Walsh v. Mobil Oil Canada,

• Judge: Côté, Paperny and Ritter, JJ.A.
• Neutral Citation: 2008 ABCA 268
• Citation: 2008 ABCA 268,(2008), 440 A.R. 199 (CA),296 DLR (4th) 178,[2008] 11 WWR 205,440 AR 199,94 Alta LR (4th) 209,69 CCEL (3d) 1,(2008), 440 AR 199 (CA),296 D.L.R. (4th) 178,440 A.R. 199
• Date: 14 March 2008
• Court: Court of Appeal (Alberta)

Walsh v. Mobil Oil Can. (2008), 440 A.R. 199 (CA);

      438 W.A.C. 199

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. OC.065

Delorie Walsh (respondent/appellant) v. Mobil Oil Canada also known as Exxonmobil Canada Ltd. (appellant/respondent) and Alberta Human Rights Commission (not a party to the appeal/respondent)

(0701-0201-AC; 2008 ABCA 268)

Indexed As: Walsh v. Mobil Oil Canada et al.

Alberta Court of Appeal

Côté, Paperny and Ritter, JJ.A.

August 5, 2008.

Summary:

Walsh filed a discrimination complaint with the Human Rights Commission against her employer Mobil Oil Canada. The complaint was dismissed. Walsh was dismissed on the same date. Walsh filed a retaliation complaint. That complaint was also dismissed. Walsh sought judicial review of the decisions.

The Alberta Court of Queen's Bench, in a decision reported at [2007] A.R. Uned. 257, allowed the application. The court held that the panel erred by: holding that Mobil's conduct did not constitute discrimination; by interpreting the Human Rights, Citizenship and Multiculturalism Act (HRCMA) to limit the damages available to Walsh based on the provision that limited the time within which a complaint had to be filed; and that there had to be intent or motivation in order to find retaliation. Finally, the court provided direction to the panel in terms of assessing damages in light of its conclusions and awarded Walsh solicitor-client costs. Mobil appealed.

The Alberta Court of Appeal, per Ritter and Côté, JJ.A., allowed the appeal in part, overturning the award of solicitor-client costs (substituting party and party costs) and setting aside the reviewing judge's directions regarding damages. Paperny, J.A., disagreed with the majority's conclusion on the costs issue and, although she agreed with the majority's finding on retaliation, disagreed with its analysis and conclusion on the legal requirements necessary to establish retaliation under s. 10 of the HRCMA.

Administrative Law - Topic 3345.2

Judicial review - General - Practice - Issues not raised before tribunal - Walsh filed a discrimination complaint with the Human Rights Commission against her employer Mobil Oil Canada - It was dismissed - Walsh filed a retaliation complaint - It was also dismissed - Walsh successfully sought judicial review of the decisions - Mobil appealed - The Alberta Court of Appeal noted that the issues of liability and damages before the Human Rights panel were bifurcated - The panel first heard the liability issue under appeal and had yet to deal with damages - Notwithstanding this process, the reviewing judge chose to provide the panel with a series of directions on how to deal with damages - Given that this was a judicial review conducted on review of the record, and given that the record included nothing related to damages, the reviewing judge erred in providing damage directions - See paragraphs 108 to 110.

Civil Rights - Topic 910

Discrimination - General principles - Adverse effect, indirect or constructive discrimination - Walsh filed a discrimination complaint with the Human Rights Commission against her employer Mobil Oil Canada - It was dismissed - Walsh successfully sought judicial review - Mobil appealed - The Alberta Court of Appeal upheld the finding of discrimination - Despite her ongoing efforts to gain a position in the field, and in spite of her consistently good performance evaluations, Walsh was held back from a field position, where similarly situated men were not - The basis of this treatment was the paternalistic attitudes of Walsh's superiors, who were apprehensive and concerned about having a woman in the field - The fact that Walsh was ultimately given a position in the field did not justify the differential treatment based on her gender up to that time - The discriminatory effect of that treatment was obvious - Moreover, Walsh suffered discrimination throughout because the compensation she received was always at the low end of Mobil's compensation scheme, even though her performance for most of her career with Mobil was at the high end, or at least above average - See paragraphs 60 to 64.

Civil Rights - Topic 987

Discrimination - Employment - On basis of sex - [See Civil Rights - Topic 910 ].

Civil Rights - Topic 7069.03

Federal, provincial or territorial legislation - Commissions or boards - Jurisdiction - Complaints - Retaliation or reprisal - Section 10(1) of the Human Rights, Citizenship and Multiculturalism Act stated that "No person shall retaliate against a person because that person ..." - The Alberta Court of Appeal held that the test for retaliation was an act that required conscious behaviour in reaction to the complainant's s. 10(1) behaviour - Human rights panels had to be aware that it would be a rare day when a respondent admitted that it intended to retaliate against a human rights complainant - The panel should consider the entire context of the relationship between the parties to determine whether it could infer that conduct by the respondent, directed at the complainant, constituted retaliation - Retaliation implied both a nexus between the alleged conduct and the complaint, and some evidence that the alleged conduct was a deliberate response to the complaint - Further, retaliation was limited to negative reaction since neither positive nor neutral reaction came within ordinary usage of word "retaliation" - See paragraphs 65 to 79.

Civil Rights - Topic 7069.03

Federal, provincial or territorial legislation - Commissions or boards - Jurisdiction - Complaints - Retaliation or reprisal - The Alberta Court of Appeal stated that "... the test for retaliation is composed of two parts. The first part of the test involves ascertaining whether there is a link between the alleged conduct and one of the actions enumerated in s. 10(1), in this case the filing of a complaint. Factors such as coincidental timing may be considered in relation to this part of the test, and in most cases, human rights tribunals will be called on to draw inferences of linkage from the proven facts. The second part of the test involves establishing that the alleged conduct was, at least in part, a deliberate response by the employer to one of the actions enumerated in s. 10(1). It will often be evident from the facts and inferences that establish the first part of the test. A complainant need not show malice on the part of the employer. This part of the test addresses the element of intent that is inherent in the term retaliate and is therefore in keeping with the wording of the statute." - See paragraphs 80 and 81.

Civil Rights - Topic 7069.03

Federal, provincial or territorial legislation - Commissions or boards - Jurisdiction - Complaints - Retaliation or reprisal - The Alberta Court of Appeal held that a human rights panel "erred in considering the perception of 'the reasonable human rights complainant' to be part of the test [for retaliation]. The complainant's perceptions regarding linkage, reasonable or otherwise, play no role in the analysis. Rather, what a complainant needs to show, directly or by inference, is that, on a balance of probabilities, the respondent's alleged treatment was retaliatory, meaning it was connected to the initial complaint and the respondent intended (in the sense of a deliberate response) to pay back the complainant for his or her complaint. I agree that payback need not be the only reason for the conduct complained about, but so long as it forms part of the motive for the conduct at issue, it will be retaliatory. Mixed intents will meet the test for retaliation so long as the payback intent forms a part of the substantial reasons for the action. It need not be the dominant intent, but a minor or trivial intent is not enough. Retaliation also includes post-complaint conduct that is intended to prevent or discourage future complaints of discrimination. For example, in a case where there is no evidence to support the initial allegation of discrimination but the employer dismisses or disciplines the employee because it is annoyed by the employee's complaint. Even though there was no discrimination, retaliation has nevertheless been established." - See paragraphs 87 to 89.

Civil Rights - Topic 7069.03

Federal, provincial or territorial legislation - Commissions or boards - Jurisdiction - Complaints - Retaliation or reprisal - Walsh filed a discrimination complaint with the Human Rights Commission against her employer Mobil Oil Canada - The complaint was dismissed - Walsh was dismissed on the same date - Walsh filed a retaliation complaint - That complaint was also dismissed - Walsh sought judicial review of the decisions - The reviewing judge overturned most of the panel's findings - Mobil appealed - The Alberta Court of Appeal upheld the findings of discrimination and retaliation - With respect to retaliation, the court considered, inter alia, that Walsh was subjected to extremely aggressive monitoring of work performance after the discrimination complaint was filed - The plan imposed on her was unfair in that she was expected to fulfill extra remedial functions at a time when her supervisor (North) acknowledged that she was already challenged by extra work - Moreover, the plan was a moving target, continually revised at North's whim - North could not wait for deadlines to pass before he advised her that she was non-compliant - On the same day that he advised Walsh that she was to meet certain objectives by a certain date he sought authority to dismiss her - Further, Mobil took several actions that coincided with steps in the complaints process - Her previous supervisor had told her that he would be "in her face" shortly after a meeting regarding her discrimination complaint - To that date, she had always received at least satisfactory work appraisals - Within five to six months she received a poor performance appraisal - This was a very short time for such a severe deterioration in performance by a long term employee - Finally, much of what was forced on Walsh as part of the remedial plan was unfair to the point of demeaning her - See paragraphs 93 to 107.

Civil Rights - Topic 7108

Federal, provincial or territorial legislation - Practice - Costs (incl. on appeal) - Walsh filed a discrimination complaint with the Human Rights Commission against her employer Mobil Oil Canada - The complaint was dismissed - Walsh was dismissed on the same date - Walsh filed a retaliation complaint - That complaint was also dismissed - Walsh sought judicial review of the decisions - The reviewing judge overturned most of the panel's findings and awarded solicitor-client costs - Mobil appealed - The Alberta Court of Appeal held that the reviewing judge erred in principle in awarding costs based on Mobil's pre-litigation conduct - Solicitor-client costs were awarded where the conduct of a party had been "reprehensible, scandalous or outrageous" - Moreover, the conduct must have occurred during the course of the litigation - If the party's pre-litigation conduct was outrageous or reprehensible, that might be a factor that was relevant to the ultimate damage award - The proper award was party and party costs - See paragraphs 111 to 113.

Civil Rights - Topic 7115

Federal, provincial or territorial legislation - Practice - Judicial review - [See Administrative Law - Topic 3345.2 ].

Civil Rights - Topic 7115

Federal, provincial or territorial legislation - Practice - Judicial review - Standard of review - The Alberta Court of Appeal held that "... in light of Alberta's human rights legislation, the existing case law answers the question of standard of review, at least in a general sense. It indicates that human rights tribunals ... may be afforded some deference with respect to findings of fact and credibility, given their role in hearing viva voce evidence. However, reviewing courts will be unconstrained in their assessment of the evidence as it relates to the applicable law, particularly where an error is found in respect of the tribunal's articulation of the law." - See paragraph 55.

Civil Rights - Topic 7115

Federal, provincial or territorial legislation - Practice - Judicial review - Standard of review - Walsh filed a discrimination complaint with the Human Rights Commission against her employer Mobil Oil Canada - The complaint was dismissed - Walsh was dismissed on the same date - Walsh filed a retaliation complaint - That complaint was also dismissed - Walsh sought judicial review of the decisions - The reviewing judge overturned most of the panel's findings - Mobil appealed - The Alberta Court of Appeal stated that there was little conflict respecting the facts - Rather, the parties disputed what the outcome ought to be when the law was applied to those facts - They also differed on what inferences should be drawn from proven facts - Mobil took issue with the reviewing judge's choice of standard of review only on the question of whether its treatment of Walsh during a certain period constituted discrimination - The court held that it was open to the reviewing judge to assess the panel's decision regarding the test for discrimination on a standard of correctness, and to conduct an unrestrained assessment of the evidence before him on the basis of the proper test - Similarly, the reviewing judge ought to have assessed the panel's decision regarding the test for retaliation on a correctness standard - Moreover, with some curial deference accorded to the panel on findings of fact, it was within his jurisdiction to conduct a thorough review of the facts on the record before him in determining whether that test was met - See paragraphs 56 to 57.

Practice - Topic 7407

Costs - Solicitor and client costs - General principles - Power to award solicitor and client costs - [See Civil Rights - Topic 7108 ].

Practice - Topic 7408

Costs - Solicitor and client costs - General principles - Solicitor and client costs as damages or punishment - [See Civil Rights - Topic 7108 ].

Cases Noticed:

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 2003 SCC 20, refd to. [para. 43].

United Nurses of Alberta, Local 115 v. Calgary Health Authority (Foothills Medical Centre) (2004), 339 A.R. 265; 312 W.A.C. 265; 2004 ABCA 7, refd to. [para. 43].

Health Sciences Association (Alta.) v. David Thompson Health Region - see Health Sciences Association (Alta.) et al. v. Provincial Health Authorities (Alta.) et al.

Health Sciences Association (Alta.) et al. v. Provincial Health Authorities (Alta.) et al. (2004), 348 A.R. 361; 321 W.A.C. 361; 2004 ABCA 185, refd to. [para. 43].

Alberta (Minister of Municipal Affairs) v. Municipal Government Board (Alta.) et al. (2002), 312 A.R. 40; 281 W.A.C. 40; 2002 ABCA 199, refd to. [para. 43].

Canadian Union of Public Employees Local 784 v. Board of Education of Edmonton School District No. 7 (2005), 363 A.R. 123; 343 W.A.C. 123; 2005 ABCA 74, refd to. [para. 43].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, folld. [para. 44].

Toronto (City) et al. v. Canadian Union of Public Employees, Local 79 et al., [2003] 3 S.C.R. 77; 311 N.R. 201; 179 O.A.C. 291; 2003 SCC 63, refd to. [para. 46].

Dickason and Human Rights Commission (Alta.) v. University of Alberta, [1992] 2 S.C.R. 1103; 141 N.R. 1; 127 A.R. 241; 20 W.A.C. 241, refd to. [para. 49].

Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; 149 N.R. 1; 100 D.L.R.(4th) 658, refd to. [para. 51].

University of British Columbia v. Berg, [1993] 2 S.C.R. 353; 152 N.R. 99; 26 B.C.A.C. 241; 44 W.A.C. 241; 102 D.L.R.(4th) 665, refd to. [para. 51].

Gould v. Yukon Order of Pioneers, Dawson Lodge No. 1 et al., [1996] 1 S.C.R. 571; 194 N.R. 81; 72 B.C.A.C. 1; 119 W.A.C. 1; 133 D.L.R.(4th) 449, refd to. [para. 52].

Workmen's Compensation Board v. Greer, [1975] 1 S.C.R. 347; 1 N.R. 99; 7 N.B.R.(2d) 171; 42 D.L.R.(3d) 595, refd to. [para. 52].

Human Rights Commission (Ont.) and Bates v. Zurich Insurance Co., [1992] 2 S.C.R. 321; 138 N.R. 1; 55 O.A.C. 81; 93 D.L.R.(4th) 346, refd to. [para. 53].

United Food and Commercial Workers, Local 401 v. Human Rights and Citizenship Commission (Alta.) - see Canada Safeway Ltd. v. Human Rights and Citizenship Commission (Alta.) et al.

Canada Safeway Ltd. v. Human Rights and Citizenship Commission (Alta.) et al. (2003), 330 A.R. 340; 299 W.A.C. 340; 231 D.L.R.(4th) 285; 2003 ABCA 246, refd to. [para. 54].

Alberta (Minister of Human Resources and Employment) v. Director of the Human Rights, Citizenship and Multiculturalism Commission (Alta.) et al. (2006), 391 A.R. 31; 377 W.A.C. 31; 2006 ABCA 235, refd to. [para. 54].

Alberta (Minister of Human Rights and Employment) v. Weller - see Alberta (Minister of Human Resources and Employment) v. Director of the Human Rights, Citizenship and Multiculturalism Commission (Alta.) et al.

Human Rights and Citizenship Commission (Alta.) et al. v. Kellogg Brown & Root (Canada) Co. (2007), 425 A.R. 35; 418 W.A.C. 35; 84 Alta. L.R.(4th) 205; 2007 ABCA 426, refd to. [para. 54].

O'Connell v. Canadian Broadcasting Corp., [1990] C.H.R.D. No. 6, refd to. [para. 60].

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; 91 N.R. 255; 56 D.L.R.(4th) 1, refd to. [paras. 61, 136].

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1; 170 D.L.R.(4th) 1, refd to. [para. 62].

Gwinner et al. v. Alberta, [2002] 4 W.W.R. 454; 321 A.R. 279; 2002 ABQB 685, affd. affd. (2004), 354 A.R. 21; 329 W.A.C. 21; 2004 ABCA 210, refd to. [para. 62].

Gerin v. I.M.P. Group Ltd. (No. 2) (1996), 29 C.H.R.R. D/21; [1996] N.S.H.R.B.I.D. No. 1 (N.S.H.R.T.), dist. [para. 66]; refd to. [para. 119].

Entrop v. Imperial Oil Ltd. (No. 7) (1995), 23 C.H.R.R. D/213 (Ont. Bd. Inq.), refd to. [paras. 66, 119].

Entrop et al. v. Imperial Oil Ltd. (2000), 137 O.A.C. 15; 50 O.R.(3d) 18; 189 D.L.R.(4th) 14 (C.A.), refd to. [para. 67].

Jones v. Amway of Canada Ltd. - see Jones v. Human Rights Commission (Ont.) et al.

Jones v. Human Rights Commission (Ont.) et al. (2002), 159 O.A.C. 331; 2002 CarswellOnt 1191 (Div. Ct.), refd to. [paras. 68, 125].

Friesen v. Minister of National Revenue, [1995] 3 S.C.R. 103; 186 N.R. 243; 127 D.L.R.(4th) 193, refd to. [para. 72].

R. v. Hydro-Québec, [1997] 3 S.C.R. 213; 217 N.R. 241; 151 D.L.R.(4th) 32, refd to. [para. 72].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1; 36 O.R.(3d) 418, refd to. [para. 72].

CCH Canadian Ltd. et al. v. Law Society of Upper Canada, [2004] 1 S.C.R. 339; 317 N.R. 107; 2004 SCC 13, refd to. [para. 72].

Canada 3000 Inc. (Bankrupt), Re, [2006] 1 S.C.R. 865; 349 N.R. 1; 212 O.A.C. 338; 2006 SCC 24, refd to. [para. 72].

Potash Corp. of Saskatchewan Inc. v. Scott et al. (2008), 377 N.R. 91; 2008 SCC 45, refd to. [para. 73].

Dukart v. Surrey (District) et al., [1978] 2 S.C.R. 1039; 21 N.R. 471; 86 D.L.R.(3d) 609, refd to. [para. 74].

Calgary (City) v. Municipal Government Board (Alta.) et al. (2008), 432 A.R. 202; 424 W.A.C. 202; 2008 ABCA 187, refd to. [para. 74].

Mackin v. New Brunswick (Minister of Finance) - see Rice, P.C.J. v. New Brunswick.

Rice, P.C.J. v. New Brunswick, [2002] 1 S.C.R. 405; 282 N.R. 201; 245 N.B.R.(2d) 299; 636 A.P.R. 299; 2002 SCC 13, refd to. [paras. 111, 158].

British Columbia (Minister of Forests) v. Okanagan Indian Band et al., [2003] 3 S.C.R. 371; 313 N.R. 84; 189 B.C.A.C. 161; 309 W.A.C. 161; 2003 SCC 71, refd to. [para. 111].

Young v. Young et al., [1993] 4 S.C.R. 3; 160 N.R. 1; 34 B.C.A.C. 161; 56 W.A.C. 161; 108 D.L.R.(4th) 193, refd to. [para. 112].

Hill v. Church of Scientology of Toronto and Manning, [1995] 2 S.C.R. 1130; 184 N.R. 1; 84 O.A.C. 1; 24 O.R.(3d) 865, refd to. [para. 112].

Jamieson v. Victoria Native Friendship Centre, [1994] B.C.C.H.R.D. No. 42; 22 C.H.R.R.D/250, refd to. [para. 125].

Ketola v. Value Propane Inc. (No. 1), [2002] O.H.R.B.I.D. No. 13; 44 C.H.R.R. D/20, refd to. [para. 125].

Honey v. Coquitlam School District No. 43, [1999] B.C.H.R.T.D. No. 18, refd to. [para. 126].

Bressette v. Kettle and Stony Point First Nation Band Council No. 3, 2004 CHRT 40; 52 C.H.R.R. D/61, refd to. [para. 126].

Nova Scotia Construction Safety Association et al. v. Human Rights Commission (N.S.) et al. (2006), 244 N.S.R.(2d) 321; 2006 NSCA 63, refd to. [para. 126].

A.Y.S.A. Amateur Youth Soccer Association v. Canada Revenue Agency (2007), 367 N.R. 264; 287 D.L.R.(4th) 4; 2007 SCC 42, refd to. [para. 129].

Québec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (Ville) et al., [2000] 1 S.C.R. 665; 253 N.R. 107; 2000 SCC 27, refd to. [para. 131].

Vriend et al. v. Alberta, [1998] 1 S.C.R. 493; 224 N.R. 1; 212 A.R. 237; 168 W.A.C. 237; 156 D.L.R.(4th) 385, refd to. [para. 132].

Robichaud v. Canada (Treasury Board) - see Brennan v. Canada and Robichaud.

Brennan v. Canada and Robichaud, [1987] 2 S.C.R. 84; 75 N.R. 303; 40 D.L.R.(4th) 577, refd to. [para. 132].

Human Rights Commission (Ont.) and O'Malley v. Simpsons-Sears, [1985] 2 S.C.R. 536; 64 N.R. 161; 12 O.A.C. 241; 23 D.L.R.(4th) 321, refd to. [para. 137].

Canadian National Railway Co. v. Canadian Human Rights Commission - see Action Travail des Femmes v. Canadian National Railway Co. et al.

Action Travail des Femmes v. Canadian National Railway Co. et al., [1987] 1 S.C.R. 1114; 76 N.R. 161; 40 D.L.R.(4th) 193, refd to. [para. 137].

Canadian National Railway Co. v. Canadian Human Rights Commission and Bhinder, [1983] 2 F.C. 531; 48 N.R. 81; 147 D.L.R.(3d) 312 (F.C.A.), affd. [1985] 2 S.C.R. 561; 63 N.R. 185; 23 D.L.R.(4th) 481, refd to. [para. 140].

Public Service Employee Relations Commission (B.C.) v. British Columbia Government and Service Employees' Union, [1999] 3 S.C.R. 3; 244 N.R. 145; 127 B.C.A.C. 161; 207 W.A.C. 161; 176 D.L.R.(4th) 1, refd to. [para. 143].

McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l'Hôpital général de Montréal et al., [2007] 1 S.C.R. 161; 356 N.R. 177; 2007 SCC 4, refd to. [para. 144].

Holden v. Canadian National Railway (1990), 112 N.R. 395; 14 C.H.R.R. D/12 (F.C.A.), refd to. [para. 155].

Friends of the Oldman River Society v. Canada (Minister of Transport and Minister of Fisheries and Oceans), [1992] 1 S.C.R. 3; 132 N.R. 321; 88 D.L.R.(4th) 1, refd to. [para. 158].

Jackson and Parkview Holdings Ltd. v. Trimac Industries Ltd. et al., [1993] 4 W.W.R. 670; 138 A.R. 161 (Q.B.), affd. (1994), 155 A.R. 42; 73 W.A.C. 42 (C.A.), refd to. [para. 158].

Statutes Noticed:

Human Rights, Citizenship and Multiculturalism Act, R.S.A. 2000, c. H-14, sect. 10(1) [para. 65].

Authors and Works Noticed:

Côté, Pierre-André, Interpretation of Legislation in Canada (3rd Ed. 2000), p. 277 [para. 74].

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), p. 87 [paras. 72, 129].

Sullivan, Ruth, Sullivan and Driedger on the Construction of Statutes (4th Ed. 2002), p. 162 [para. 74].

Counsel:

S.P. Chotalia, Q.C., for the respondent/appellant;

R.F. Steele and S.J. Martyn, for the appellant/respondent.

This appeal was heard on March 14, 2008, by Côté, Paperny and Ritter, JJ.A., of the Alberta Court of Appeal. The court delivered its reasons for judgment on August 5, 2008, including the following opinions:

Ritter, J.A. (Côté, J.A., concurring) - see paragraphs 1 to 114;

Paperny, J.A. - see paragraphs 115 to 162.