When making findings of fact in a workplace investigation, it is crucial for investigators to assess the credibility of witnesses in the context of the evidence as a whole. Importantly, a finding of a lack of credibility in one aspect of a witness’s testimony does not automatically render the entirety of their evidence as non-credible.

In the recent decision of Aslam v Ontario College of Pharmacists [Aslam], the Ontario Divisional Court (the “Court”) overturned a finding of professional misconduct against a pharmacist, stating that the assessment of the complainant’s credibility was flawed.

Background

In Aslam, the appellant appealed a decision from the Discipline Committee of the Ontario College of Pharmacists (the “Committee”), which found the appellant guilty of professional misconduct. The complainant alleged that the appellant sexually harassed and assaulted her. The complainant presented evidence, which included her testimony during the proceedings and audio recordings.
The Committee accepted parts of the complainant’s evidence and found the appellant guilty of misconduct in relation to two of the seven alleged incidents:

• an incident where the appellant attempted to grab the complainant’s breast, reach into her pants and shirt, and placed her hand on his groin area; and
• unwelcome touching and advances towards the complainant on various occasions.

The Committee dismissed the remaining allegations because the complainant’s evidence was not found to be reliable enough to support a finding of guilt. The Committee found inconsistencies in the complainant’s testimony regarding certain allegations noted that she had previously made unsubstantiated allegations of sexual misconduct against other employees at the store where she worked.

The appellant subsequently appealed the Committee’s decision to the Divisional Court, challenging the decision on a number of grounds, including that the Committee’s assessment of the complainant’s credibility and reliability was flawed and that the findings of fact lacked sufficient evidentiary support.

Division Court Decision

In its decision, the Court held that although the Committee correctly stated the legal principles for assessing the credibility of witnesses, it failed to consider important pieces of evidence that could significantly impact the overall credibility and reliability of the complainant. The Court noted that the Committee “compartmentalized the evidence charge by charge” and failed to consider it as a whole when assessing the complainant’s reliability regarding the charges of misconduct. The Court emphasized that any concerns about the complainant’s reliability should have been viewed in the context of her reliability as a whole, rather than being limited to one particular incident.

Takeaways

When investigating allegations of harassment, particularly sexual harassment, it is important to bear in mind that inconsistencies in a witness’s evidence do not automatically undermine the credibility of their evidence. This is especially true when the witness may have suffered trauma in relation to the alleged incidents.

Employers should be aware that when assessing the credibility and reliability of a witness to make findings of fact, all of the witness’s evidence should be assessed in a holistic manner, rather than in isolated segments. Furthermore, the assessment of evidence should consider aspects of the witness’s credibility that may call into question the reliability of their evidence, as a witness can be credible overall but provide unreliable evidence.

This blog is provided as an information service and summary of workplace legal issues.

This information is not intended as legal advice.