Apr 25, 2022  By John Hyde

Trauma and Memory Loss How This Could Effect Credibility in a Workplace Investigation

Trauma and Memory Loss: How This Could Effect Credibility in a Workplace Investigation

Workplace investigators are highly dependent on individual memories, and routinely want to know the "who, what, when, where, why, and how" from witnesses that are interviewed. However, following a trauma, a person may only have fragmented memories, or memory gaps and inconsistencies.

One of the reasons why damage awards at the Ontario Human Rights Tribunal ("HRTO") have significantly increased over the years, is because of the complex and technical requirements involved in conducting an adequate and impartial investigation, as well as the level of scrutiny placed upon workplace investigations by courts and tribunals. As such, investigators must take a trauma-informed approach when necessary.

Social Justice Movements

To give this some context, there have been a number of social justice movements over the years, such as MeToo, Black Lives Matter, and Stop Asian Hate, resulting in a significant increase in harassment and discrimination complaints in the workplace.

When these complaints are brought forward with respect to discrimination, sexual harassment, or workplace harassment generally, employers should be aware that the complainants could be traumatized not only by the conduct in the workplace, but by conduct in all aspects of their lives.

When it comes to conducting trauma-informed investigations, it is crucial for investigators to be trained on using a "trauma-informed approach". This means that investigators must be able to recognize and take into consideration that the credibility and reliability of participants in the investigation process, who have experienced trauma, may be affected.

Credibility and Reliability Assessment

Credibility and reliability are distinct concepts. Credibility relates to a witness’ sincerity, candour, and truthfulness. On the other hand, reliability relates to the factual accuracy of the witness’ evidence and considers the witness’ ability to accurately recall and recount events in issue.

The credibility and reliability assessment was a key consideration for the HRTO in granting one of its largest damages awards in the case of A.B. v. Joe Singer Shoes Limited ["Joe Singer"]. In this case, the Tribunal awarded $200,000 to the Applicant for the pain, suffering, and sexually harassing conduct she endured for over 20 years by the respondent, Mr. Singer. This was a "he said, she said" case – there were no direct witnesses to Mr. Singer’s conduct.

The Tribunal preferred the Applicant’s evidence over Mr. Singer’s, despite significant gaps in the Applicant’s memory and, at times, only limited details in her descriptions of Mr. Singer’s behaviour. Although the Applicant’s evidence was unreliable, the HRTO felt that the Applicant was more credible than Mr. Singer. The Tribunal’s credibility assessment was informed in part by medical evidence indicating that the Applicant suffered from depression and post-traumatic stress disorder, which had a significant impact on her memory.

In seeking to overturn the Tribunal’s decision at the Ontario Superior Court of Justice (the "OSCJ"), Mr. Singer’s counsel argued that the Tribunal did not take into account several inconsistencies with the Applicant’s evidence when assessing her credibility. For example, the Applicant 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 the Applicant stated she did in fact sleep well.

The OSCJ upheld the Tribunal’s credibility assessment and ultimate outcome, finding that although the Applicant had gaps in her memory and inconsistencies in her evidence, these were not signs of falsification.

The Bottom Line

This decision is an important one for employers to take note of, because it represents a rare occurrence where the courts assessed the impact of trauma on the credibility and reliability of a witness’ testimony. Although there was no workplace investigation conducted in this matter, this case is important for workplace investigators given that the HRTO provided guidance on how it will assess the credibility and reliability of complainants who have experienced trauma. A deficient credibility and reliability assessment can significantly impact the entire investigation process and ultimately, expose employers to costly legal liabilities.

Trauma and Memory Loss: How This Could Effect Credibility in a Workplace Investigation

Workplace investigators are highly dependent on individual memories, and routinely want to know the "who, what, when, where, why, and how" from witnesses that are interviewed. However, following a trauma, a person may only have fragmented memories, or memory gaps and inconsistencies.

One of the reasons why damage awards at the Ontario Human Rights Tribunal ("HRTO") have significantly increased over the years, is because of the complex and technical requirements involved in conducting an adequate and impartial investigation, as well as the level of scrutiny placed upon workplace investigations by courts and tribunals. As such, investigators must take a trauma-informed approach when necessary.

Social Justice Movements

To give this some context, there have been a number of social justice movements over the years, such as MeToo, Black Lives Matter, and Stop Asian Hate, resulting in a significant increase in harassment and discrimination complaints in the workplace.

When these complaints are brought forward with respect to discrimination, sexual harassment, or workplace harassment generally, employers should be aware that the complainants could be traumatized not only by the conduct in the workplace, but by conduct in all aspects of their lives.

When it comes to conducting trauma-informed investigations, it is crucial for investigators to be trained on using a "trauma-informed approach". This means that investigators must be able to recognize and take into consideration that the credibility and reliability of participants in the investigation process, who have experienced trauma, may be affected.

Credibility and Reliability Assessment

Credibility and reliability are distinct concepts. Credibility relates to a witness’ sincerity, candour, and truthfulness. On the other hand, reliability relates to the factual accuracy of the witness’ evidence and considers the witness’ ability to accurately recall and recount events in issue.

The credibility and reliability assessment was a key consideration for the HRTO in granting one of its largest damages awards in the case of A.B. v. Joe Singer Shoes Limited ["Joe Singer"]. In this case, the Tribunal awarded $200,000 to the Applicant for the pain, suffering, and sexually harassing conduct she endured for over 20 years by the respondent, Mr. Singer. This was a "he said, she said" case – there were no direct witnesses to Mr. Singer’s conduct.

The Tribunal preferred the Applicant’s evidence over Mr. Singer’s, despite significant gaps in the Applicant’s memory and, at times, only limited details in her descriptions of Mr. Singer’s behaviour. Although the Applicant’s evidence was unreliable, the HRTO felt that the Applicant was more credible than Mr. Singer. The Tribunal’s credibility assessment was informed in part by medical evidence indicating that the Applicant suffered from depression and post-traumatic stress disorder, which had a significant impact on her memory.

In seeking to overturn the Tribunal’s decision at the Ontario Superior Court of Justice (the "OSCJ"), Mr. Singer’s counsel argued that the Tribunal did not take into account several inconsistencies with the Applicant’s evidence when assessing her credibility. For example, the Applicant 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 the Applicant stated she did in fact sleep well.

The OSCJ upheld the Tribunal’s credibility assessment and ultimate outcome, finding that although the Applicant had gaps in her memory and inconsistencies in her evidence, these were not signs of falsification.

The Bottom Line

This decision is an important one for employers to take note of, because it represents a rare occurrence where the courts assessed the impact of trauma on the credibility and reliability of a witness’ testimony. Although there was no workplace investigation conducted in this matter, this case is important for workplace investigators given that the HRTO provided guidance on how it will assess the credibility and reliability of complainants who have experienced trauma. A deficient credibility and reliability assessment can significantly impact the entire investigation process and ultimately, expose employers to costly legal liabilities.

When there is a risk that a party to an investigation has experienced trauma, such as harassment, discrimination, or sexual harassment, investigators should consider using a "trauma-informed approach". Trauma may impact the presentation of evidence, interpretation of events, and response to the alleged discriminatory conduct, which may diminish a witness’ credibility and reliability.

Given the inherent complexities and sensitivities of such allegations, it is highly recommended that employers hire investigators trained in conducting anti-oppressive and trauma-informed investigations in order to minimize the exposure to costly legal liabilities (such as in the Joe Singer case) and reputational harm.

At Hyde HR Law, we offer expert services in conducting third-party trauma-informed investigations, in addition to advising employers on how to navigate the internal investigation process. Please do not hesitate to contact us.

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