Virtual Workplace Investigations: The "Next Normal"- Credibility Assessment In Virtual Settings

• Published date: 21 February 2023
• Subject Matter: Employment and HR, Litigation, Mediation & Arbitration, Employment Litigation/ Tribunals, Trials & Appeals & Compensation
• Law Firm: Borden Ladner Gervais LLP
• Author: Ms Vanessa Lapointe

This is the third part in a three-part series

In the first part of our series on virtual workplace investigations, we discussed how the COVID-19 pandemic has impacted workplace investigations, and why proceeding virtually can be an attractive option.

In part two, we took a closer look at virtual investigation best practices.

Part III - Credibility assessment in virtual settings

Virtual investigations and hearings have become a standard but some still wonder if the benefits of in-person proceedings are lost. How can we read a witness when screens, kilometres and time zones stand in the way?

In this third installment, we comment on the assessment of credibility of witnesses in virtual settings. We explore how body language and demeanour, which proponents of in-person proceedings believe is best done in person, may even mislead the investigator, and outline why it is not necessary to be in the presence of a witness to properly assess their credibility for the purpose of conducting a thorough workplace investigation.

The big question: are humans effective lie detectors?

Demeanour and credibility in the court system

During interviews, investigators generally tend to look at multiple cues from the witness, including facial expression, body language and tone of voice to assess credibility.

The Supreme Court of Canada observed that there is a "deeply rooted presumption in our legal system that seeing a witness's face is important to a fair trial, by enabling effective cross-examination and credibility assessment".¹ While this statement applied in the context of trials before courts, considering that credibility assessment requires a visual analysis of non-verbal demeanour by looking at the witness's facade has certainly been transposed to the world of administrative investigations.

Facial cues fall within the general demeanour evidence concept at common law, which includes the behaviour, conduct and mannerism of witnesses and is used to make findings of credibility during trials. Canadian courts have nevertheless been cautious about overly relying on demeanour evidence in making credibility assessment. Although judges may consider it, drawing conclusions based on demeanour at trial in the absence of a "reference point" for how a person "normally expressed [them]selves" was in one instance found to be troubling by the Ontario Court of Appeal, and even a reviewable error.²

Virtual assessment

In a recent case rendered during the COVID-19 pandemic, the defendant had...