Workplace Sexual Harassment

Credibility Issues

Test re Credibility Assessment

 Many cases involve conflicting recounts of the facts involving two competing parties, with no independent witnesses supporting either view. In this event, credibility becomes an extremely important issue.

In making credibility assessments, the decider often will rely upon the test as set out in Faryna v. Chorny. 1The passage below is frequently cited, no doubt to ensure that the reader and any appellate review body will be satisfied that the correct principles have been applied:2

The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize is reasonable in that place and in those conditions…

This passage emphasizes the necessity for an objective assessment to be made as to whether or not the witness’ evidence “makes sense”. While this is certainly true, an important factor going into the assessment of credibility is the demeanour of the witnesses while giving evidence. In addition, the manner of speech of the witnesses is often telling in terms of their credibility.

In this case, I found that the applicant gave her evidence in a straightforward and direct manner, despite the fact that she was understandably quite nervous. She was able to describe with considerable certainty and precision the various incidents of harassment and discrimination that she alleged took place. Her evidence was not seriously disturbed on cross-examination. I do not believe that she exaggerated her evidence in any material way. Overall, I found her to be a credible witness.

When credibility is an important factor, “bald conclusions as to the credibility of one witness as compared to another will not suffice”.3

Corroborative Evidence

It is well-founded that while corroborative evidence is certainly helpful, it is not a pre-condition to prove an allegation of sexual harassment. 4

Similar Fact Evidence

There is always an inherent danger in the admission of similar fact evidence as the alleged offender may be proven guilty of a disposition as opposed to actual evidence on the immediate issue.5

The issue becomes more complicated as often the accusers may have collaborated with one another in advance, an issue which must be weighed by the decision maker in either admitting the evidence or determining its ultimate weight.6

The test is described in the usual words debating the admission of questioned evidence, namely the “probative value” as opposed to the “prejudicial impact". 7 One issue in determining the former is whether there is sufficient similarity between the proposed evidence and the immediate allegations. Such evidence ought not to be admitted if it only establishes a propensity.8

In applying this test, the Tribunal will look to the proximity in place and time, the extent of the similar details, the number of occurrences, the circumstances of the similar acts and the presence of any uniquely identifying events. 9 The evidence must be cogent and have a demonstrable nexus to the issues 10 and “striking similar”. 11The reason for its admission is often to determine credibility issues as the facts have often arisen in the absence of witnesses.12

Evidence of otherwise good character is typically not allowed as not probative. 13

Medical Evidence

Certainly medical evidence will be preferred and will likely allow for a more generous damage assessment, but it is not mandatory to prove the degree of emotional trauma suffered by the applicant. 14