Even if told through a trustworthy witness, an untrustworthy complainant’s evidence is not reliable. That’s what the BC Supreme Court found recently when it overturned a BC Human Rights Tribunal ruling.
In Francis v. Victoria Shipyards, the complainant, a black employee, alleged that a rag resembling a Ku Klux Klan mask was placed on his tool bag while he was at work. The complainant admitted that he didn’t bring the incident to the attention of anyone in management. He told two individuals about the rag incident. No one other than the complainant saw the rag on his bag.
In the hearing before the Tribunal, only one of the two individuals told about the incident was called to give evidence. The witness was unable to identify the rag placed in evidence. That led the Tribunal to conclude that the rag placed in evidence was not the rag that was allegedly placed on the complainant’s bag.
In its decision, the Tribunal found that the evidence given by the complainant was not reliable, as it was “scattered”, “inconsistent,” and “had been deliberately concocted for the purpose of advancing his case.” Despite this, the Tribunal concluded that the rag incident had occurred, and that the complainant was discriminated against in the workplace because of his race. The finding was based solely on the hearsay evidence of the other witness, who had not witnessed the incident at all.
On judicial review, the Court set aside the Tribunal’s decision, ordering costs against the complainant. The Court was very critical of the Tribunal’s assessment of the evidence, its decision to rely on hearsay evidence, and its failure to address the complainant’s tendering of false evidence. In short, the Court said there was no way the Tribunal could have “reached the conclusion that an act of discrimination had been proven.”
The Court held that evidence from an unreliable source cannot become reliable by being presented through another reliable witness. Essentially, a lie is always a lie.
Victoria Shipyards Co. Lt. v. Francis 2013 BCSC 1410, August 9, 2013
For questions pertaining to the information presented in this article please contact Chris Leenheer, Partner.