December 4, 2019

The Divisional Court recently released its judicial review of a pivotal Human Rights Tribunal decision in Joe Singer Shoes Limited v A.B., 2019 ONSC 5628.

In 2018, the Ontario Human Rights tribunal awarded $200,000 to an Applicant who endured prolonged sexual harassment, sexual abuse and sexual assault at the hands of her employer, setting the bar as one of the highest damages awards from of the tribunal to date.

In A.B. v Joe Singer Shoes Limited, 2018 HRTO 107, the Applicant worked for Singer Shoes and lived in the apartment above the store with her son. The Respondent, Paul Singer (“Mr. Singer”), was the operating mind of Singer Shoes, and the Applicant’s landlord.

Over the course of 18 years, the Applicant endured a sequence of horrific sexual harassment, sexual abuse, and sexual assault at the hands of Mr. Singer, both while at work and in her home.

The Vice-Chair found in favour of the Applicant in what came down to a “he said, she said” case, as there were no direct witnesses to Mr. Singer’s misconduct. Mr. Singer denied all allegations during his testimony.

The Vice-Chair preferred the Applicant’s evidence, despite some memory gaps and inconsistencies in her testimony.

Mr. Singer applied for judicial review of the Vice-Chair’s decision on the basis that the Vice-Chair’s approach to the evidence of both the Applicant and the Respondent was procedurally unfair and challenged the result of the Vice-Chair’s approach as being unreasonable.

Trauma-Related Memory Impairment

While there is sound social and scientific research on the effect of trauma on memory, this decision represents a rare occurrence where the Courts’ assess of the impact of trauma on credibility and reliability of a witness’s testimony.

In upholding the Vice-Chair’s credibility assessment and valuation of the evidence and dismissing the application, the Divisional Court held that decision makers may rely on expert opinion evidence from treating physicians to support a finding that certain behavioural symptoms are consistent with sexual or physical abuse.

For example, the Applicant’s treating physicians testified that poor memory and inconsistencies, as well as a delay in reporting abuse, are commonly found in patients who have experienced sexual or physical abuse. The Vice-Chair properly relied on this expert evidence to find that the Applicant’s faulty memory could be caused by sexual abuse, and did not preclude the Vice-Chair from finding that the Applicant’s testimony was reliable.

However, the Court made an important distinction that such expert evidence cannot be relied on to prove that an individual has, in fact, experienced abuse, only that certain behaviours are common in victims of abuse.

Take Home

In Singer Shoes, the Court recognized that traumatic experiences, such as sexual assault, can affect the way that individuals behave and react to certain situations. It can also explain behaviours that may seem counter-intuitive. In that regard, medical evidence, particularly in the form of expert medical opinions, will likely be required to explain and establish this point.

Overall, Singer Shoes, stands for the proposition that where medical evidence establishes that a person’s memory loss is the result of trauma-related mental illness, inconsistencies in their evidence will not necessarily undermine that witness’s credibility at trial.