Employees who experience sexual or other harassment or violence in the workplace should not be discouraged from reporting to their employer simply because no one else witnessed the harassment or violence. He said/she said concerns are no reason to avoid making a complaint to ensure the harasser is properly investigated and, if appropriate, punished.
Under the new anti-workplace harassment and violence laws in Ontario, effective January 1, 2017, incidents of harassment in the workplace must be investigated by employers. The outcome of the investigation must also be reported to both the victim and the harasser. Confidentiality must be maintained at all times.
However, these changes to Ontario’s Occupational Health and Safety Act, designed to minimize, if not eliminate, workplace sexual and other harassment, do not require that a complaint’s evidence of the harassment be corroborated before a finding of harassment can be made.
Similarly, the Courts and Human Rights Tribunal in Ontario do not require corroboration before a finding of harassment can be made. The law recognizes that often this type of conduct, particularly sexual harassment or violence, occurs in a private setting, often where no witnesses are present.
For example, the Supreme Court recognizes that:
“Corroborative evidence is always helpful and does strengthen the evidence of the party relying on it as I believe Rowles J.A. was implying in her comments. However, it is not a legal requirement and indeed, may not be available, especially where alleged incidents took place decades earlier. Incidents of sexual assault normally occur in private.”
Ontario’s Human Right Tribunal also recognizes that:
“There were, however, problems with the investigation conducted by Professional Standards. Det. Young, the investigator assigned to investigate all three matters testified that he had not investigated an allegation of sexual harassment and appeared not to have been given any special training in such matters. He concluded that because there had not been any “independent evidence” the applicant’s allegations could not be “substantiated” and recommended that the matter not proceed to a disciplinary proceeding.
This requirement for “independent evidence” ignores the fact that many allegations of discrimination and harassment take place in private and often there is no evidence “independent” of the two parties to the incidents. Even where witnesses are present, there may be compelling reasons for them to not be forthcoming in an investigation.”
Accordingly, while corroborative evidence will, in most cases, be helpful in the factual investigation, it is not necessary. The Court or other decision-maker should properly consider the veracity, credibility and reliability of the evidence of the victim, alleged harasser and others who may have knowledge of the circumstances.
Merely because a victim cannot corroborate what he or she experienced at the hands of a harasser is certainly no reason to avoid reporting the sexual harassment or violence to ensure the investigator, Court or other decision-making body properly examines the circumstances and makes the necessary findings.
