Tribunal ruling provides helpful analysis of witness credibility

By Tony Poland, LegalMatters Staff • A recent decision by the Human Rights Tribunal (HRTO) is notable for providing insight into assessing witness credibility, says Toronto employment lawyer Ellen Low.

The ruling in the case of a woman who alleged her employer discriminated against her based on her age and sex and created a poisoned work environment by condoning harassment in the workplace has much to unpack, says Low, principal of Ellen Low & Co.

But what really caught her attention was the analysis of witness testimony, she says.

“Often, tribunal matters don’t really dig into the test for credibility, an issue that comes up frequently,” Low tells LegalMattersCanada.ca. “In this instance it does, which is really helpful and enlightening because the decision largely turns on the credibility of the various witnesses in a case which centred around what was said, what wasn’t said and who said what.

Comments about credibility noteworthy

“This case is worth examining because of the issues involved and the damages awarded,” she adds. “However, because I look at these issues regularly, I found the more interesting aspect was the comments about credibility.  In my experience, tribunals don’t often articulate their decision-making process.”

The HRTO hearing was told that a 53-year-old woman was hired as the executive assistant to a CEO.

During her brief employment, the woman said the CEO “made inappropriate and unsolicited comments directed to her and other employees.”

According to the judgment, she testified that in her first week, her boss “looked her up and down and said, ‘I wonder what you will look like in 10 years.’”

“I find that this comment … engages both the applicant’s sex and age in this case as intersecting grounds of the [Human Rights] Code, because the behaviour sexualizes the applicant and at the same time comments on her aging process and how this may impact her looks in the future as an older female,” tribunal vice-chair Romona Gananathan wrote in the ruling.

‘Would refer to the staff as little girls’

The woman testified that the CEO “would refer to the staff as ‘little girls’ or the IT staff as ‘boys,’ and that she felt it was inappropriate to refer to colleagues in the workplace this childish way.”

“Most of us can agree that it is known or ought to be known what behaviour is unwelcome. It is pretty obvious,” says Low, who was not involved in the case but comments generally. “But sometimes we struggle with that standard.”

The woman testified that within a week of working at the company, she began to feel uncomfortable with her boss’s behaviour. She told the tribunal he “asked younger female colleagues about their relationship status and whether they would date him.”

She testified that during her brief employment, she did not receive any negative feedback regarding her performance or work experience. In fact, about two weeks after she started, she was called into the CEO’s office and given a $1,500 a year pay raise. Two days later, she received a letter of termination stating, “after careful consideration we have concluded that your experiences, although stellar, are too senior for what our actual needs are.”

Denied the allegations

The CEO denied the allegations and “submits that the comments were never made, and the applicant was never subjected to differential treatment.”  The company argued “the applicant was a probationary employee with less than one month of service, and that the termination had nothing to do with the applicant’s age [but] because she was ‘too experienced to work at a small company,’ and ‘not the right fit for the corporate culture of the company.’

Low says the case, as many do, came down to who to believe, with a focus on how much weight to put on the evidence given by a company employee.

“How do we deal with the credibility and testimony of people who are still employed within the organization because presumably they have a self-interest in staying employed,” she says.

Indeed, the tribunal vice-chair wrote “this Decision turns largely on my assessment of the credibility of the witnesses,” noting “factors the Tribunal has applied as relevant in assessing credibility include corroborative evidence from other witnesses, and the extent to which witnesses may have an interest in the outcome of the case, or have self-interest in testifying for one of the parties.”

Examined contradictions in the evidence

Low pointed to a passage in the ruling in which the vice-chair “took the time to look and evaluate the different pieces of the evidence, the contradictions in that evidence and then why the Tribunal preferred the applicant’s evidence over that of, for example, the company’s COO.”

In the end, the HRTO found the CEO’s “testimony to be exaggerated, contradictory, and evasive.”

The woman was ultimately awarded $13,000 for lost wages and $25,000 for injury to dignity, feelings, and self-respect. Low notes that the case began in June 2019 and the judgment was not rendered until December 2024 so the tribunal added pre- and post-judgment interest, which further enhances the settlement.

Low says the analysis in the case is helpful to the employment bar and “even those who are considering self-representation in front of the tribunal because it points to what is actually going to be evaluated in a he said/she-said situation.”

Damages for injury to dignity, feelings, self-respect

She says another notable aspect about the judgment was the $25,000 award for injury to dignity, feelings, and self-respect.

“She got the high end of the scale in terms of compensation for Injury to dignity, feelings and self-respect, Low says. “It is not a huge amount of money, but the amounts for human rights damages haven’t really increased in the past decade. So that, to me, was the tribunal giving the CEO a very clear message that his conduct was clearly discriminatory and not acceptable.”

The ruling should serve as a warning to others, Low says.

“Companies should be aware of the fact that the tribunal will take these issues seriously and the financial consequences are not minimal,” she explains. “When decisions like this are rendered, it is always a good idea to review your internal policies and your training to ensure that everything is up to date. Do your mandatory human resources training. Turn your mind to how your words, conduct and actions may impact others.”