CITATION: Joe Singer Shoes Limited v. A.B. 2019 ONSC 5628

DIVISIONAL COURT FILE NO.: 149/18 DATE: 2019/10/04

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

ELLIES R.S.J., KITELEY AND BACKHOUSE JJ.

BETWEEN:

JOE SINGER SHOES LIMITED, PAUL SINGER, AND BUY-A-HAMMER INVESTMENTS INC.

Applicants

– and –

A.B.

Respondent

Frank Addario and Samara Secter, for the Applicants

David Baker and Kimberly Srivastava, for the Respondent

• • and –

HUMAN RIGHTS TRIBUNAL OF ONTARIO

Respondent

Jason Tam, for the Respondent

HEARD at Toronto: June 4, 2019

Ellies R.S.J.

OVERVIEW

[1] In this application for judicial review, Paul Singer and the corporations he controls seek to quash the decision of Vice-Chair D. Kershaw of the Human Rights Tribunal of Ontario (the "Tribunal") in which the Vice-Chair held the applicants jointly and severally liable for violations of the Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”). The Tribunal ordered the applicants to pay $200,000 plus pre-judgment interest to the respondent, A.B., for sexual harassment and for creating a poisoned work environment.

[2] The Vice-Chair accepted Ms. B.’s testimony that, over the course of her employment, she had been subjected to discriminatory behaviour, sexual harassment, and to a long series of sexual assaults that progressed from touching to intercourse by Mr. Singer, who denied the allegations.

[3] The applicants challenge the Vice-Chair’s approach to the evidence of Ms. B and Mr. Singer as being procedurally unfair and challenge the result of her approach as being unreasonable.

[4] For the following reasons, I find the Vice-Chair’s approach to the evidence was fair and took into account the circumstances of this case, in which there was no issue that Ms. B. suffered from significant underlying cognitive and memory problems. I conclude that the Vice-Chair’s decision fits within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law and that her reasons for reaching that decision are intelligible, transparent, and justifiable. Therefore, I would dismiss the application.

FACTS

[5] Ms. B. was born in Thailand and came to Canada in 1979. She began working for Joe Singer, Paul Singer’s father, at his shoe store in 1983. After Joe Singer passed away, Paul Singer took over ownership and management of the store as the directing mind of the applicant, Joe Singer Shoes Limited.

[6] Ms. B. was married at the time she began working for Mr. Singer, Sr. Her son was born five years later, in 1988. In 1989, Ms. B. and her husband separated. Shortly afterward, she and her son, who suffers from epilepsy, moved into an apartment above the shoe store. Her landlord was Buy-A-Hammer Investments Inc., a company controlled by Mr. Singer.

[7] Ms. B. worked for the shoe store until she fell from a ladder at work one day in January 2007, breaking two ribs and hitting her head. As a result of the fall, Ms. B. became involved with the Workplace Safety and Insurance Board (the “WSIB”). Although she was granted benefits by the WSIB, those benefits were suspended in April 2008. As the Vice-Chair found, it is unclear whether Ms. B. ever returned to work again.

[8] In November 2007, Ms. B. received an eviction notice from her landlord for non-payment of rent. In December 2007, the landlord commenced proceedings before the Landlord and Tenant Board (the “LTB”) to evict Ms. B. In January 2008, Ms. B. went to the police to report Mr. Singer’s sexual harassment and sexual assault. Although charges were laid, they were later withdrawn for reasons never made clear before the Tribunal.

[9] At about the same time as the eviction proceedings were commenced, Ms. B. confronted Mr. Singer about the sexual abuse she had suffered. According to Mr. Singer, Ms. B. demanded $25,000 “for a sex thing.” According to Ms. B., she told Mr. Singer only that she was going to sue him.

[10] According to Mr. Singer, at the LTB hearing, the landlord agreed to waive nearly $10,000 in outstanding rent if Ms. B. and her son moved out of the apartment by the end of February, which they did.

[11] In December 2008, another WSIB application was filed on behalf of Ms. B, this time for emotional injury due to the abuse she had suffered at the hands of Mr. Singer at work and in her home above the store.

[12] In January 2009, while the second WSIB application was still pending, Ms. B. commenced the proceedings that are the subject of this application. However, the Tribunal application was deferred while Ms. B.’s WSIB claim was being dealt with. That claim was denied in June 2009 because the WSIB concluded that the assaults took place in Ms. B.’s home, and not at the workplace. Ms. B. objected to that decision, but the objection was not successful. During the argument of this application, we were advised that Ms. B.'s appeal of the denial of her claim had been allowed.

[13] Ms. B.’s 2009 application to the Tribunal was re-activated in January 2016 and proceeded to a hearing that culminated with the Vice-Chair’s decision dated January 24, 2018 (2018 HRTO 107).

The Hearing

[14] The hearing took place over six days, following which the parties provided written submissions. In addition to testifying herself, Ms. B. called evidence from her son and from two health professionals, namely Dr. Catherine Bart and Dr. Dennis Kussin. Dr. Bart is a psychologist and Dr. Kussin is a psychiatrist. Both professionals began treating Ms. B. in connection with the application for WSIB benefits she filed after her fall in 2007. Dr. Kussin was still treating Ms. B. at the time of the hearing.

[15] Ms. B. was 59 at the time she gave evidence. She testified that Mr. Singer first began sexually harassing her by making sexual comments. The harassment progressed from unwelcome comments to unwanted sexual contact. The contact began with Mr. Singer calling Ms. B into his office and trying to kiss her. Eventually, Mr. Singer succeeded at that endeavour. Over time, the sexual contact progressed from kissing to touching and ultimately from oral sex to sexual intercourse. Ms. B. testified that the oral sex took place about two times per month and the sexual intercourse about two to three times per month. She said that the contact occurred in Ms. B.’s office, the basement of the store, and in her apartment. She testified that Mr. Singer would come into her apartment without knocking and sexually assault her when her son was not there.

[16] Ms. B. testified that Mr. Singer had video surveillance cameras at the store that he could monitor from his office. She said that on a number of occasions, Mr. Singer called her up to his office after the customers had left the store. When she got there, he would be playing pornography on the television and would force her to perform oral sex upon him.

[17] Ms. B. testified about certain incidents in detail. One such incident happened in the basement. On that occasion, Mr. Singer pushed her down onto her knees on the cement floor and did the same thing as he forced her to do in his office, this time ejaculating on her face.

[18] Ms. B. also testified that on another occasion, Mr. Singer showed her a photo on his computer that he had taken of her for advertising purposes, on which he had superimposed a penis to make it look like it was in her mouth.

[19] According to Ms. B., the sexual harassment began in approximately 1990 and continued until January 2008. It ended when she made a complaint to the police the day after Mr. Singer again entered her apartment without being invited and forced her to have sexual intercourse with him. Ms. B. alleged that the applicants reacted to her complaint to the police by denying her a parking spot for her car, failing to return her to work, and evicting her from her apartment.

[20] Ms. B. began seeing Dr. Bart in October 2008, in connection with her application for WSIB benefits. Dr. Bart testified that, in her opinion, Ms. B. was suffering from Post-Traumatic Stress Disorder ("PTSD") resulting from the sexual assaults she experienced. She queried whether Ms. B. had also suffered a brain injury from the fall she experienced in 2007.

[21] Dr. Kussin was more definitive in his diagnosis. He testified that Ms. B. had PTSD from prolonged sexual trauma and from a head injury. He testified that this explained the cognitive deficits Ms. B. was suffering, including loss of memory and orientation, which were getting worse over time.

[22] In addition to hearing viva voce testimony from Dr. Kussin, the Vice-Chair admitted a letter dated January 19, 2016, from Dr. Kussin, in which he wrote (record, tab 59):

I believe that [Ms. B.] is telling the truth. She has been consistent in her story. I have never found her to be untruthful over the years I have seen her.

[23] Mr. Singer was the only witness called to testify on behalf of the applicants. He denied Ms. B.’s allegation that he harassed her, verbally or sexually. I will deal in greater detail with his evidence when I address the applicants' allegation that his evidence was treated with greater scrutiny than that of Ms. B.

The Vice-Chair’s Decision

[24] The Vice-Chair's reasons comprise 181 paragraphs and span 44 pages. She began them by setting out the allegations against the applicants, the relevant provisions of the Code, and her conclusion. She then turned to the evidence, which she set out at length.

[25] After setting out the evidence, the Vice-Chair began her analysis by reminding herself that the burden of proof on Ms. B. was to prove the allegations on a balance of probabilities with evidence that was “sufficiently clear, convincing and cogent", citing the decision F.H. v. McDougall, 2008 SCC 53 (Reasons, para. 104).

[26] The Vice-Chair identified the important role that credibility and reliability would play in her analysis and set out the oft-cited passage from Faryna v. Chorny, 1951 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.) about the importance of what witnesses say and not just how they say it.

[27] The Vice-Chair reminded herself of the important distinction between credibility and reliability and that, with good reason, she was free to accept some, none or all of the witness’ testimony (R. v. R.E.M., 2008 SCC 51, para. 65).

[28] The Vice-Chair acknowledged that Ms. B. suffered from memory lapses. She found that, as a result, Ms. B.’s evidence was not always reliable. However, she concluded that it was credible, notwithstanding that it contained certain contradictions. On the other hand, the Vice-Chair found Mr. Singer’s evidence was not credible.

[29] Ultimately, the Vice-Chair concluded that Mr. Singer sexually harassed and assaulted Ms. B. She also found that Mr. Singer had created a poisoned work environment. However, the Vice-Chair rejected Ms. B.’s allegations of reprisal, holding that the eviction of Ms. B. had begun before she went to the police, that Ms. B. had not raised the issue of the parking spot in her complaint to the Tribunal, and that she had not introduced any evidence with respect to the allegation that the applicants had failed to return her to work.

[30] The Vice-Chair concluded her analysis by considering the liability of the corporate applicants and whether a public interest remedy was necessary. She concluded that it was not. Instead, she found the corporate applicants jointly and severally liable for a monetary remedy and ordered that the applicants pay the sum of $200,000, together with pre-judgment interest from January 1, 2008 to the date of the decision as compensation for injury to Ms. B.'s dignity, feelings and self-respect.

ISSUES

[31] The applicants make three main challenges to the Vice-Chair’s decision. They argue:

(1) that the Vice-Chair’s approach to the credibility of Ms. B was unreasonable in a number of respects;

(2) that the Vice-Chair’s approach to the evidence was procedurally unfair because she subjected Mr. Singer’s evidence to greater scrutiny than that of Ms. B.; and

(3) that the Vice-Chair unreasonably relied on Mr. Singer’s demeanor during the hearing as evidence that he created a poisoned work environment.

[32] In her written materials, Ms. B. raised two additional issues. First, she took the position that the application for judicial review should be dismissed because the applicants had failed to first request a reconsideration of the Tribunal’s decision, as this court has held they must: Jones Lang Lasalle Real Estate Services Inc. v. Human Rights Tribunal of Ontario and Brian Graff, 2015 ONSC 4005. However, in oral argument, Ms. B. modified her position. She asked, instead, that the court dismiss the application on the basis of prematurity only in the event that the application is not dismissed on its merits.

[33] In addition, Ms. B. challenged the date from which the Vice-Chair awarded pre-judgment interest and asked that this Court amend the decision to award interest from January 1, 1990 rather than January 1, 2008. However, the court declined to hear argument on this issue as a result of the fact that Ms. B. has an outstanding request for reconsideration before the Tribunal relating to the same issue.

[34] Before I address the remaining issues, I will address another issue that bears highlighting in this case, namely the standard of review.

ANALYSIS

Standard of Review

[35] As all of the parties agree, the standard of review of the Vice-Chair’s decision is one of reasonableness. Reasonableness in the context of judicial review is concerned mostly with the existence of justification, transparency and intelligibility in the decision-making process and whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 47.

[36] The nature of the allegations in this case can make it difficult to remember this standard of review. Allegations of sexual assault are most frequently dealt with in the context of a criminal trial, where the accused is presumed innocent and the burden on the Crown is that of proof beyond a reasonable doubt. As the Vice-Chair quite correctly reminded herself at the beginning of her analysis in this case, however, the burden on Ms. B. was to prove her allegations only on a preponderance of probabilities.

[37] It is important to bear in mind that the range of reasonable outcomes may not be the same in a case requiring proof beyond a reasonable doubt as it is in a case decided on the lower standard of proof on a preponderance of probabilities, such as this one.

Was the Tribunal's approach to assessing Ms. B.'s credibility unreasonable?

[38] The applicants maintain that the Vice-Chair's approach to the question of Ms. B.'s credibility was unreasonable for three reasons:

(a) she ignored Ms. B.'s unreliability;

(b) she relied on the opinion evidence of Drs. Bart and Kussin with respect to Ms. B's credibility to overcome her unreliability; and

(c) she used illogical and circular reasoning to bolster Ms. B.'s credibility.

[39] I am unable to agree with any of these submissions. I will explain why by addressing them in the order set out above.

Credibility v. Reliability

[40] The acceptability of a witness's evidence depends upon both the credibility of the witness and the reliability of that witness's testimony. When we speak of a witness's credibility, we are referring to that witness's willingness to tell the truth. When we speak of the reliability of a witness's testimony, we are referring to the ability of that witness to perceive, recall and recount events: R. v. Morrissey (1995), 1995 3498 (ON CA), 22 O.R. (3d) 514 (Ont. C.A.), at p. 526.

[41] The applicants submit that, because this was a "two-witness" case, reliability, rather than credibility, was paramount: R. v. Norman (1993), 1993 3387 (ON CA), 16 O.R. (3d) 295 (Ont. C.A.), at p. 314. They argue that the Vice-Chair used credibility as a proxy for reliability and, for that reason, her decision was unreasonable: R. v. H.C., 2009 ONCA 56; Stefanov v. College of Massage Therapists of Ontario, 2016 ONSC 848 (Div. Ct.). I have two problems with this argument.

[42] First, I do not agree that reliability will always be paramount in a case such as this. The importance of a witness’s credibility will depend on the facts of the case. In some two-witness cases, credibility can take on as important a role as reliability. This was one of those cases.

[43] Unlike the situation in Norman, Ms. B. was not testifying about an isolated incident, but about a continuing, escalating series of events that spanned a period of roughly 18 years. Also unlike the situation in Norman, this case involved a complainant who was an adult when the assaults occurred and who was testifying about events that had ended as recently as 10 years before the hearing. The complainant in Norman was a child 13 years of age at the time of the alleged assault and was testifying about an event 18 years after it happened. Both her ability to perceive events and her ability to recall them were crucial to the case. Only the latter ability was at issue in this one.

[44] The applicants submit that Ms. B. "had cognitive problems that impaired her ability to recall, observe, and recount events" (AF, para. 34). We have not been taken to any part of the Vice-Chair's reasons, nor can I find any, in which there was any reference to evidence or a finding that Ms. B.'s ability to perceive events was impaired. The only issue with Ms. B.'s reliability as a witness was with respect to her ability to recall events. This impairment was acknowledged by Ms. B., her treating health professionals, and the Vice-Chair. At para. 114, the Vice-Chair wrote:

It was clear in this case that according to the testimony of [Ms. B.], Dr. Bart and Dr. Kussin that (sic) [Ms. B.'s] memory is fallible, or in the words used to assess testimony, not always reliable. The applicant testified openly that her memory comes and goes, that sometimes she forgets many things and some days are a blank, but also that on other days she remembers things very well.

[45] Contrary to the submissions of the applicants, however, the Vice-Chair did not find that Ms. B.'s evidence "was generally unreliable" (AF, para. 35). Instead, she held (para. 115):

In assessing [Ms. B.'s] testimony, I conclude that although it was not always reliable, it was credible, despite some contradictions. [Emphasis added.]

[46] There is no dispute that the evidence in this case clearly showed that Ms. B. had difficulties with her memory. However, unlike the situation in Norman, there was no evidence that Ms. B. suffered from false memories, as opposed to memory gaps. As I will explain in more detail below, because of Ms. B.'s memory issues, inconsistencies in her evidence lost much of their impeachment value due to the fact that there was an explanation for them other than untruthfulness. For that reason, the Vice-Chair was required to rely on other tools for assessing Ms. B.’s evidence, including the degree of detail she was able to give about certain incidents. Thus, in this case, Ms. B.’s credibility became of equal importance to the reliability of her evidence.

[47] Secondly, and in any event, the Vice-Chair did not ignore issues about the reliability of Ms. B.'s evidence. To the contrary, she addressed a significant number of challenges made by the applicants that might have affected the reliability (as well as the credibility, in some instances) of Ms. B.'s testimony. These included:

(a) the fact that Ms. B. did not report the assaults to her doctor (paras. 119-122);

(b) the fact that she told the doctor in May 2003 that she was alert, cheerful and doing well (para. 123);

(c) the fact that she told the WSIB assessors in 2008 that she was able to sleep well, whereas she testified at the hearing that she was not (paras. 124-125);

(d) the fact that she told the WSIB assessors that her injuries resulted from a fall into a shoe rack, whereas she testified at the hearing that she fell onto the floor (para. 127);

(e) the fact that Ms. B. told Dr. Bart that Mr. Singer continued to harass her in 2008 notwithstanding the fact that Mr. Singer was subject to a restraining order at the time (para.128);

(f) the fact that Ms. B. testified that numerous sexual assaults took place in her apartment, whereas her son testified that he only remembered seeing Mr. Singer once at the door of their apartment (para. 129);

(g) the fact that the WSIB dismissed her claim for traumatic mental stress because it did not find that Ms. B. was assaulted at work (paras. 130 and 131); and

(h) the fact that Ms. B.'s evidence at the hearing about when the forced sexual intercourse started differed from what was set out in her application (para. 132).

[48] Most of these challenges were resolved by the Vice-Chair in favour of Ms. B., but not all of them. In some instances, the Vice-Chair rejected Ms. B.'s evidence. This happened with respect to Ms. B.'s evidence about her sleep. It also happened with respect to Ms. B.'s evidence that the applicants terminated her tenancy in reprisal for her going to the police. The Vice-Chair dismissed Ms. B.'s claim of reprisal. Contrary to Ms. B.'s testimony, the documentary evidence clearly showed that her landlord had commenced eviction proceedings before Ms. B. went to the police in January 2008.

[49] Unlike the complainant in Stefanov, in the case at bar, Ms. B. was able to recall and recount vivid details about the sexual assaults. Ultimately, the Vice-Chair found these details to be persuasive. She wrote (at para. 144):

While [Ms. B.'s] evidence was problematic in the ways I enumerated, the preponderance of the evidence points to [Ms. B.] being credible. She was able to recall specific details of how Mr. Singer smelled, how it felt to have semen on her face and hands and how dehumanizing it was to have Mr. Singer alter a photo as he did. She also provided great detail with respect to what Mr. Singer said to her when she finally told him she would sue him. She does not deny threatening to sue him, and while [Ms. B.] appears to have mixed up events and alleged that Mr. Singer commenced eviction proceedings after she went to the police, which is not the case, it is likely that he did so after she threatened to sue him.

[50] Thus, contrary to the applicants' submission, the Vice-Chair did not allow credibility to trump reliability. Instead, she held that, notwithstanding certain issues with respect to the reliability of Ms. B.'s evidence, it was worthy of belief. I can see nothing unreasonable in her approach as it relates to reliability.

The Opinion Evidence of Dr. Bart and Dr. Kussin

[51] The applicants submit that the Vice-Chair unreasonably relied upon the expert evidence of Drs. Bart and Kussin in finding that Ms. B was a credible witness. They contend that she used their opinions that Ms. B. was truthful to "fix" her unreliability.

[52] A witness's opinion that another witness is being truthful is generally not admissible for the purpose of bolstering the credibility of the first witness: Sopinka, Lederman & Bryant, The Law of Evidence in Canada, 5th ed. (Markham, Ont.: LexisNexis Canada, 2018), at para. 10.40. Evidence admitted solely for this purpose is excluded as "oath-helping". The rule against oath-helping applies to evidence "that would tend to prove the truthfulness of a witness rather than the truth of the witness's statements": R. v. B.(F.F.) (1993), 1993 167 (SCC), 79 C.C.C. (3d) 112 (S.C.C.), per Iacobucci J., at p. 135. The rule applies equally to expert witnesses and to lay witnesses. As to expert witnesses, the Supreme Court of Canada held in R. v. Marquard, 1993 37 (SCC), [1993] 4 S.C.R. 223, at para. 49:

It is a fundamental axiom of our adversarial process that the ultimate conclusion as to the credibility or truthfulness of a particular witness is for the trier of fact, and is not the proper subject of expert opinion…

A judge or jury who simply accepts an expert's opinion on the credibility of a witness would be abandoning its duty to itself determine the credibility of the witness. Credibility must always be the product of the judge or jury's view of the diverse ingredients it has perceived at trial, combined with experience, logic and an intuitive sense of the matter: see R. v. B. (G.) (1988), 1988 208 (SK CA), 65 Sask. R. 134 (C.A.), at p. 149, per Wakeling J.A., affirmed 1990 113 (SCC), [1990] 2 S.C.R. 3. Credibility is a matter within the competence of lay people. Ordinary people draw conclusions about whether someone is lying or telling the truth on a daily basis. The expert who testifies on credibility is not sworn to the heavy duty of a judge or juror. Moreover, the expert's opinion may be founded on factors which are not in the evidence upon which the judge and juror are duty-bound to render a true verdict. Finally, credibility is a notoriously difficult problem, and the expert's opinion may be all too readily accepted by a frustrated jury as a convenient basis upon which to resolve its difficulties. All these considerations have contributed to the wise policy of the law in rejecting expert evidence on the truthfulness of witnesses.

[53] However, evidence that would otherwise be inadmissible as oath-helping may be admitted where it relates to matters in issue other than credibility: R. v. Burns, 1994 127 (SCC), [1994] 1 S.C.R. 656. The applicants concede that the evidence of Dr. Bart and Dr. Kussin may have been admissible as part of the narrative or with respect to the issue of damages. However, they submit that the Vice-Chair used the treating health professionals' opinions to assess Ms. B's credibility, as well. They rely on seven paragraphs of the Vice-Chair's reasons in support of their argument.

[54] Four of the seven paragraphs, namely paras. 85, 91, 93, and 103, can be dealt with quite quickly. These paragraphs are contained in the Vice-Chair's discussion of the evidence. They formed no part of the analysis which followed that discussion.

[55] The remaining paragraphs are paras. 112, 117, and 118. For ease of reference, I will set them out:

[112] I also acknowledge that like the case of F.H. [v. McDougall], this is a he said, she said case. [Ms. B.] called some limited corroborative evidence from her son and supporting evidence from her son and her doctors. Mr. Singer was the only witness for the respondents.

[117] [Ms. B.'s] truthfulness also was supported by both Dr. Bart and Dr. Kussin. In the case of Dr. Kussin, he has treated [Ms. B.] regularly since 2008 and testified he found [her] story to have remained consistent over the years. He testified her symptoms were consistent with sexual abuse. He also testified he had never known her to be untruthful. He testified that assessing her as credible was part of his diagnosis. Having said that, the Tribunal is acutely aware that it must assess credibility and not defer that assessment to any witness. In addition, in fact the parties made submissions about this issue during the examination and cross-examination of Dr. Kussin.

[118] Dr. Bart testified in support of [Ms. B.]. She assessed [Ms. B.'s] PTSD in light of other stressors in [her] life including her fall, her divorce and her son's health issues and concluded that her symptoms resulted from sexual assaults.

[56] The applicants submit that these paragraphs demonstrate that the Vice-Chair relied upon the expert evidence as evidence that the sexual assaults occurred. They submit that the doctors' opinions had no probative value in that regard. They argue that the opinions were based solely on Ms. B.'s version of events and on the consistency with which she told the same story.

[57] I agree with the submission that the consistent repetition of a version of events does not enhance the truthfulness of that version: R. v. Ellard, 2009 SCC 27, at para. 31; Crêpe It Up! v. Hamilton, 2014 ONSC 6721 (Div. Ct.), at para. 28. However, I do not agree that the fact that the sole source of the experts' opinions was Ms. B.'s evidence undermines their value.

[58] In support of their submission that the experts' opinions were "problematic", the applicants rely on the decisions in R. v. Abbey 1982 25 (SCC), [1982] 2 S.C.R. 24 and R. v. Lavallée, 1990 95 (SCC), [1990] 1 S.C.R. 852 to suggest that the Vice-Chair failed to take into account the basis upon which the experts' opinions were formed. In my view, neither of these cases have any application here. In both Abbey and Lavallée, the issue of hearsay arose because the accused, upon whose statements the experts relied in giving their opinions, failed to testify. In the case before us, there is no suggestion that Ms. B.'s evidence did not support the factual basis on which the experts relied. As a result, the Vice-Chair was not obliged, as counsel for the applicants submits, to grapple with the weight to be given the experts' opinions.

[59] I also disagree with the applicants' submission that the opinions of the experts were "a priori inadmissible to prove the witness is telling the truth" (AF, para. 43). Contrary to the submission made on behalf of the applicants, this evidence was capable of supporting Ms. B.'s evidence.

[60] Expert evidence may be admitted to prove the occurrence of an event where that evidence is necessary to explain the probative value of certain circumstantial evidence. For example, expert evidence is often admitted to help judges and juries determine the cause of wounds found on victims of crime. While the admissibility of expert evidence as to the cause of various physical injuries is a relatively straightforward matter, the same cannot be said for the admissibility of expert evidence as to the cause of various psychological injuries. The authorities are conflicting on the subject.

[61] In R. v. K. (A.) (2000), 1999 3793 (ON CA), 45 O.R. (3d) 641 (Ont. C.A.), the two accused were charged with committing various sexual offences against children. At trial, the Crown sought to call a social worker to give opinion evidence on the behavior of children for two purposes. The first was to show that behaviours such as delayed disclosure, inconsistent versions of the incidents, inability to recall peripheral matters and lack of avoidance of the perpetrators were not inconsistent with sexual abuse having occurred. The second was to show that certain behaviours were, in fact, consistent with sexual abuse. The trial judge allowed the evidence with respect to the first (the "credibility") purpose in order to permit the Crown to respond to defence attacks on the complainants' credibility, but not with respect to the second (the "causation") purpose. The accused were convicted.

[62] On appeal, the accused argued that the trial judge was wrong to admit the opinion evidence for either purpose. They argued that the evidence was of no probative value because the behaviors in question were not uncommon in cases where the allegations were fabricated, as well as in cases where they were not. Charron J.A. (as she then was) held for the majority (Moldaver J.A. dissenting, but not on this issue) that the social worker's opinion was admissible for the credibility purpose, but not for the causation purpose. In response to the submission of the accused on appeal, she wrote (p. 681):

This argument is based on the fallacy that this evidence was presented to prove that sexual abuse in fact occurred. If that were the case, the appellants would be quite correct in their assertion that the evidence would be of little, if any, probative value. Indeed that was the case with the proposed evidence with respect to certain behavioural symptoms being consistent with sexual abuse. That evidence was rightly excluded by the trial judge because it was not sufficiently reliable and its potential prejudicial effect far exceeded any probative value it could have.

Rather, the expert opinion evidence that certain behaviour, such as delayed disclosure of the abuse, is not unusual in victims of sexual abuse is presented simply to prove that fact and nothing more. The same applies with respect to the other features of behaviour. The evidence is not and cannot be presented to show that the complainant is more likely to have been abused because she has not disclosed the abuse in a timely fashion or because she has exhibited some of the other forms of behaviour. Such a proposition would be untenable. It would turn features such as delayed disclosure, faulty memory, inconsistent versions and the like into hallmarks of truth.

[63] A year later, in R. v. Llorenz, 2000 5745 (Ont. C.A.), a similar issue arose. The accused had been convicted of sexual offences with a young person following a trial in which the Crown had been permitted to call a psychiatrist, who testified that the complainant's condition matched a significant number of factors identified as common in cases of sexual assault. The Court of Appeal allowed the appeal, holding that the opinion evidence was misused as oath-helping. In his dissent, Sharpe J.A. wrote concerning the effect of K. (A.) (para. 64):

It is clear from R. v. K. (A), supra and R v. F. (D.S.) (1999), 1999 3704 (ON CA), 43 O.R. (3d) 609 that to the extent the appellant relied on matters such as late disclosure and aberrant behaviour as undermining the complainant's credibility, it was open to the Crown to rebut that evidence by showing that that very behaviour could well have been the product of the alleged sexual abuse. It is important, therefore, to distinguish between the use of expert evidence for two purposes. First is evidence to explain that matters that might otherwise be thought to undermine the complainant's credibility may themselves be the product of abuse. Second is evidence that suggests that post-abuse behaviour amounts to affirmative proof of sexual abuse. The first is admissible but the second is not.

[64] However, O'Connor J.A., writing on behalf of the majority, held (paras. 34 and 35):

[I]t was open to the Crown to lead evidence from Dr. Voysey to explain that the failure of the complainant to disclose the abuse at an earlier point in time was not necessarily inconsistent with the abuse having occurred. When the credibility of a complainant in a sexual abuse case is challenged on the basis of delayed disclosure, as in this case, evidence may be admitted to explain the delay: R. v. K. (A.), supra; R. v. F. (D.S.) (1999), 1999 3704 (ON CA), 43 O.R. (3d) 609 (C.A.)…

Finally, it may be argued that Dr. Voysey's opinion that the complainant's condition was consistent with sexual abuse was admissible as evidence that tended to support the complainant's testimony that she had been abused. This court has held that, in some cases, expert evidence may be admitted to show that certain behaviours, symptoms, or psychological conditions could be consistent with sexual abuse: see, for example, R. v. J. (F.E.) (1989), 1989 7131 (ON CA), 53 C.C.C. (3d) 64 at 70 (Ont. C.A.); R. v. R.(S.) (1992), 1992 7546 (ON CA), 73 C.C.C. (3d) 225 at 230-1 (Ont. C.A.).

[65] The Supreme Court of Canada has also held that expert evidence may be admissible in some cases to support allegations of sexual abuse. In R. v. Burns, 1994 127 (SCC), [1994] 1 S.C.R. 656, the Supreme Court reversed the Court of Appeal for British Columbia and restored the conviction of an accused also charged with sexual offences perpetrated on a child. At trial, the Crown called the complainant's psychiatrist, who testified that the complainant was sexually abused and why he held that opinion. As to the admissibility of this evidence, McLachlin J. (as she then was) wrote for the court (p. 666):

The general rule is that expert evidence is admissible to furnish the court with scientific information which is likely to be outside the experience and knowledge of the judge and jury: R. v. Marquard, 1993 37 (SCC), [1993] 4 S.C.R. 223, at p. 243 (per McLachlin J.); R. c. Béland, 1987 27 (SCC), [1987] 2 S.C.R. 398, at p. 415 (per McIntyre J.); R. v. Abbey, 1982 25 (SCC), [1982] 2 S.C.R. 24, at p. 42 (per Dickson J.). The use of experts to explain human behaviour may fall within this rule. The behaviour of a person who has been systematically abused is one example of a matter on which experts may assist. This use of expert evidence was approved by this court in R. v. Lavallee, 1990 95 (SCC), [1990] 1 S.C.R. 852, where expert evidence of the reactions and behaviour of a woman who had been repeatedly battered by her companion was admitted: see Wilson J.'s reasons at pp. 870-72.

[66] There is no indication in this case that Mr. Singer ever challenged either the necessity or the reliability of the expert evidence tendered by Ms. B. In their oral submissions before us, counsel for the applicants challenge the evidence on the basis that, as "participant" experts called to give evidence about their treatment of Ms. B., the experts ought not to have been allowed to testify about causation: Westerhof v. Gee Estate, 2015 ONCA 206; Imeson v. Maryvale (Maryvale Adolescent and Family Services, 2018 ONCA 888. However, there is nothing in the reasons of the Vice-Chair to indicate that the applicants objected to the evidence of causation at the hearing. Nor is there a transcript of the proceedings before the Vice-Chair.

[67] In the absence of a transcript, the applicants have filed an excerpt from materials filed on behalf of Ms. B. in opposition to a motion brought by the applicants to introduce fresh evidence on this application. That motion was dismissed by Myers J. (2018 ONSC 5869). The applicants submit that the excerpt shows that they objected to the evidence of causation before the Vice-Chair. However, all the excerpt shows is that the experts testified as participant experts. It says nothing about an objection.

[68] The applicants submit that, if this evidence is insufficient to support their submission, the court must resolve any doubt about the issue in favour of the applicants. They rely on the decision in Peel Law Association v. Pieters, 2013 ONCA 396. I do not read that decision as authority for the proposition advanced by the applicants. The particular paragraph relied upon is para. 135, where Juriansz J.A. wrote for the court:

Finally, I will comment about respondents' counsel's complaint that there was no record of the proceedings before the Vice-Chair. We were advised that the HRTO does not normally record or transcribe its proceedings. This is difficult to understand given the availability of modern and simple to operate digital recording equipment. It seems to me that the advantages of recording the proceedings to the parties, the reviewing courts and to the tribunal itself outweigh any perceived difficulties. Certain equipment problems can arise, but the impossibility of guaranteeing a reliable, quality recording is hardly a good reason for not recording at all.

[69] I interpret this comment as a criticism of the Tribunal, not as the imposition of an onus on Ms. B., resulting in a legal presumption against her where the Tribunal fails to record its proceedings.

[70] Nor is such a presumption necessary. It is well-settled that a party may file affidavit evidence on a judicial review such as this one to disclose a breach of natural justice that cannot be proven by reference to the record alone: 142445 Ontario Ltd. (Utilities Kingston) v. International Brotherhood of Electrical Workers, Local 636 (2009), 251 O.A.C. 62, 2009 24643 (Div. Ct), at para. 18; Re. Keeprite Workers' Independent Union et al. and Keeprite Products Ltd. (1980), 1980 1877 (ON CA), 29 O.R. (2d) 513 (C.A.). That was not done here.

[71] In any event, I do not agree with the submission that the Vice-Chair relied upon the opinions of the experts as positive evidence that the sexual abuse occurred. Instead, I believe that the Vice-Chair relied upon the expert evidence in refutation of the applicants' argument that Ms. B.'s memory problems made her evidence of sexual harassment less likely to be true.

[72] The first of the impugned paragraphs set out above immediately preceded, and the other two paragraphs followed shortly after, para. 113, in which the Vice-Chair wrote:

Because this is a he said, she said case, I will set out, below, [Mr. Singer's] challenges to [Ms. B.'s] evidence.

[73] Although the Vice-Chair did not use headings in the analysis that followed, it is clear that she began immediately to address the applicants' arguments about the fallibility of Ms. B.'s memory. Her comments in paras. 117 and 118 were made in the context of that discussion.

[74] After discussing Ms. B.'s faulty memory, the Vice-Chair moved on in paragraph 119 and the following paragraphs to discuss the other attacks the applicants had made on Ms. B.'s evidence, including delayed disclosure and inconsistent statements. In the course of her analysis, the Vice-Chair referred several times to the evidence of the experts. As I read the Vice-Chair's comments, taken in the context in which they were made, it is clear that she relied on the expert evidence that Ms. B.'s faulty memory could be caused by sexual abuse to hold that Ms. B.'s memory issues did not preclude her from finding that the sexual harassment occurred, not as evidence that they did.

[75] Regardless of the conflict in the jurisprudence regarding evidence of causation in cases of sexual assault, according to all of the authorities to which I have referred, the Vice-Chair's use of the expert evidence to explain Ms. B.'s memory issues as not being inconsistent with sexual abuse was proper.

[76] However, notwithstanding the legitimate uses to which the Vice-Chair was entitled to put the evidence of the experts in this case, the applicants submit that she went beyond those uses and put the evidence to the illegitimate use of oath-helping. This submission is not borne out by the Vice-Chair's reasons.

[77] At para. 117 of her reasons, set out above, the Vice-Chair specifically instructed herself that she was not to permit the opinions of the experts to supplant her own credibility findings. She stated that she was "acutely aware" that she alone must assess credibility. Contrary to the submission made on behalf of the applicants, there is nothing in the balance of her reasons to suggest that she then went on to do what she acknowledged she should not do. As was the case with the trial judge's reasons in Burns, the Vice-Chair's reasons in this case demonstrate that she came to her own conclusion as to the credibility of the witnesses, as I hope to demonstrate in the analysis that follows.

[78] For these reasons, I would not give effect to this ground of review.

Circular Reasoning

[79] Although I have explained why I do not believe that the Vice-Chair relied upon the opinion evidence of the experts as evidence that the sexual abuse occurred, I propose to address a further argument based on this premise, nonetheless. In particular, the applicants submit that, in relying on the expert evidence this way, the Vice-Chair engaged in a type of circular reasoning known and criticized as "boot-strapping". They rely specifically on two paragraphs of the Vice-Chair's reasons in support of their argument.

[80] The first is para. 126, in which the Vice-Chair wrote:

I note in assessing [Ms. B.'s] evidence that there is no doubt or question that she has memory issues. Dr. Bart testified that [Ms. B.'s] pain and trauma caused her to have problems accessing information, even simple information about her own life. As such, I view [Ms. B.'s] evidence in light of this testimony.

[81] The applicants argue that this paragraph demonstrates that the Vice-Chair used Dr. Bart's evidence to explain away Ms. B.'s "general unreliability", and used Ms. B.'s unreliability as evidence of sexual assault.

[82] The second is para. 122, in which the Vice-Chair wrote:

I agree, as the Tribunal did in [O.P.T. v. Presteve Foods Ltd., 2015 HRTO 675], with the expert evidence given in other Tribunal cases that women who experience sexual misconduct often do not report or disclose this conduct due to feelings of shame, humiliation and embarrassment. My finding is supported by the fact that [Ms. B.] testified to exactly those feelings.

[83] The applicants submit that this paragraph demonstrates that the Vice-Chair relied on Ms. B.'s evidence of her feelings as positive proof that she was sexually abused.

[84] I am unable to agree that either paragraph set out above supports the conclusion that the Vice-Chair used Ms. B.'s delayed disclosure or poor memory as circumstantial evidence that she was sexually abused. Instead, I believe both paragraphs serve to demonstrate further that the Vice-Chair relied upon the expert evidence in refutation of the applicants' argument that these behaviours made her evidence of sexual harassment less likely to be true.

[85] Both of the impugned paragraphs are located in the part of the Vice-Chair's reasons, mentioned above, in which she dealt with the applicants' various challenges to Ms. B.'s credibility. Neither paragraph formed part of her analysis as to the truthfulness of Ms. B.'s allegations which, as I have pointed out, the Vice-Chair based upon the degree of detail Ms. B. was able to give about certain events.

[86] There is nothing in paragraph 126 from which to infer that the Vice-Chair relied on Ms. B.'s memory issues as proof that she was abused. Indeed, her choice of language is consistent with the use of the expert evidence only to show that Ms. B.'s poor memory was not determinative of the truthfulness of her evidence.

[87] I believe that the same thing is true of paragraph 122. I interpret the Vice-Chair's comment about Ms. B.'s evidence not as a statement that she relied on it as circumstantial evidence of sexual abuse, but as a statement that none of Ms. B.'s evidence precludes the application of decisions such as Presteve to the facts of the case before her.

[88] For these reasons, I do not believe this ground of review should succeed.

Did the Tribunal subject Mr. Singer's evidence to greater scrutiny?

[89] At the outset of these reasons, I highlighted the burden of proof that applied to the proceedings before the Tribunal and contrasted that with the burden in a criminal proceeding. However, regardless of the level of proof required, it will be procedurally unfair for a decision maker to apply different standards in assessing competing evidence. Where that occurs, the decision-maker's reasons will not meet the justification, transparency and intelligibility standard, nor allow the decision to be defensible in terms of the facts and the law: Karkanis v. College of Physicians and Surgeons, 2014 ONSC 7018 (Div. Ct.), at para. 72; Stevanov, at para. 106.

[90] The applicants submit that the Vice-Chair applied greater scrutiny to the evidence of Mr. Singer than to the evidence of Ms. B. in this case. They argue that the Vice-Chair either ignored inconsistencies and implausabilities in Ms. B.'s evidence, or was too forgiving of them, in contrast to the way she treated the evidence of Mr. Singer. They cite a number of examples of the higher level of scrutiny they contend was applied to his evidence, including:

(a) the fact that Mr. Singer raised allegations in his testimony that he had not raised before, including:

(i) that Ms. B. asked him for $25,000 for a "sex thing"; and

(ii) that Ms. B. stole hydro from the store;

(b) the fact that Mr. Singer implied in his evidence-in-chief that Ms. B. had broken into the store, but admitted in cross-examination that she had a key;

(c) the fact that Mr. Singer testified that, after he injured himself in 2004 he went home each day between 3 and 4 p.m., whereas he testified that Ms. B.'s demand for money occurred between 4 and 5 p.m.; and

(d) the unconvincing way in which Mr. Singer denied that he superimposed a photo of a penis on a photo of Ms. B.

[91] I am not persuaded that the Vice-Chair applied a different level of scrutiny to the evidence of Ms. B. and Mr. Singer.

[92] As I have already demonstrated in my analysis of the applicants' submission that the Vice-Chair ignored Ms. B.'s unreliability in favour of her credibility, the Vice-Chair did not ignore the problems with Ms. B.'s evidence.

[93] Nor did she forgive them too easily. Contrary to the submission made on behalf of the applicants, the Vice-Chair did not give Ms. B. "a free pass" as a result of her memory issues. The Vice-Chair analyzed each of the challenges made to Ms. B.'s evidence. She found that a number of the alleged inconsistencies in Ms. B.'s evidence did not, in fact, amount to such. This was the case with respect to whether Ms. B. struck her head in the fall, and whether the assaults took place in her home or at work.

[94] Given Ms. B.'s memory issues, however, inconsistencies in her evidence took on less significance as a test of her truthfulness than they might in the case of a witness who was not suffering from such issues. As I have pointed out, the Vice-Chair accepted the evidence of the experts that Ms. B. had real memory problems, and with good reason. Dr. Bart testified that Ms. B.'s memory problems were such that she wondered whether Ms. B. had suffered a brain injury in the fall at work. Dr. Kussin testified that Ms. B. suffered from a form of episodic psychosis. At times, she could not even remember her own birthdate or how many siblings she had.

[95] In light of this evidence, it is not surprising, nor was it unfair or unreasonable, that the Vice-Chair would view certain inconsistencies as being less material than they might be in the case of a witness whose memory was not deficient. Therefore, rather than focusing on inconsistencies in Ms. B.'s evidence, the Vice-Chair focused instead on two other tools for assessing her evidence.

[96] First, she focused on implausibilities, testing the evidence as against other established facts. As I pointed out above, she rejected Ms. B.'s evidence where it conflicted with likely reality, for example, with respect to the inconsistency relating to how well she slept.

[97] Second, and perhaps more importantly, the Vice-Chair focused on the quality of Ms. B.'s memories, rather than the consistency. She found the details of those memories, including what Mr. Singer said, how he smelled, and how it felt to have his semen on her face, to be persuasive. There was nothing unreasonable in the Vice-Chair's approach to her assessment of Ms. B.'s credibility.

[98] Nor was there anything unreasonable in her approach to the assessment of Mr. Singer's credibility. The applicants do not argue that any of the reasons for which the Vice-Chair rejected his evidence were immaterial or incapable of affecting her analysis of his credibility. Their argument is simply that similar flaws in Ms. B.'s evidence were treated differently. I have already disposed of that argument as it relates to the way the Vice-Chair dealt with the inconsistencies and implausibilities listed in paras. (a) to (c), above. I will address the way the Vice-Chair dealt with Mr. Singer's evidence regarding the photo ((d), above) when I address the applicants' concerns with the Vice-Chair's reliance on demeanour evidence, to which I now turn.

Did the Tribunal unreasonably rely on demeanor evidence?

[99] The Vice-Chair made two findings that were based, at least in part, on Mr. Singer's demeanour during the hearing. One of them was her finding that Mr. Singer's evidence that he did not have a photo of his penis was "unconvincing" (para. 142). The other was that he had created a poisoned work environment. With respect to the first finding, the applicants submit that they were entitled to know why Mr. Singer was not believed. With respect to the second, they submit that it was unreasonable for the Vice-Chair to place so much weight on Mr. Singer's demeanour.

[100] I agree with the submission that the applicants were entitled to know why Mr. Singer was not believed with respect to his evidence about the photo. However, credibility assessments can be extremely difficult to articulate. As the Supreme Court of Canada held in R.E.M., at para. 49:

While it is useful for a judge to attempt to articulate the reasons for believing a witness and disbelieving another in general or on a particular point, the fact remains that the exercise may not be purely intellectual and may involve factors that are difficult to verbalize. Furthermore, embellishing why a particular witness's evidence is rejected may involve the judge saying unflattering things about the witness; judges may wish to spare the accused who takes the stand to deny the crime, for example, the indignity of not only rejecting his evidence and convicting him, but adding negative comments about his demeanor. In short, assessing credibility is a difficult and delicate matter that does not always lend itself to precise and complete verbalization.

[101] I cannot see how the Vice-Chair could have been more articulate in her reasons for disbelieving Mr. Singer's photo evidence without having to be disparaging to the point of embarrassing Mr. Singer on a factual issue which was already embarrassing enough.

[102] I also agree with the submission that, generally speaking, a decision maker should not place undue weight on a witness's demeanour: Norman. However, I do not agree that the Vice-Chair did that here. Her reasons for finding that Mr. Singer created a poisoned work environment went far beyond simply the manner in which he gave his evidence. They addressed its substance, as well.

[103] The applicants focus on para. 151 of the Vice-Chair's reasons, where she wrote:

The applicant in closing submissions pointed out that Mr. Singer referred to something the applicant said in her job interview as cute and also referred to her as a girl. Mr. Singer's language was indicative of his view of women. I also note that during his cross-examination, he was combative with the applicant's counsel at times, and at one point told her she was wrong and should get better notes. The language he used with the applicant and the combativeness he displayed toward her counsel displayed a lack of respect for women generally.

[104] The applicants submit that the Vice-Chair placed too much emphasis on Mr. Singer's demeanour in arriving at her decision. However, the Vice-Chair relied on more than just the evidence referred to in this paragraph. In the paragraph immediately following, she wrote (para. 152):

Given all of the evidence including the repeated comments and sexual harassment and solicitation and advances to the applicant, I find that Mr. Singer created a poisoned work environment for the applicant. [Emphasis added.]

[105] Even if the Vice-Chair had not specifically referred to "all of the evidence" in this paragraph, the court would be required to supplement the Vice-Chair's reasons before subverting them: N.L.N.U. v. Newfoundland & Labrador (Treasury Board), 2011 SCC 62 (S.C.C.), at para. 22. There was ample evidence to support the Vice-Chair's finding. This included:

(a) Ms. B.'s evidence that Mr. Singer routinely slapped her and other female employees on the buttocks (para. 40);

(b) Mr. Singer's evidence that he did "at times" make sexual jokes (para. 40);

(c) Ms. B.'s evidence that Mr. Singer made comments about her body (paras. 54 and 55);

(d) Ms. B.'s evidence that Mr. Singer made fun of the way she spoke (para. 58); and

(e) Mr. Singer's evidence that he did "once or twice" tell Ms. B. to shut up"in a nice way" (para. 73).

[106] The Vice-Chair relied on more than just Mr. Singer's demeanour in finding that he had created a poisoned work environment. Therefore, I would not allow this ground of review.

CONCLUSION

[107] This was a case in which the Tribunal reasonably concluded that the complainant suffered from cognitive deficits, including a faulty memory, which affected the reliability of her evidence. The Vice-Chair did not ignore the problems with the complainant's reliability. Instead, she had regard to additional indicia of truthfulness, such as the degree of detail the complainant was able to remember. There was nothing unfair in this.

[108] Nor was there anything unreasonable in the Tribunal's conclusion that the complainant was being truthful and that her employer was not. The Vice-Chair's decision fits within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law. Her reasons for reaching that decision are intelligible, transparent, and justifiable.

[109] Therefore, I would dismiss the application.

COSTS

[110] In its factum, the respondent Tribunal indicated that it was not seeking costs. If the other parties are unable to agree on the issue of costs, they may make written submissions, limited to five typewritten pages, excluding attachments, as follows:

(a) by the respondent, Ms. B., within 20 days of the release of these reasons; and

(b) by the applicants, within 20 days of the receipt of the respondents' submissions.

Ellies R.S.J.

I agree.

Kiteley J.

I agree.

Backhouse J.

Released: October 04, 2019

CITATION: Joe Singer Shoes Limited v. A.B. 2019 ONSC 5628

DIVISIONAL COURT FILE NO.: 149/18 DATE: 2019/10/04

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

ELLIES R.S.J., KITELEY AND BACKHOUSE JJ.

BETWEEN:

JOE SINGER SHOES LIMITED, PAUL SINGER, AND BUY-A-HAMMER INVESTMENTS INC.

Applicant

– and –

A.B.

Respondent

– and –

HUMAN RIGHTS TRIBUNAL OF ONTARIO

Respondent

Released: October 04, 2019