Sexual Harassment Discrimination Case Fails Based on Credibility

In Pujji v 1819010 Alberta Ltd. o/z Liquor King Spruce Grove, 2025 AHRC 15 (Marsden), the Alberta Human Rights Tribunal rejected a claim of sexual harassment, primarily on the basis of a credibility assessment between the complainant and the alleged harasser.

This case is important because it illustrates how credibility assessments are conducted, and reinforces how important credibility contests can be.

Facts

The following were some of the pertinent facts summarized by the Alberta Human Rights Tribunal:

• The complainant worked for the respondent for about 3 years when her employment was terminated
• The complainant worked in the position of liquor store supervisor
• The complainant alleged she was sexually harassed and sexually assaulted by one of the owners of the liquor store
• The respondent’s position was that the owner and complainant had been in a consensual sexual relationship for many months and the decision to terminate her employment was as a result of her neglect of the business and there had been complaints about the complainant
• Sexual harassment at work is a claim of gender discrimination in employment under Section 7 of the AHRA.

Analysis / Conclusion

The complainant alleged that she had been drugged and taken to a Dennys restaurant, and then sexually assaulted.  The owner denied drugging her and alleged she had been there voluntarily.

The complainant’s sister-in-law engaged a private investigator to take a video of the events of that night.  A copy of the video was obtained from her sister-in-law part way into the hearing. 

Prior to the tribunal seeing the video, the complainant provided evidence about that evening which included that the owner had given her a bitter-tasting coffee and she was dizzy afterwards.  She said she went to dinner with the owner, each in separate vehicles.  She said she was in a blackout state.  After dinner they sat in the complainant’s car and he forcibly kissed her.  After she left, she drove her car back to her sister’s house.  The next day, the owner told her that if she said anything, he would show “the video” to her family.  

The owner denied drugging her.  He said they went to Dennys together and they both engaged in a consensual sexual act in the complainant’s car afterwards.

The AHRT noted as follows regarding assessment of credibility:

[19] Counsel for the complainant referred me to Mandziak v Taste of Tuscany Ltd. (Taste of Tuscany),^[2] as being the relevant case when assessing credibility between witnesses and specifically I was referred to the following paragraph set out in Faryna v Chorney:^[3]

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.

[20] I was also referred to the following factors relevant to assessing credibility, as set out in Taste of Tuscany:

1. The internal consistency or inconsistency of evidence

2. The witness’s ability and/or capacity to apprehend and recollect

3. The witness’s opportunity and/or inclination to tailor evidence

4. The witness’s opportunity and/or inclination to embellish evidence

5. The existence of corroborative and/or confirmatory evidence

6.   The motives of the witnesses and/or their relationship with the parties

7. The failure to call or produce material evidence.

The Tribunal reviewed the video and concluded that the complainant was not in a blackout state when she was in the restaurant – she was lucid and was chatting with the owner.  She seemed affectionate towards him and not scared of him.

Overall, the Tribunal preferred the evidence of the owner that the two had a prior sexual relationship and about what happened that night, highlighting certain parts of her evidence that were not believable, including: (1) she had no GPS, but managed to drive her car to the Dennys based only on verbal instructions given to her by the owner.  She also drove home.  Both of these were inconsistent with a blackout state (2) the complainant’s evidence about what happened at Dennys was inconsistent with the video (3) the complainant had testified the owner showed her the video while in the Dennys restaurant, but when it was pointed out this was impossible she changed her evidence to say it must have been the day after (4) the complainant was evasive, inconsistent, and tended to embellish.

The Tribunal found that a key element of sexual harassment is that the conduct must be unwelcome, but the events of that night were voluntary and she appeared to be enjoying herself.

The complainant made other allegations of harassment from prior dates including touching her shoulders and making comments about women’s low-cut tops.  The owners denied this, and their evidence was preferred as a result of the credibility assessment related to the night at Dennys.

A few aspects of the owner’s evidence was corroborated by the owner’s wife – the other owner of the liquor store – but the decision appears primarily to be as a result of the credibility contest between the male owner and the complainant.

My Take

The credibility assessment in favor of the owner is not surprising given that the video contradicted quite a bit of what the complainant had alleged.

The biggest thing I would point people to in this case is, a determination that a complainant lacks credibility on one issue can result in a determination that they are not credible in general.  It is very risky to make too many allegations that come down to credibility, because in some cases you only need to lose one credibility contest (i.e. between the complainant and one major witness) to lose on many points – or even all of them. 

A related potential pitfall is to make allegations that will result in too many witnesses with a different version of events than the complainant, either because of their perception of events or because some witnesses may not be truthful.  This pitfall cannot always be avoided, but if you are confident there will be several witnesses disagreeing with your version and you have no corroborating witness (and no strong documentary evidence), you may want to give the potential success of your case a closer look.

Bow River Law provides these regular legal blog articles for the purposes of legal news, education and research for the public and the legal profession.  These articles should be considered general information and not legal advice.  If you have a legal problem, you should speak to a lawyer directly.

Bow River Law is a team of knowledgeable, skilled and experienced employment lawyers handling employment law, human rights (discrimination) and labour law matters.  Bow River Law is based in Calgary but we are Alberta’s Workforce Lawyers.