The British Columbia Labour Relations Board denied an application for reconsideration by a university professor who challenged the dismissal of his earlier application to review an arbitration award. The case, which revolved around allegations of sexual harassment that he was accused of fabricating, highlights the critical role of credibility in resolving workplace disputes.
The core issue stemmed from an arbitration decision in which Arbitrator Jacquie de Aguayo determined that it was “more likely than not” that S.N. knowingly made false allegations against a colleague. In reaching her decision, de Aguayo relied on the credibility framework established in the 1952 B.C. Court of Appeal case Faryna v. Chorny, a well-established precedent in both Board proceedings and grievance arbitrations.
S.N.’s challenge was based on the assertion that the Arbitrator should have used the approach from the 2010 B.C. Supreme Court case Bradshaw v. Stenner, which differentiates between the “inherent believability” of a witness’s testimony and the reliability of that testimony. He argued that the Arbitrator’s failure to apply the Bradshaw framework constituted a legal error that deprived him of a fair hearing.
However, both the original panel and the Labour Relations Board found that Faryna was the appropriate framework for assessing credibility in this case, given the “diametrically opposed” accounts presented by Nasir and his colleague. The Board noted that the Faryna approach, which evaluates evidence based on whether it is consistent with the probabilities of the case as a whole, has long been a cornerstone in resolving such disputes.
The Labour Board’s decision underscored that while the Bradshaw framework may be “useful” in some cases, it was not intended to replace Faryna. The Board agreed with the original panel’s conclusion that the Arbitrator’s use of Faryna was “wholly consistent” with established legal principles, and that the Arbitrator provided a reasoned analysis that took into account the substance of the matter and the conflicting stories presented by the witnesses.
S.N.’s application for reconsideration also claimed that the Arbitrator’s failure to apply the Bradshaw framework resulted in a breach of natural justice. However, the Board found that his arguments on reconsideration merely rehashed the claims made in the original application, without raising any new or compelling grounds. The Board reiterated that under Section 141 of the Labour Relations Code, an application for reconsideration must present a serious question regarding the correctness or fairness of the original decision — a standard S.N.’s application did not meet.
In its analysis, the Board emphasized that arbitrators are not required to follow a specific framework for assessing credibility and reliability unless such a framework is explicitly mandated by the Code. The Board supported the original panel’s view that the assessment of witness credibility does not involve a rigid legal test but rather a reasoned evaluation of the evidence in light of the entire case.
By affirming the use of the Faryna framework, the Labour Board has reinforced the notion that credibility is best assessed through a holistic approach that considers the entirety of the evidence, rather than adhering to a prescribed methodology.
Ultimately, the Labour Board concluded that the Arbitrator had not committed a reviewable error in her decision, and S.N.’s application for leave and reconsideration was denied.
For more information, see Shoaib Nasir, 2024 BCLRB 108 (CanLII).
