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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:

• [45] Counsel stated that this has been a very lengthy process. Mobil recognizes that Ms. Walsh's two complaints have been upheld by the Courts and it is prepared to address the remedy in good faith. Nonetheless, the remedy has exploded into a massive personal injury case of over four million dollars.
• [48] Counsel argued that any remedy must make common sense and have reasonable limits. Under the Act, the Tribunal has the discretion to grant all or any part of lost income. This discretion leaves it open to the Tribunal to impose a limit on losses caused by the discriminatory practice.

Counsel for Mobil Oil put forth the position that:

• [57] ... Mobil's compensation and progression policies have not been held to be discriminatory in any manner. Rather, it was Mobil's treatment of Ms. Walsh with respect to her placement within the Mobil policies that has been determined to be discriminatory....

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:

• [149] The Tribunal finds that Ms. Walsh's physical problems which have resulted in chronic pain and the medications prescribed to deal with that pain have had a significant impact on her ability to work and her daily living.

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

• [172] [The plaintiff's expert] testified that Ms. Brown had more detailed information regarding: (1) the comparators, (2) progression through the salary grid, and (3) Ms. Walsh's medical information. In this regard, they were relying on different sets of information.
• [173] The Tribunal agrees with [the plaintiff's expert] that he and Ms. Brown were working from different sets of data. It also finds that the assumptions that instructed [the plaintiff's expert] in his report were inconsistent with the evidence on Mobil's guidelines regarding career progression and YOA determination. Therefore, the Tribunal prefers the April 26, 2010 report and methodology of Ms. Brown of Brown Economic Consulting Inc.

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

• [192] In commenting on the differences between the two reports, Ms. Brown stated that Brown Economic had more company specific information from Mobil and more information about other things that may impact Ms. Walsh's working career. Ms. Brown also stated that no backup tables were provided with the DT&A report. In spite of repeated attempts requesting their output tables, they were never received. In her report,Ms. Brown lists the missing information which impacted her ability to verify or refute the DT&A calculations.
• [194] The Tribunal notes that one of the significant documents utilized by DT&A was the Economica report. Mr. Eldridge, of Economica had testified that Ms. Brown hadm ore company specific and medical information than what was available to him. This is consistent with Ms. Brown's testimony on this point vis a vis the DT&A report.Therefore the Tribunal prefers the report of Ms. Brown based on the detail and quality of the information upon which she based her calculations. The Tribunal also prefers the methodology and range of factors considered by Ms. Brown in the production of her estimates. (emphasis added)

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:

• $10,000 for general (non-pecuniary) damages for the discrimination complaint (para. [211])
• $25,000 for general (non-pecuniary) damages for the retaliation complaint (para. [212])
• $472,766 for loss of wages and fringe benefits from Aug. 14, 1989 to Dec. 31, 2000 (para. [225])
• $139,154 for loss of pension benefits arising from loss of service and reduced salary from Aug. 14, 1989 to Dec. 31, 2000 (para. [228])
• $10,000 for treatment/counselling expenses (paras. [229], [230])

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:

• [213] At the hearing, Mr. Hope, counsel for Ms. Walsh, suggested that the Tribunal may wish to use the expertise of Ms. Brown to perform further calculations. The Tribunal's findings regarding loss of income, benefits, and pension do require certain calculations beyond the expertise of the Tribunal.
• [214] Consequently, both Mr. Hope and Mr. Steele, counsel for Mobil, were consulted and agreed that the Tribunal would contract with Ms. Brown to do the required calculations.
• [215] As a result, the Tribunal contracted Ms. Brown of Brown Economic Consulting Inc. Her task was to do certain required calculations based on the loss of income and benefit findings of the Tribunal, utilizing the methodology and salary information outlined in her report of April 26, 2010.
• [222] The Tribunal accepts that Brown Economic did not apply negative contingencies to Ms. Walsh's earnings from August 14, 1989 to December 31, 1998, "based on the assumption her with-incident labour force absences may have been a result of health issues, market conditions and/or the incident." The Tribunal finds that no negative contingencies should be applied to her earnings from August 14, 1989 to December 31, 2000 for the same reasons.
• [223] The Tribunal finds that a fringe benefit contingency should be applied to Ms.Walsh's earnings for employer sponsored group insurance and saving benefits over the period 1989 to 2000. The fringe benefit contingency should be consistent with the range outlined in Ms. Brown's April 26, 2010 report.
• [226] Ms. Brown was asked to calculate the loss of pension benefits in accordance with the loss of income findings of the Tribunal as outlined previously. The Tribunal also directed that any pension benefits should take into account the amount she received in 1995.
• [227] The Tribunal accepts the methodology and information relied upon to calculate such benefits as outlined in the Brown Economic report of April 30, 2010 on pension estimates and the April 26, 2010 report.

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