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Court Testimony from Experts @ BEC

Excerpt from Walsh and Mobil Oil Canada DECISION ON REMEDY from the Human Rights Tribunal of Alberta, released Sept. 2, 2010

The following excerpts are interspersed with brief comments about the Tribunal's decision, included only for explanatory purposes. The first paragraphs ([1] to [10]) reproduce the history of the claim. Paragraphs [172] onward relate to the Tribunal's finding on quantum. Paragraphs [213] to [227] reproduce the Tribunal's decision to hire Brown Economic to calculate the pecuniary losses awarded to Ms. Walsh in the DECISION ON REMEDY.

[1] This is a resumption of the hearing into the human rights complaints of Ms. Delorie Walsh versus Mobil Oil Canada (Mobil) which was held September 28-30, and October 21, 2005.

[2] On December 16, 2005, this Panel (now referred to as Tribunal) released its decision on the merits of the two complaints filed by Ms. Walsh against Mobil. As agreed by the parties prior to the start of this hearing, evidence related to remedy would be heard at a later date.

[3] On the first complaint filed August 14, 1991, the Panel found that Ms. Walsh was discriminated against based on her gender between August 1990 and August 1991,contrary to the equal pay and terms of conditions of employment provisions of s. 6 and 7 of the Human Rights, Citizenship and Multiculturalism Act (now the Alberta Human Rights Act) (the Act).1

[4] On the second complaint filed on August 15, 1995, the Panel found that Mobil did not retaliate against Ms. Walsh for filing a human rights complaint.

[5] Ms. Walsh appealed the Panel's decision to the Court of Queen's Bench. This appeal was heard February 1, 2007 and a decision was rendered on May 11, 2007.

[6] The Court of Queen's Bench decision concluded that Ms. Walsh was entitled to any loss arising out of the discriminatory conduct found by the Panel and amplified by this decision for the period of two years before the complaint was filed up until the time her employment ended.

[7] The Court also overturned the Panel's decision regarding retaliation.

[8] Mobil appealed this decision to the Alberta Court of Appeal. The appeal was heard March 14, 2008 and a decision was rendered on August 5, 2008.

[9] The appeal was dismissed with respect to the substantive issues of discrimination based on gender and retaliation and was allowed with respect to the issues of damage directives and solicitor-client costs.

[10] The matter was remitted back to this Tribunal to proceed with the remedy hearing.  This hearing was held May 10, 11, 12, 13, 31, June 1 and 2, 2010.

Counsel for the complainant (Ms. Walsh) asked for past loss of wages from 1995 (when termination occurred at Mobil) to 2010 (the hearing date), and then future loss of wages and pension benefits from 2010 to Ms. Walsh's retirement age of 60. Counsel for Ms. Walsh argued that "Human rights cases do not suggest a time limit or maximum dollar amount" and there is "no statutory ceiling in the Act for an award for either discrimination or retaliation". (para [17]) As such, counsel for the complainant asked for $150,000 in general damages (plus pre-judgment interest from 1995) (para. [21]) as well as pecuniary damages of approximately $1.5 million for past loss of wages, and $2.14 million for future loss of wages and pension benefits to age 60.

Counsel for the respondent (Mobil Oil) took the position that Ms. Walsh's pecuniary losses should come to an end in 1998 (para [24]) and stated that:

Counsel for Mobil Oil put forth the position that:

Counsel for Mobil Oil suggested that compensation for past wage loss should be approximately $208,600 until the end of 1998. (An alternative position was put forth of damages to the end of 1997, for about $159,000). (Paras. [61] and [65]).

The Tribunal analyzed two expert reports with respect to Ms. Walsh's claim that the termination and retaliation had caused Post-Traumatic Stress Disorder ('PTSD'), and it found that "...Ms. Walsh does not suffer from PTSD and that there is no single cause for the depression she has suffered periodically over the last 19 years." (para. [134]) Nonetheless, the Tribunal noted that Ms. Walsh did not work from 1999 to 2006 (para. [147]), and stated the following with regard to Ms. Walsh's employability in general: In evaluating the two expert reports prepared on loss of wages, the Tribunal accepted Brown Economic's report:

In evaluating the two expert reports prepared on loss of pension benefits, the Tribunal accepted Brown Economic's report:

The Tribunal found that between 1995 and 2000, Ms. Walsh 'did what she could to deal with her loss of income and her health' but found no causal link between losses she might have sustained after the year 2000 and the discrimination and retaliation (paras. [202] through to [206]).

In determining the total quantum of damages in the amount of $650,000, the Tribunal awarded the following:

The amounts for loss of wages and fringe benefits, and loss of pension benefits, were calculated by Brown Economic after the Tribunal hearing finished on June 2, 2010. The DECISION ON REMEDY stated the following with respect to this process:

1 Alberta Human Rights Act, R.S.A.2000,c.A-25.5