Walsh v. Mobil Oil Canada et al., 2013 ABCA 238

• Judge: Paperny, McDonald and O'Ferrall, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: April 05, 2013
• Citations: 2013 ABCA 238;(2013), 553 A.R. 360

Walsh v. Mobil Oil Can. (2013), 553 A.R. 360; 583 W.A.C. 360 (CA)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. JL.009

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

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

(1201-0235-AC; 2013 ABCA 238)

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

Alberta Court of Appeal

Paperny, McDonald and O'Ferrall, JJ.A.

July 4, 2013.

Summary:

In 1991, Walsh filed a complaint of sex discrimination relating to equal pay with the Human Rights Commission (HRC) against her employer Mobil Oil Canada. On February 21, 1995, the Director dismissed her complaint. On the same date, Walsh was dismissed. Walsh filed a retaliation complaint. On December 16, 2005, a one person panel of the HRC upheld the first complaint to a limited extent. The panel found that Walsh was not being paid commensurate with her male counterparts and also confirmed that she was treated differently when she was placed in the land representative AA category, but noted that this was outside the relevant limitation period. The panel restricted Walsh's remedy "to the Panel's finding that between August 1990 and August 1991, Mobil Oil Canada discriminated against the complainant in the areas of her salary and her job category contrary to sections 6 and 7 of the Act." However, the panel found that many acts towards Walsh between December 1990 and June of 1991 constituted "paternalistic management" motivated by a genuine concern for Walsh's well being and did not amount to discrimination. The panel dismissed the second complaint, concluding that there was no link between Walsh's dismissal and her human rights complaint. Walsh appealed the decisions.

The Alberta Court of Queen's Bench, in a decision reported at [2007] A.R. Uned. 257, allowed the appeal. 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 to limit the damages available to Walsh based on the provision that limited the time within which a complaint had to be filed; and by holding 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.

The Alberta Court of Queen's Bench, in a decision reported at [2007] A.R. Uned. 748, awarded Walsh solicitor-client costs. Mobil appealed the decisions on the merits and on costs.

The Alberta Court of Appeal, per Ritter and Côté, JJ.A., in a decision reported at 440 A.R. 199; 438 W.A.C. 199, 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. An HRC tribunal made decisions relating to remedies, costs and interest. Both Walsh and Mobil sought judicial review, raising various grounds of appeal.

The Alberta Court of Queen's Bench, in a decision reported at 548 A.R. 41, allowed Walsh's costs appeal with regard to personal costs only. The decision did not refer to any reasons why Walsh's personal costs were not compensable, nor any details with respect to her claim of $30,508.56 in that regard. The court directed that issue to the tribunal for further consideration. The court dismissed all of Mobil's appeal. Both Walsh and Mobil appealed the decision regarding remedy.

The Alberta Court of Appeal dismissed the appeal and cross-appeal. The court directed the parties to provide submissions regarding costs.

Editor's Note: The panel hearing the discrimination complaint had initially determined that it lacked jurisdiction because of delay on the basis that the employer had been prejudiced in its right to a fair hearing; however, on appeal to the Alberta Court of Queen's Bench, the complaint was remitted for hearing. See (2004), 370 A.R. 38.

Administrative Law - Topic 25

General - Abuse of process - Multiplicity of proceedings - In 1991, Walsh filed a complaint of discrimination on the basis of sex relating to equal pay against her employer (Mobil) - In 1995, she also filed a retaliation complaint - In the meantime, in January 1994, Walsh was involved in a work-related motor vehicle accident and suffered lasting injuries - The Worker's Compensation (WC) Board pursued a civil remedy against the other driver on Walsh's behalf - Walsh's counsel initially took the position in the litigation that the accident had affected her earnings - The total damages claim in the civil action was $755,485, which included both past and future loss of earnings - Walsh confirmed that the accident was a cause of her lost wages in three discovery examinations (1997, 1998 and 2000) - However, when the WC Board settled Walsh's claim through mediation in 2004, none of the final $145,000 settlement amount was attributed to lost wages - After a number of administrative and court proceedings, Walsh was successful on both her discrimination and retaliation complaints regarding liability - A one person tribunal (Bryant) made decisions relating to remedies, costs and interest - On judicial review, the chambers judge rejected Mobil's submission that Bryant erred by failing to properly consider Walsh's election to attribute her income losses after she was terminated to the motor vehicle accident, thus allowing an abuse of process - Bryant concluded that Walsh had the right to pursue her claims in both the WC and human rights forums because each forum would address the claims differently based on their distinct mandates - She also appeared to have accepted that Walsh did not in fact receive any compensation for lost earnings in the settlement of the motor vehicle action - The test for estoppel by election had not been met - Walsh did not seek to retain an award for lost income from the accident litigation and claim an award under the same head of damage in the human rights hearing - She had abandoned the lost income claim in the settlement of the accident action - In addition, Mobil did not rely on an election to its detriment - The choice to pursue lost damages in the accident litigation did not indicate a final or unequivocal election to abandon a claim in the human rights forum - Given the tribunal's finding relating to the contribution of both the physical and psychological consequences of the accident and the consequences of the discrimination and retaliation to Walsh's health, it could not be said that the claims were "diametrically opposed", or that Walsh acted with full knowledge of whether the accident or the discrimination and retaliation caused her losses - Mobil relied extensively on representations Walsh made during the course of the accident litigation - These representations were not made to Mobil, nor were they alleging estoppel by representation - Nor had abuse of process been established - Loss of income had not been determined in the accident litigation by any judicial decision and the parties were not the same - While issue estoppel was not the only factor that might give rise to abuse of process, there were no real issues of judicial economy, consistency or finality here, and no challenge to the integrity of the administration of justice - There was no injustice in allowing the claim to proceed in the human rights forum, particularly as Bryant was careful to distinguish between loss of income attributable to discrimination and retaliation and loss attributable to injuries caused by the motor vehicle accident - On appeal, the Alberta Court of Appeal held that these conclusions regarding election and abuse of process were not only reasonable, but correct - See paragraphs 87 to 96.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Apprehension of - In 1991, Walsh filed a complaint of discrimination on the basis of sex relating to equal pay - The Alberta Human Rights Commission (HRC) did not investigate the complaint until September 1994 - On February 21, 1995, the Director dismissed her complaint - On the same date, Walsh was dismissed - Walsh filed a retaliation complaint - A one person HRC panel (Bryant) upheld the first complaint to a limited extent and dismissed the second complaint - Walsh appealed the decisions - The appeal was allowed and Walsh was awarded solicitor-client costs - Mobil appealed - The Court of Appeal 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 - The court remitted the matter to the Commission to proceed with a remedy hearing - Once again, Bryant was appointed (this time as a "tribunal" rather than a "panel" in accordance with changes to the legislation) - Bryant made decisions relating to remedies, costs and interest - On judicial review, the chambers judge rejected Walsh's argument that having Bryant conduct the hearings gave rise to an apprehension of bias - Walsh appealed - The Alberta Court of Appeal held that where it could be inferentially suggested that Bryant made adverse credibility findings against Walsh, a motion for recusal might have been successful if it had been brought before the tribunal - While the failure to raise reasonable apprehension of bias at the time in question was not necessarily determinative, in this case, any objection to the tribunal's constitution should have been made to the tribunal - The sorry saga of the litigation, the pleas of both parties to put an end to the litigation and take all steps necessary to avoid further litigation, led the court to conclude that to allow this issue to be raised for the first time on appeal would work an injustice to all - See paragraphs 73 to 75.

Administrative Law - Topic 2493

Natural justice - Procedure - At hearing - Right to make submissions - Walsh brought a complaint of sex discrimination and later a retaliation complaint against her employer (Mobil) before the Human Rights Commission (HRC) - Walsh was ultimately successful on both complaints and the HRC awarded her damages against Mobil - The damage award was upheld on judicial review - Both Walsh and Mobil appealed - Walsh submitted, inter alia, that the tribunal breached its duty of fairness because she did not have a reasonable opportunity to make submissions on an expert report requested by the one person tribunal (Bryant), or the directions or factual assumptions to be used in calculating the amount of damages, before Bryant issued her decision - The Alberta Court of Appeal stated that the requested expert report was sought after discussion between Bryant and the parties, and with both counsel's agreement - Bryant needed professional assistance with specific calculations - She suggested Brown - Walsh agreed - The extent of the agreement was less clear - Walsh asserted that she ought to have been able to make submissions regarding the report before Bryant relied on it - Mobil submitted that the procedure was agreed to and no issue had been taken regarding the process - The court stated that regardless of whether the chance to make submissions on these points was a fundamental requirement of the duty of fairness here (something the court could not rule on given the state of the record), it would have been prudent for Bryant to provide the report to the parties and receive submissions on it before relying on it - Further, it was incumbent on Walsh to raise her concerns at the time and not wait until the appeal - The court declined to make a determination on the process at this point - See paragraphs 71 and 72.

Civil Rights - Topic 7115

Federal, provincial or territorial legislation - Practice - Judicial review (incl. standard of review) - Walsh brought a complaint of sex discrimination and later a retaliation complaint against her employer Mobil Oil Canada before the Human Rights Commission (HRC) - Walsh was ultimately successful on both complaints and the HRC awarded her damages against Mobil - The damage award was upheld on judicial review - Both Walsh and Mobil appealed - The Alberta Court of Appeal stated that "The extent or measure of the loss sustained by [Walsh] and the amount of compensation to be awarded to her is not a question of jurisdiction, nor a question of law of central importance to the legal system as a whole that is outside the Tribunal's area of expertise. Accordingly, we agree with the chambers judge that the standard of review for the Tribunal's assessment of damages was and is reasonableness." - See paragraph 27.

Civil Rights - Topic 7115

Federal, provincial or territorial legislation - Practice - Judicial review (incl. standard of review) - In 1991, Walsh filed a complaint of discrimination on the basis of sex relating to equal pay against her employer (Mobil) - In 1995, she also filed a retaliation complaint - In the meantime, in January 1994, Walsh was involved in a work-related motor vehicle accident and suffered lasting injuries - The Worker's Compensation (WC) Board pursued a civil remedy against the other driver on Walsh's behalf - Walsh's counsel initially took the position in the litigation that the accident had affected her earnings - The total damages claim in the civil action was $755,485, which included both past and future loss of earnings - Walsh confirmed that the accident was a cause of her lost wages in three discovery examinations (1997, 1998 and 2000) - However, when the WC Board settled Walsh's claim through mediation in 2004, none of the final $145,000 settlement amount was attributed to lost wages - After a number of administrative and court proceedings, Walsh was successful on both her discrimination and retaliation complaints regarding liability - A one person tribunal (Bryant) made decisions relating to remedies, costs and interest - On judicial review, a chambers judge rejected Mobil's submission that Bryant erred by failing to properly consider Walsh's election to attribute her income losses after she was terminated to the motor vehicle accident, thus allowing an abuse of process - Both Walsh and Mobil appealed on the issue of remedy - The Alberta Court of Appeal held that the standard of review of reasonableness should be applied to Bryant's decision on abuse of process and election - Similarly, the issue of whether Walsh's claim was barred given the exclusivity clause under the Workers' Compensation Act also attracted a reasonableness standard - See paragraphs 80 to 85.

Civil Rights - Topic 7185

Federal, provincial or territorial legislation - Remedies - Damages - The Alberta Court of Appeal discussed the assessment of damages for lost income in the human rights context - The court stated that "A causation analysis of some form is therefore required. The causation analysis that springs to mind is that utilized in tort law, the 'but for' test. The plaintiff must show that 'but for' the defendant's negligent acts (here read discriminatory for negligent) the injury would not have occurred. The 'but for' test is challenging to apply in circumstances where there may be multiple independent causes that are alleged to have brought about a single harm, such as we have here. This difficulty may justify relaxing the requirement of 'but for' causation and finding liability on a material contribution to risk approach. However, the jurisprudence to date has not required such a precise analysis in human rights cases. The most that can be said is that tribunals have drawn from contract and tort law, particularly by importing the need for a causal link and the duty to mitigate, to ascertain the amount and extent of wage loss damages sustained as a result of discriminatory conduct." - See paragraphs 28 to 44.

Civil Rights - Topic 7185

Federal, provincial or territorial legislation - Remedies - Damages - In 1991, Walsh filed a complaint of sex discrimination relating to equal pay against her employer (Mobil) - In 1995, she also filed a retaliation complaint - In the meantime, in January 1994, Walsh was involved in a work-related motor vehicle accident and suffered lasting injuries - The Worker's Compensation Board (WCB) pursued a civil remedy against the other driver on Walsh's behalf - Walsh's counsel initially took the position in the litigation that the accident had affected her earnings - The total claim for damages in the civil action was $755,485, which included both past and future loss of earnings - Walsh confirmed that the accident was a cause of her lost wages in three discovery examinations (1997, 1998 and 2000) - However, when the WCB settled Walsh's claim through mediation in 2004, none of the final $145,000 settlement amount was attributed to lost wages - Walsh claimed that this head of damages was dropped during the settlement negotiations - After a number of administrative and court hearings, Walsh was successful on both complaints - A one person tribunal (Bryant) appointed by the Alberta Human Rights Commission made decisions relating to remedies, costs and interest - Walsh and Mobil appealed - The appeals were consolidated in one judicial review application - Walsh submitted, inter alia, that if Bryant had properly applied the "but for" test for causation, she would have awarded loss of income and related pension and fringe benefits to Walsh's date of retirement, and not cut off liability as at the end of 2000 - Walsh submitted that Bryant should have found that, without the retaliation, she would not have been fired and would still be employed by Mobil - She submitted that her physical limitations and concerns would have been accommodated by Mobil as required - A chambers judge rejected the submissions - Walsh appealed - The Alberta Court of Appeal dismissed the appeal - Bryant heard substantial medical evidence as to Walsh's mental and physical health - She found that Walsh was unable to work after her termination because she was suffering mental distress caused by Mobil's conduct, which exacerbated her physical problems - She also found that after 2000, Walsh's depression and physical problems stemmed from other sources - That conclusion, while not the only one available, was sustainable on the record - See paragraphs 45 to 52.

Civil Rights - Topic 7185

Federal, provincial or territorial legislation - Remedies - Damages - In 1991, Walsh filed a complaint of discrimination on the basis of sex relating to equal pay against her employer (Mobil) - In 1995, she also filed a retaliation complaint - In the meantime, in January 1994, Walsh was involved in a work-related motor vehicle accident and suffered lasting injuries - The Worker's Compensation Board (WCB) pursued a civil remedy against the other driver on Walsh's behalf - Walsh's counsel initially took the position in the litigation that the accident had affected her earnings - The total claim for damages in the civil action was $755,485, which included both past and future loss of earnings - Walsh confirmed that the accident was a cause of her lost wages in three discovery examinations (1997, 1998 and 2000) - However, when the WCB settled Walsh's claim through mediation in 2004, none of the final $145,000 settlement amount was attributed to lost wages - After a number of administrative and court hearings, Walsh was successful on both complaints - A one person tribunal (Bryant) appointed by the Alberta Human Rights Commission made decisions relating to remedies, costs and interest - On judicial review, Mobil submitted that Bryant erred, inter alia, in determining that Walsh would have obtained a salary grade of 14 - Walsh responded that Bryant should have placed her in salary grade 16 primarily on the basis of her "equal pay for equal work" submissions - A chambers judge rejected both submissions - She accorded the tribunal the deference due to a factual finding reached as the result of the correct application of the law, with the result that she agreed with Bryant's assessment of damages for lost income - Walsh appealed - The Alberta Court of Appeal dismissed the appeal - Bryant's placement of Walsh in the salary grid was not unreasonable - See paragraphs 53 to 58.

Civil Rights - Topic 7185

Federal, provincial or territorial legislation - Remedies - Damages - In 1991, Walsh filed a complaint of discrimination on the basis of sex relating to equal pay against her employer (Mobil) - In 1995, she also filed a retaliation complaint - After a number of administrative and court hearings, Walsh was successful on both complaints - A one person tribunal (Bryant) appointed by the Alberta Human Rights Commission made decisions relating to remedies, costs and interest - On judicial review, Mobil submitted that Bryant erred, inter alia, in misinterpreting and misapplying the law regarding general damages in the human rights context, thus awarding excessive, unreasonable and unprecedented general damages, while Walsh submitted that the award should have been higher - A chambers judge upheld the $10,000 award for the first complaint and $25,000 for the second - Both Walsh and Mobil appealed the awards - The Alberta Court of Appeal noted that this was an egregious case both in terms of the wilfulness of Mobil's conduct, the duration of that conduct, the damaging impact on Walsh and the untenable position that Mobil maintained throughout the litigation that Walsh was terminated for cause - The record was replete with evidence of the negative impact that Mobil's conduct had on Walsh's self-respect and confidence - The court held that both awards were on the low end of what it considered appropriate in the circumstances, but the standard of review (unreasonableness) did not permit it to interfere - See paragraphs 124 to 127.

Equity - Topic 4630

Election - When applicable - [See Administrative Law - Topic 25 ].

Estoppel - Topic 378

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Parties - [See Administrative Law - Topic 25 ].

Estoppel - Topic 386

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Issues decided in prior proceedings - [See Administrative Law - Topic 25 ].

Estoppel - Topic 1426

Estoppel in pais (by conduct) - Acceptance - Of money or property - [See Administrative Law - Topic 25 ].

Practice - Topic 9017

Appeals - Restrictions on argument on appeal - Failure to object at trial - [See Administrative Law - Topic 2493 ].

Torts - Topic 54

Negligence - Causation - Test for (incl. ''but for'' test and ''material contribution'' test) - [See first and second Civil Rights - Topic 7185 ].

Cases Noticed:

Canada (Attorney General) v. Mowat, [2011] 3 S.C.R. 471; 422 N.R. 248; 2011 SCC 53, appld. [para. 24].

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, refd to. [para. 24].

Brennan v. Canada and Robichaud, [1987] 2 S.C.R. 84; 75 N.R. 303, refd to. [para. 31].

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

Foreman v. VIA Rail (1980), 1 C.H.R.R. D/223 (Can. Human Rights Rev. Trib.), refd to. [para. 33].

Impact Interiors Inc. v. Ontario (Human Rights Commission), 35 C.H.R.R. D/477 (Ont. C.A.), refd to. [para. 34].

Public Service Alliance of Canada v. Staff of the Non-Public Funds, Canadian Forces et al. (1996), 199 N.R. 81; 27 C.H.R.R. D/488 (F.C.A.), refd to. [para. 34].

PSAC v. Canada (Department of National Defence) - see Public Service Alliance of Canada v. Staff of the Non-Public Funds, Canadian Forces et al.

Piazza and Human Rights Commission (Ont.) v. Airport Taxicab (Malton) Association and Mann (1989), 34 O.A.C. 349; 69 O.R.(2d) 281 (C.A.), refd to. [para. 35].

Chopra v. Canada (Attorney General) et al. (2007), 369 N.R. 207; 2007 FCA 268, appld. [para. 36].

Canada (Attorney General) v. McAlpine, [1989] 3 F.C. 530; 99 N.R. 221 (F.C.A.), refd to. [para. 36].

Canada (Attorney General) v. Morgan and Canadian Human Rights Commission, [1992] 2 F.C. 401; 135 N.R. 27 (F.C.A.), refd to. [para. 37].

Morgan, Torres v. Royalty Kitchenware (1982), 3 C.H.R.R. D/858, refd to. [para. 42].

Rodley v. Barclay (1993), 19 C.H.R.R. D/503 (Ont. Bd. Inquiry), refd to. [para. 42].

Holness v. South Alder Farms Ltd. (1999), C.H.R.R. Doc. 99-019 (B.C.H.R.T.), refd to. [para. 42].

Arunachalam v. Best Buy Canada Ltd., 2010 HRTO 1880 (Ont. Human Rights Trib.), refd to. [para. 60].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 69].

Alberta Union of Provincial Employees et al. v. Lethbridge Community College (2002), 303 A.R. 124; 273 W.A.C. 124; 215 D.L.R.(4th) 176; 2002 ABCA 125, revd. [2004] 1 S.C.R. 727; 319 N.R. 201; 348 A.R. 1; 321 W.A.C. 1; 2004 SCC 28, refd to. [para. 79].

Toronto (City) 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. 80].

Workers' Compensation Board (B.C.) v. Human Rights Tribunal (B.C.) et al., [2011] 3 S.C.R. 471; 421 N.R. 338; 311 B.C.A.C. 1; 529 W.A.C. 1; 2011 SCC 52, refd to. [para. 82].

Workers' Compensation Board of British Columbia v. Figliola - see Workers' Compensation Board (B.C.) v. Human Rights Tribunal (B.C.) et al.

Manitoba Association of Health Care Professionals v. Nor-Man Regional Health Authority Inc., [2011] 3 S.C.R. 616; 423 N.R. 95; 2011 SCC 59, refd to. [para. 82].

Niagara North Condominium Corp. No. 125 v. Waddington (2007), 222 O.A.C. 66; 2007 ONCA 184, refd to. [para. 94].

Counsel:

Delorie Walsh, the appellant, in person;

R.F. Steele and R.S. West, for the respondent;

J.R. Ashcroft, for the Alberta Human Rights Commission.

This appeal was heard on April 5, 2013, by Paperny, McDonald and O'Ferrall, JJ.A., of the Alberta Court of Appeal. The court delivered the following memorandum of judgment on July 4, 2013, which was comprised of the following opinions:

Paperny and McDonald, JJ.A. - see paragraphs 1 to 104;

O'Ferrall, J.A. - see paragraphs 105 to 124.