Early evidence gathering helps with challenge of proving workplace sexual harassment

Sexual harassment is a broadly defined term and encompasses anything from a physical assault, to inappropriate sexual jokes, innuendo, leering or other forms of unwelcome behaviour of a sexualized nature. The complainant is not required to establish that s/he expressly objected to the harassing conduct, but merely that the respondent knew or ought to have known that the conduct was unwelcome.

In high profile cases of sexual harassment and sexual assault, Harvey Weinstein, Bill O’Reilly, Bill Cosby, Jian Ghomeshi, among others, the court of public opinion is swift to render judgment based on a pattern of unproven allegations. It is reasonable to infer given the preponderance of women coming forward with similar stories of sexual harassment, the alleged perpetrator probably did it.

However, successfully proving sexual harassment is a highly difficult task for any seasoned lawyer. In the civil context, the complainant bears the onus of proving that the sexual harassment occurred on a balance of probabilities. While this is a far less rigorous evidentiary standard than in the criminal context, convincing an adjudicator that unwelcome sexual harassment more likely than not occurred is, in most cases, far from a slam dunk.

Clear, convincing and cogent evidence is required because of the seriousness of the allegations and the potential impact upon the parties involved. The complainant must provide sufficient evidence, detail or context to prove that the harassment occurred. This standard of proof has been satisfied in cases where a complainant’s own story was buttressed by other evidence, such as an internal complaint of harassment with the employer, investigation notes, corroborating witnesses, similar harassment complaints by fellow colleagues, handwritten notes, or e-mails (see for example, Arias v. Desai 2003 HRTO 1; Morgan v. University of Waterloo 2013 HRTO 1644). But very often, there is no smoking gun, no corroborating witnesses, direct or circumstantial evidence. In many cases, there is little more than the complainant’s own testimony of what occurred. In a classic he-said-she-said case, the trier of fact is left to determine whether the complainant or respondent’s version of events is “in greater harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.” (Faryna v. Chorny [1951] B.C.J. No. 152.) Unless there is a material difference in the believability of the witnesses, the complainant stands a real risk of losing his/her case.

Further complicating matters is the added challenge that many complainants delay reporting. Victims of harassment are often reluctant to complain to their employer out of fear of reprisal or stalled career progression, particularly if the offender is in a position of authority or power in the company. Allegations of sexual harassment are often launched long after the offending conduct took place and most commonly often after termination of the employment relationship.

With the passage of time, the complainant’s ability to recall specific details of various incidents can undermine the credibility or reliability of the complainant’s evidence. Memory deficits can lead to inconsistencies in recounting their story, inability to provide enough detail or context about their story, or omitting important facts. These hurdles can fatally undermine the reliability of the complainant’s evidence (see Romero v. Mennonite Brethren Senior Citizens Home 2013 HRTO 788; Law v. Noonan 2013 HRTO 437; Pakarian v. University of Toronto 2012 HRTO 156; Ornelas v. Casamici Restaurant 2010 HRTO No. 1078).

Furthermore, if the trier of fact is not persuaded by the complainant’s explanation for lengthy delay, in the context of ongoing professional interactions with the respondent, this can prove fatal to the case (see Soheil-Fakhaei v. Canadian Business College 2012 HRTO 172; Howard v. deRuiter 2004 HRTO 8; Lavoie v. Calabogie Peaks 2012 HRTO 1237).

There are various ways to mitigate against some of these evidentiary hurdles. If your client is still in the workplace and harassment is occurring, they should be reporting to their employer. This immediately triggers the employer’s legal duty to conduct a thorough and balanced investigation and stop the harassment, if substantiated.

On an evidentiary level, the employer’s investigation file and evidence gathered through the course of that investigation create a crucial evidentiary record. Disclosing to a trusted friend or colleague, taking explicit notes of relevant events, seeing a medical professional or therapist can also form part of an important evidentiary record that details a chronology of events. S/he should also document their objection to any ongoing harassment that is occurring. Speaking to someone in the workplace about these issues may also reveal that there are others who have also experienced similar harassment.

If the individual has already left the workplace, gathering evidence becomes more challenging. Counsel should nevertheless have the individual provide a written detailed and complete chronology of events, including dates, places, events and relevant witnesses. They should also set out in detail their reasons for delay. This can serve as an important aid to refreshing their memory as time passes. Where possible, obtain written statements from others who may be able to corroborate the complainant’s version of events.

With the growing media focus on workplace sexual harassment, we may see a real shift in the number of people litigating sexual harassment complaints. The early stages of evidence gathering may tip the balance in your client’s favour.

“Previously published by The Lawyer’s Daily (www.thelawyersdaily.ca) a division of LexisNexis Canada”

By |2020-09-03T03:57:48-04:00September 10th, 2019|Article-All|0 Comments

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