of the evidence as a whole was demonstrated in a recent decision of the Ontario Divisional Court, Aslam v Ontario College of Pharmacists, 2023 ONSC 2549. This was an appeal from a decision of the Ontario College of Pharmacists’ Discipline Committee, involving a number of allegations of sexual harassment and sexual assault. In its decision,2 the Discipline Committee dismissed a number of the allegations, based in part on adverse findings respecting the credibility and reliability of the complainant’s testimony. Amongst its findings, the Discipline Committee determined that the complainant contradicted herself, that she had included allegations of some events which clearly did not happen, and that she had a history of making claims which were ultimately found to be unsubstantiated.
The Committee, however, also found that two of the allegations, including the most serious allegation of sexual assault, were substantiated, finding that the complainant’s evidence respecting these particular incidents was credible and reliable.
The pharmacist appealed to the Divisional Court under s 70 of the Health Professions Procedural Code.3 The two main challenges to the decision were that the Discipline Committee’s assessment of the credibility and reliability of the complainant’s evidence was fundamentally flawed, and that findings of fact in favour of the complainant were made without sufficient evidentiary support.
In allowing the appeal, the court held that though the Discipline Committee had properly set out the law respecting the assessment of credibility and reliability, it had erred in applying those principals in its assessment of the evidence. The central error was that the Discipline Committee had improperly compartmentalized its credibility assessments, whereby it appeared to have made a new finding of credibility for each separate allegation, without considering or addressing its adverse findings of credibility respecting other incidents.
Though the Discipline Committee had correctly noted that an assessment of credibility was not an all-or-nothing proposition, and that a witness could be found to be credible or reliable on one point, but not on another, the court held that the Discipline Committee nonetheless had to consider the witness’ overall credibility in making each finding. Though open to the Discipline Committee to accept the witness’ evidence on some issues, and not on others, it failed to recognize that a factual finding that relied on a determination of credibility could not be made in isolation, and, in order to be defensible, had to make reference to the witness’ evidence as a whole.
Cases involving sexual harassment can be difficult for a finder of fact, as by their nature, there is rarely any direct evidence, other than the often diametrically opposed recollections of the individuals involved. As set out in another recent post by my colleagues Katharine Montpetit and Janice Rubin, a trauma informed approach to independent fact finding recognizes that a gap or inconsistency in a complainant’s evidence does not necessarily lead to a lack of credibility. However, where a decision maker makes a finding of fact based on a witness’ credibility or reliability, such a finding cannot be made in isolation, and cannot disregard determinations of credibility that put the reliability of the witness’ evidence in question.
2 Ontario College of Pharmacists Discipline Committee, Ontario (College of Pharmacists) v Aslam, 2020 ONCPDC 31.
3 Schedule 2 to the Regulated Health Professions Act, 1991, SO 1991, c 18.
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