Effect Of Trauma On Poor Memory And Credibility Addressed By Divisional Court

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...