2012 ABQB 527, 2012 ABQB 527

Walsh v. Mobil Oil Canada (No. 4) 1001 14246 (Calgary) 2012-08-22 2012 ABQB 527 Alberta Queen's Bench CHRR Doc. 12-3072 Delorie Walsh Appellant v. Mobil Oil Canada, also known as ExxonMobil Canada Ltd. and Alberta Human Rights Commission Respondents Date of Decision: August 22, 2012 Before: Alberta Queen's Bench, Romaine J. Appeal from: (2010), 71 C.H.R.R. D/107, 2010 AHRC 9 and (2011), CHRR Doc. 11-3010, 2011 AHRC 3 Docket No.: 1001 14246 (Calgary) Appearances by: Delorie Walsh, on her own behalf Richard F. Steele and Rachel S.

West, Counsel for the Respondent Mobil Oil Canada Janice Ashcroft, Counsel for the Respondent Alberta Human Rights Commission APPEALS AND JUDICIAL REVIEW — appeal of damage award, interest award, decision on bias, remedy, and order to pay costs and interest — error of law in awarding costs, determining damages, interpreting evidence and not giving reasons for decision DAMAGES — damages assessed for sex discrimination — determining quantum by establishing duration of award and using reasonable foreseeability test — expenses caused by contravention of human rights legislation — COSTS — award of costs to complainant ADMINISTRATIVE TRIBUNALS — COURTS — standard of review of court over administrative tribunals — HUMAN RIGHTS TRIBUNALS — reasonable apprehension of bias

Summary: Delorie Walsh and Mobil Oil Canada both appealed two decisions of the Alberta Human Rights Tribunal on remedies, costs and interest, which followed on decisions which held that Mobil Oil Canada discriminated against its former employee, Delorie Walsh, because of her sex, and retaliated against her by terminating her employment. Ms.

Walsh filed two complaints, one in August 1991 alleging that she had been discriminated against because of her sex while employed as a land representative with Mobil Oil, and the second in August 1995 alleging that her employment had been terminated in retaliation for filing her human rights complaint and refusing to withdraw it. Ms. Walsh began her employment in the oil industry in 1984 as a junior map clerk with Canadian Superior Oil Ltd.

She had a B.Sc. in agriculture and her goal was to become a land representative in the field, despite the fact that the tradition in the industry was that men handled the surface rights work and women did the clerical jobs. In 1986, Canadian Superior merged with Mobil Oil Canada. Ms. Walsh received her Permanent Land Agent Licence in 1988. She began to work as a land representative, and received consistently positive performance reviews. Ms. Walsh, however, was aware that she was being paid less, and being treated differently than the men who performed the same job. In 1991, she filed a human rights complaint.

Mobil took the position that her complaint had no merit, and sought only to have her withdraw it. She refused. In 1994, she was given a new supervisor, received a critical performance appraisal and was placed under strict monitoring. In February 1995, her employment was terminated for cause. In August 1995, she filed her second complaint alleging that

the dismissal was retaliatory. After dismissal of the complaints by the Alberta Human Rights Panel, the Court of Queen's Bench found that Ms. Walsh'scomplaints were substantiated, and remitted the matter back to the Panel for a decision on remedy. The Human Rights Panel (now referred to as the Tribunal) concluded that Ms. Walsh was owed compensation for wageslost due to discrimination and retaliation in the amount of $472,766. This amount included compensation for the differencebetween what Ms.

Walsh was paid between 1989 and 1995 (when she was fired) and what she should have been paid hadthere been no discrimination based on sex. It also includes compensation for lost wages between 1995 and 2000, a periodduring which, the Tribunal concluded, Ms. Walsh would have continued to work for Mobil had she not been retaliatedagainst. The Tribunal also awarded Ms. Walsh $139,154 as compensation for lost pension benefits, $10,000 in general damages forthe sex discrimination, $25,000 in general damages for the retaliation and $10,000 for counseling, which Ms.

Walsh neededbecause of the trauma and depression caused by Mobil Oil's actions. Costs were dealt with separately, and the Tribunalawarded Ms. Walsh party-and-party costs, the costs of her expert witnesses and pre-judgment interest on her lost incomefrom 1991 to 2010, as well as interest on the general damage awards. Both Ms. Walsh and Mobil Oil challenged the Tribunal's decisions on remedies. The Court, applying a standard of correctness, dismissed both appeals, except on the issue of Ms. Walsh's personal costs. The Court did not accept Ms.

Walsh's claim that the Tribunal breached its duty to act fairly by failing to issue a cleansingself-instruction stating that she would rely only on fact, logic and the law, or by declining to consider documents from"without prejudice" settlement discussions. The Court did not agree with Ms. Walsh that the Tribunal had erred in failing to engage in a free-standing analysis of jobdescriptions and industry-wide comparisons at the remedies stage of the hearing. The Tribunal was entitled to fashion aremedy based on findings made at the liability stage. The Court rejected Ms.

Walsh's argument that the Tribunal, by failing to extend Mobil's liability beyond 2000, had failed toapply the proper test for causation and proper principles of foreseeability. The Tribunal's finding that the termination was asignificant or material cause of Ms. Walsh's unemployment until the end of 2000, but not after, was a reasonable and correctapplication of a "but for" causation analysis. The Court referred the matter of Ms. Walsh's personal expenses back to the Tribunal because the Tribunal failed to provideadequate reasons for its refusal to make any award for personal expenses.

Regarding Mobil Oil's appeal, the Court did not agree that the Tribunal failed to properly consider claims made by Ms. Walshin workers' compensation litigation. This is not a case of issue estoppel, or abuse of process, or exclusive jurisdiction. TheCourt also rejected Mobil Oil's claim that the Tribunal failed to follow the evidence when awarding compensation to the endof 2000. The Court found that the Tribunal did not err in its placement of Ms. Walsh within the Mobil salary grid.

Finally, theCourt found that there was no basis for interfering with the Tribunal's award for general damages which was neitherexcessive nor inadequate. The appeals were rejected. The issue of personal costs was referred back to the Tribunal. CASES CITED Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Assn., [2011] 3 S.C.R. 654, 2011 SCC 61: 62 B.C.N.U. v. British Columbia's Women's Hospital, [1995] B.C.J. No. 2383 (QL) (S.C.): 55 Baker v. Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817: 57 Boissoin v.

Lund (No. 1) (2009), CHRR Doc. 09-2987, 2009 ABQB 592: 63 C.A.I.M.A.W., Local 14 v. Paccar of Canada Ltd., (SCC), [1989] 2 S.C.R. 983: 40 Canada (Attorney General) v. Morgan, (FCA), [1992] 2 F.C. 401, 21 C.H.R.R. D/87, [1991] F.C.J. No.1105 (QL) (C.A.): 73, 97 Canada (Human Rights Comm.) v. Taylor, (SCC), [1990] 3 S.C.R. 892, 13 C.H.R.R. D/435: 61 Canada (Human Rights Comm.) and Mowat v. Canada (Attorney General), 2011 SCC 53 , [2011] 3 S.C.R. 471, 73C.H.R.R. D/30, 2011 SCC 53: 42, 48 Canada (Treasury Board) v. Robichaud, (SCC), [1987] 2 S.C.R. 84, 8 C.H.R.R. D/4326: 74 Chopra v.

Canada (Attorney General) (No. 2) (2007), 61 C.H.R.R. D/248, [2007] F.C.J. No. 1134 (QL), 2007 FCA 268: 29,76, 96, 101 Clements v. Clements, [2012] 2 S.C.R. 181, 2012 SCC 32: 92, 100, 118 Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, : 57

Council of Canadians with Disabilities v. Via Rail Canada Inc., 2007 SCC 15 , [2007] 1 S.C.R. 650, 59 C.H.R.R.D/276, 2007 SCC 15: 37 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9: 32, 46 Farm Meats Canada Ltd. v. Berry (2000), 39 C.H.R.R. D/317, 2000 ABQB 682: 74 Freyberg v. Fletcher Challenge Oil and Gas Inc., 2005 ABCA 46: 112 Gale v. Canada (Treasury Board), 2004 FCA 13: 54 Hodgkinson v. Simms, (SCC), [1994] 3 S.C.R. 377, 117 D.L.R. (4th) 161, 171 N.R. 245, [1994] 9 W.W.R.609, 97 B.C.L.R. (2d) 1, 22 C.C.L.T. (2d) 1, 57 C.P.R. (3d) 1, 16 B.L.R. (2d) 1, 49 B.C.A.C. 1, 80 W.A.C. 1: 98 Isbinosun v.

Law Society of Upper Canada (Ont. Div.Ct.): 37 Leon's Furniture Ltd. v. Alberta (Information and Privacy Commissioner), 2011 ABCA 94: 40 Murray v. Canada (Attorney General), 2011 FC 542: 65 Nagulesan v. Canada (Minister of Citizenship and Immigration), 2004 FC 1382: 66 R. v. S. (R.D.), (SCC), [1997] 3 S.C.R. 484: 58 Resurfice Corp. v. Hanke, [2007] 1 S.C.R. 333, 2007 SCC 7: 90, 100 S.E.P.Q.A. v. Canada (Human Rights Comm.), (SCC), [1989] 2 S.C.R. 879, 11 C.H.R.R. D/1: 122 Université du Québec à Trois-Rivières v. Larocque, (SCC), [1993] 1 S.C.R. 471: 65 University of Alberta v.

Alberta (Human Rights Comm.), (SCC), [1992] 2 S.C.R. 1103, 17 C.H.R.R. D/87: 42 Walsh v. Mobil Oil Canada (No. 1) (2002), (AB HRC), 42 C.H.R.R. D/247 (A.H.R.P.): 11 Walsh v. Mobil Oil Canada (No. 1) (2004), 50 C.H.R.R. D/358, 2004 ABQB 675: 11 Walsh v. Mobil Oil Canada (No. 2) (2005), CHRR Doc. 05-781, 2005 AHRC 13: 13 Walsh v. Mobil Oil Canada (No. 2) (2007), 60 C.H.R.R. D/460, 2007 ABQB 305: 16, 22, 59, 71 Walsh v. Mobil Oil Canada (No. 3) (2007), CHRR Doc. 07-677, 2007 ABQB 599: 16 Walsh v. Mobil Oil Canada (No. 1) (2008), 64 C.H.R.R. D/84, 2008 ABCA 268: 17, 34, 59, 68, 108 Walsh v.

Mobil Oil Canada (No. 3) (2010), 71 C.H.R.R. D/107, 2010 AHRC 9: 20, 59, 80, 93, 111 Walsh v. Mobil Oil Canada (No. 4) (2011), CHRR Doc. 11-3010, 2011 AHRC 3: 20, 27, 67, 107 LEGISLATION CITED Alberta Alberta Human Rights Act, R.S.A. 2000, c. A-25.5 s. 6: 5 s. 6(1): 77 s. 7: 5 s. 32: 31 s. 32(1)(b): 22 s. 32(2): 22 s. 32(5): 124 s. 34: 22 s. 37(4): 31 Rules of Court (Alta.): 27 Workers' Compensation Act, R.S.A. 2000, c. W-15

s. 17(1): 30 s. 21(2): 30 AUTHORITIES CITED Mullan, David J., "The McLachlin Court and the Public Law Standard of Review: A Major Irritant Soothed or a SignificantOngoing Problem?" in Adam M. Dodek & David A. Wright, eds., Public Law at the McLachlin Court: The First Decade(Toronto: Irwin Law, 2011): 52 INTRODUCTION [1] In previous court proceedings, Mobil was found to have discriminated against its former employee, Delorie Walsh and tohave retaliated against her for filing a human rights complaint by terminating her employment.

This is a judicial review ofsubsequent decisions made by a human rights tribunal relating to remedies, costs and interest. Both Ms. Walsh and Mobilraise various grounds of appeal. FACTS [2] This matter commenced over 20 years ago and has been the subject of numerous administrative and Court hearings.The following

summary of the facts and the record of this case is largely drawn from these previous decisions and from thesubmissions of the parties. [3] Delorie Walsh was hired by Canadian Superior Oil Ltd. as a junior map clerk in 1984. When Canadian Superior Oil Ltd.merged with Mobil Canada (now know as ExxonMobil Canada) ("Mobil"), Ms. Walsh continued her employment with Mobil. [4] Ms. Walsh had an interest in becoming a land representative, but faced a number of obstacles because of her gender.Eventually, she became a "landman" and received several promotions throughout her tenure with Mobil. Unfortunately, whileMs.

Walsh's responsibilities increased significantly, her pay scale and designations did not keep pace with her actual duties.Ms. Walsh filed two complaints against Mobil with the Alberta Human Rights Commission under the Alberta Human Rights,Citizenship and Multiculturalism Act, now the Alberta Human Rights Act, R.S.A. 2000 c. A-25.5 (the "Act"). [5] Ms.

Walsh's first complaint, filed on August 14, 1991, alleged that Mobil had discriminated against her in its employmentpractices on the basis of her gender and that Mobil failed to provide her with equal pay contrary to ss. 6 and 7 of the Act. [6] It was not until September 9, 1994, that the Commission investigated this complaint, and on February 16, 1995, itformally dismissed it. On March 18, 1995, Ms. Walsh requested a review of this dismissal. [7] In the meantime, on January 7, 1994, Ms. Walsh was involved in a work-related motor vehicle accident. She sufferedlasting injuries.

The Worker's Compensation Board ("WCB") took over the matter and eventually pursued a civil remedyagainst the other driver in the accident on Ms. Walsh's behalf. Ms. Walsh's counsel initially took the position in the litigationthat the accident had affected her earnings. The total claim for damages in the civil action was $755,485, which includedboth past and future loss of earnings. Ms. Walsh confirmed that the accident was a cause of her lost wages in threeexaminations under oath during the discovery process, on October 6, 1997, September 28, 1998, and March 17, 2000.However, when Ms.

Walsh's claim was settled by the WCB through mediation in 2004, none of the final $145,000 settlementamount was attributed to lost wages. Ms. Walsh says that this head of damages was dropped during the settlementnegotiations. [8] On February 21, 1995, on the same day that Ms. Walsh learned that her first complaint to the Commission had beendismissed, her employment with Mobil was terminated. On August 15, 1995, Ms.

Walsh filed a second complaint with theCommission alleging that Mobil had retaliated against her for filing the first complaint by terminating her employment. [9] The Commission investigated and later dismissed Ms. Walsh's second complaint on June 13, 1996. Ms. Walshimmediately requested a review of this dismissal. [10] On September 21, 1998, the Chief Commissioner of the Human Rights Commission overturned both of the decisionsto dismiss Ms. Walsh's complaints and informed Ms. Walsh that a panel would be established to hear them. The hearingwas postponed, however, as Ms.

Walsh was under medical care due to her injuries sustained in the accident. [11] In 2000, the Commission appointed a panel to hear the complaints. Mobil brought a preliminary application todetermine whether the panel had lost its jurisdiction to hear the complaints due to excessive delay. On January 14, 2002,the panel dismissed Ms. Walsh's first complaint from 1991 due to the delay (Walsh v. Mobil Oil Canada (No. 1) (2002), (AB HRC), 42 C.H.R.R. D/247) but allowed the second complaint to continue. Ms. Walsh appealed thedismissal of her first complaint to the Alberta Court of Queen's Bench.

A decision was rendered on September 22, 2004:Walsh v. Mobil Oil Canada (No. 1), 2004 ABQB 675 [reported 50 C.H.R.R. D/358]. The Court found that, while there wasdelay, it did not prejudice Mobil and therefore referred the case back to the Commission to be heard by a different panel. [12] The Commission appointed Beth Bryant to act as panel to hear both complaints. Ms.

Bryant directed that thecomplaints would be heard together and that matters relating to the merits of the complaint would be dealt with prior to andseparately from issues pertaining to remedy and costs. [13] The hearing on the merits of both complaints took place on September 28 and 30 and October 21, 2005. Ms. Bryant'sdecision on the merits was issued on December 16, 2005: Walsh v. Mobil Oil Canada (No. 2), 2005 AHRC 13 [ CHRR Doc.05-781].

[ 14 ] With respect to the first complaint, Ms. Bryant found that between August 1990 and August 1991, Mobil discriminated against Ms. Walsh on the basis of her gender, contrary to the equal pay and terms and conditions of employment provisions of the Act . [ 15 ] With respect to the second complaint, Ms. Bryant found that Mobil did not retaliate against Ms. Walsh for the filing of the first human rights complaint. She found no connection, or no reasonably perceivable connection, between the first complaint and her subsequent termination. [ 16 ] Ms. Walsh appealed Ms.

Bryant's decision to the Alberta Court of Queen's Bench. A decision was rendered on May 11, 2007: Walsh v. Mobil Oil Canada (No. 2) , 2007 ABQB 305 [reported 60 C.H.R.R. D/460] (" Walsh QB 2007"). Macleod, J. overturned Ms. Bryant's conclusions regarding retaliation, awarded solicitor-client costs [ CHRR Doc. 07-677, 2007 ABQB 599 ], and provided directions for the assessment of Ms. Walsh's damages. [ 17 ] Mobil appealed this decision to the Alberta Court of Appeal. A decision was rendered on August 5, 2008: Walsh v. Mobil Oil Canada, 2008 ABCA 268 [reported 64 C.H.R.R.

D/84] (" Walsh CA 2008"). [ 18 ] The Court of Appeal dismissed Mobil's appeal with regard to the issues of gender-based discrimination and retaliation, thus affirming Ms. Walsh's substantive complaints. However, the Court of Appeal set aside the trial justice's direction with respect to assessment of damages and awarded party-and-party costs instead of solicitor-client costs. [ 19 ] The matter was then remitted to the Commission to proceed with a remedy hearing. Once again, Ms. Bryant was appointed (this time as a "tribunal" rather than a "panel" in accordance with certain changes to the Act ). [ 20 ] Ms.

Bryant first heard and decided the question of Ms. Walsh's substantive remedy. This decision was rendered on September 2, 2010: Walsh v. Mobil Oil Canada (No. 3), 2010 AHRC 9 [reported 71 C.H.R.R. D/107] (" Walsh remedy decision"). Ms. Bryant subsequently heard arguments regarding costs and interest and rendered a decision on these matters on February 8, 2011: Walsh v. Mobil Oil Canada (No. 4), 2011 AHRC 3 [ CHRR Doc. 11-3010] (" Walsh costs decision"). [ 21 ] In the Walsh remedy decision, Ms. Bryant awarded $656,920 in damages to Ms. Walsh. The award consists of $10,000 in general damages for Ms.

Walsh's first complaint and $25,000 for her second complaint; $472,766 for her loss of income between the date of her termination and December 31, 2000; $139,154 for her loss of pension benefits in the same period; and $10,000 for future treatment and counselling. [ 22 ] Ms. Bryant's authority to award remedies for a breach of the Act stems from ss. 32(1) (b), 32(2) and 34 of the Act. Ms. Bryant noted that awards for general damages for human rights claims in Alberta generally fall between $5,000 and $10,000, making the total award of $35,000 higher than usual.

However, she found that there were no limits set out in the Act, such that she was not constrained by statute or precedent. She went on to explain her decision to give this award by reference to the Walsh QB 2007 decision, and specifically the Court's findings that Mobil had both discriminated and subsequently retaliated against Ms. Walsh. Ms. Bryant made particular mention of Macleod J.'s use of such terms as "insensitive" and "cruel" in describing the retaliatory actions of Ms.

Walsh's supervisors in support of her decision to grant an exceptional award on the second complaint. [ 23 ] In order to determine whether and to what extent Ms. Walsh had suffered a loss of income as a result of the discrimination and retaliation, Ms. Bryant considered evidence from medical experts. Ms. Bryant found that Ms. Walsh's job loss, her motor vehicle accident injuries and subsequent opioid addiction each contributed to her depression throughout the years since this matter first arose. Ms. Bryant also found that Ms.

Walsh's physical injuries from the accident had a significant impact on her ability to work, but that the earlier accident-related litigation did not impact Ms. Walsh's access to a human rights remedy, stating that each forum would address Ms. Walsh's various claims differently depending on that forum's distinct mandate. [ 24 ] Ms. Bryant found that, without the discrimination, retaliation and subsequent litigation process, Ms. Walsh would have been better able to deal with her physical issues between 1995 and 2000. During this time, Ms.

Walsh did what she could to address her loss of income and her health, taking on work when possible until 2000, when she developed a dependency on pain medication. Ms. Bryant therefore found that Ms. Walsh's losses flowed from Mobil's acts of discrimination and retaliation. However, Mobil's liability for the losses was deemed to end after 2000. Ms. Bryant relied on the opinion of Mobil's medical expert, Dr. Lloyd Maybaum, who testified that Ms. Walsh's addiction would have significantly contributed to her depressed mood and affected her ability to work from that point onward. Ms.

Bryant found no causal link between Ms. Walsh's addiction and the discrimination and retaliation, and therefore determined that Ms. Walsh's inability to work after 2000 was not attributable to Mobil: see Walsh remedy decision at § 201–06. [ 25 ] Ms. Bryant found that Mobil's promotion policies and salary scale were not themselves discriminatory and therefore relied on them to determine the income that Ms. Walsh would have earned from the date of her termination to December 31, 2000. With consent of counsel, Ms.

Bryant independently contacted Mobil's economic expert, Brown Economic Consulting Inc., to calculate Ms. Walsh's loss of income and pension benefits according to her findings of fact. That calculation, less the amount of income that Ms. Walsh had earned during the relevant period, served as the basis for Ms. Bryant's awards of $472,766 for loss of income and $139,154 for loss of pension benefits. [ 26 ] Ms. Bryant determined that $10,000 for future treatment and counselling to deal with the closure of the case and its impacts on Ms. Walsh was an appropriate award. She based this decision on Dr.

Maybaum's assessment of Ms. Walsh's psychological state and needs. [ 27 ] On February 28, 2011, in the Walsh costs decision, Ms. Bryant awarded party-and-party costs to Ms. Walsh under the Alberta Rules of Court

Schedule C, Column 4. As Ms. Walsh was largely successful on the merits of her complaints, she was permitted to recover the costs of her expert witnesses. She was awarded pre-judgment interest on her lost income from

August 14, 1991, to September 2, 2010, on the grounds that she was precluded from using the income throughout thatperiod of time. She was also awarded interest on her general damage awards at the statutory rate of 4 percent from thedate of her termination until September 2, 2010. [28] Ms. Walsh has appealed Ms. Bryant's decision regarding both the remedy and the interests and costs to be awarded toher. Mobil has cross-appealed on the remedy decision. Mobil, Ms. Walsh and the Commission have consented toconsolidate both the remedy appeals and costs appeal into the current application. ISSUES [29] Ms. Walsh's grounds of appeal are as follows: (

a) The Tribunal breached its duty to act fairly (

i) in having the same individual who initially dismissed Ms. Walsh's complaint conduct the hearings, giving rise to theapprehension of bias; and (ii) in declining to consider documents from "without prejudice" settlement discussions in the Walsh costs decision. (

b) The Tribunal erred in law in (

i) misapplying the principles for determining loss and failing to provide a remedy that would make the victim ofdiscrimination "whole"; (ii) failing to apply the proper test for causation; (iii) misinterpreting the right to equal pay for same or similar work; (iv) misapplying the principles of foreseeability as set out in Chopra v. Canada (Attorney General), 2007 FCA 268, [2007] F.C.J. No. 1134 (QL) [ 61 C.H.R.R. D/248] (C.A.); and (

v) miscellaneous other errors. (

c) The Tribunal erred in failing to award Ms. Walsh all of her costs and expenses. (

d) The Tribunal erred in making contradictory findings in the merits portion and the remedies portion of the hearing. Ms. Walsh also sprinkled additional grounds of appeal throughout her oral and written submissions and in response toMobil's grounds of appeal. Some of these additional grounds are dealt with in the analysis of Mobil's grounds of appeal. [30] Mobil submits that, in awarding damages from the date Ms. Walsh's employment was terminated to December 31,2000, the Tribunal erred in: (

i) failing to properly consider Ms. Walsh's election to attribute her income losses after she was terminated to the motorvehicle accident, thus allowing an abuse of process; (ii) failing to properly apply the law, interpret the evidence and follow her own findings of fact regarding the awards fordamages for loss of income, loss of fringe benefits and loss of pension benefits; (iii) setting the quantum of damages awarded in the time period between the first complaint and the date of termination; (iv) misinterpreting and misapplying the law regarding general damages in the human rights context, thus awardingexcessive, unreasonable and unprecedented general damages; and (

v) interpreting the Workers' Compensation Act [R.S.A. 2000, c. W-15] ss. 17(1) and 21(2) in an incorrect andunreasonable manner, and contrary to the intention of the Alberta legislature. STANDARD OF REVIEW [31] The Act confers very broad powers on reviewing courts in s. 37(4). The Court may confirm, reverse or vary an order ofthe human rights tribunal and make any order that the tribunal may make under s. 32 of the Act, or may remit the matterback to the tribunal with directions. [32] In Dunsmuir v.

New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, the Supreme Court of Canada reviewed existing lawrelating to the standard of review for administrative tribunal decisions, and determined that it was time to clarify andconsolidate that law. First, the Court decided that there should only be two applicable standards: the more stringentstandard of correctness and the more deferential standard of reasonableness. Second, the Court streamlined the approachto be taken in determining what standard should apply in any given situation, stating at § 62: In

summary, the process of judicial review involves two steps. First, courts ascertain whether the jurisprudence has alreadydetermined in a satisfactory manner the degree of deference to be accorded with regard to a particular category of question.Second, where the first inquiry proves unfruitful, courts must proceed to an analysis of the factors making it possible toidentify the proper standard of review. [33] The first step recognizes the extensive body of law already in place dealing with standards of review. As was noted at §

57: An exhaustive review is not required in every case to determine the proper standard of review. Here again, existingjurisprudence may be helpful in identifying some of the questions that generally fall to be determined according to thecorrectness standard. . . This simply means that the analysis required is already deemed to have been performed and neednot be repeated. [34] In this particular case, existing jurisprudence is relevant. The Alberta Court of Appeal considered the standard ofreview in light of Dunsmuir with respect to a review of the liability decision in this very matter in Walsh CA 2008.

Ritter J.A.,writing for the majority, stated at § 55 of that decision: . . . in light of Alberta's human rights legislation, the existing case law answers the question of standard of review, at least ina general sense. It indicates that human rights tribunals, such as the tribunal in this case, may be afforded some deferencewith respect to findings of fact and credibility, given their role in hearing viva voce evidence.

However, reviewing courts willbe unconstrained in their assessment of the evidence as it relates to the applicable law, particularly where an error is foundin respect of the tribunal's articulation of the law. [35] As was the case in Walsh CA 2008, there is little conflict in this case respecting the facts and no material issues ofcredibility.

As in that appeal, the dispute is about what the outcome ought to be when the law is applied to the facts and whatinferences should be drawn from proven facts. [36] Thus, in the absence of further authority, the appropriate standard of review with respect to the issues in this judicialreview would be that of correctness, with "some curial deference accorded to the panel on findings of fact". [37] Mobil and Ms. Walsh agree with this standard of review generally, although Ms.

Walsh suggests that with respect toissues of procedural fairness, there is no standard of review, but merely a question of whether or not she was accordedprocedural fairness: Isbinosun v. Law Society of Upper Canada (Ont. Div.Ct.). Mobil submits that theCourt should grant some deference to the decisions of the Panel in controlling its own process: Council of Canadians withDisabilities v. Via Rail Canada Inc., 2007 SCC 15, [2007] 1 S.C.R. 650 [ 59 C.H.R.R.

D/276] at § 231. [38] The Tribunal, however, submits that since Walsh CA 2008, there have been Supreme Court of Canada decisions thatprovide further nuanced direction with respect to Dunsmuir and are relevant in determining both the standard of review andwhat is meant by "reasonableness" with respect to issues in this case. [39] Ms. Walsh objected to any input from the Human Rights Commission on this issue. I allowed such submissions despiteher objections. [40] The Court of Appeal in Leon's Furniture Ltd. v.

Alberta (Information and Privacy Commissioner), 2011 ABCA 94 at § 24recognized that recent case law indicates that some flexibility is required when defining the proper role of tribunals in judicialreview decisions, citing the Supreme Court's decision in CAIMAW v. Paccar of Canada Ltd., (SCC), [1989] 2S.C.R. 983 at 1016. In Paccar, the Court recognized that a tribunal had standing to make arguments with respect to relevantauthorities on the standard of review and whether a decision was reasonable, that this did not exceed the limited roleallowed to administrative tribunals in judicial reviews.

The Court in Leon's Furniture agreed at § 28 that, while theinvolvement of a tribunal should always be measured, there should be no absolute prohibition on it providing submissions tothe Court, commenting that: "(w)hether the tribunal will be allowed to participate, and the extent to which it should participateinvolves the balancing of a number of considerations". [41] In this case, while two adverse appellants were present and participating in the judicial review, Ms. Walsh was self-represented.

A previous Court of Appeal decision that set a standard of review appeared at first blush to determine thematter, but the law in this area is in a period of flux and some uncertainty, and the existence of subsequent Supreme Courtauthority challenged the precedential value of Walsh CA 2008 on the issue of standard of review. The submissions of theTribunal on that issue appeared to be, and were, very helpful to a complicated issue of standard of review.

The argumentsmade by the Tribunal did not exceed what was appropriate, nor did it unduly enter the forum on either side, other than onthis limited issue. [42] The Court of Appeal in Walsh CA 2008 relied heavily on the Supreme Court's decision in Dickason v. University ofAlberta, (SCC), [1992] 2 S.C.R. 1103 [ 17 C.H.R.R. D/87] in its conclusions on standard of review.Subsequent to the Dickason decision, the Supreme Court in Canada (Human Rights Comm.) v. Canada (Attorney General),2011 SCC 53, [2011] 3 S.C.R. 471 [ 73 C.H.R.R.

D/30] at § 21 ("Mowat") questioned whether the correctness standard aspreviously applied in Dickason and other cases should continue to apply to administrative tribunals (specifically humanrights tribunals) even with respect to many questions of law; whether all such questions "should be swept under the standardof correctness". [43] The Supreme Court in Mowat confirmed, citing Dunsmuir, that the standard of correctness will continue to apply toconstitutional questions, questions of law that are of central importance to the legal system as a whole and that are outsidethe adjudicator's expertise, as well as questions involving the jurisdictional lines between two or more competing specializedtribunals and true questions of jurisdiction or vires. [44] However, the Court noted at § 23 and 24 that not all questions of general law entrusted to a tribunal rise to the level ofissues of central importance to the legal system or fall outside the adjudicator's specialized area of expertise.

It cautionedthat distinctions ought to be drawn [at § 24]: . . . In substance, if the issue relates to the

interpretation and application of its own statute, is within its expertise and doesnot raise issues of general legal importance, the standard of reasonableness will generally apply and the Tribunal will be

entitled to deference. [ 45 ] At issue in Mowat was the question of whether a human rights tribunal operating under the federal human rights statute had the power to order the payment of legal costs. The Court found that an inquiry into what costs were incurred by a complainant as a result of a discriminatory practice is "inextricably intertwined with the Tribunal's mandate and expertise to make factual findings relating to discrimination", and noted at § 25: . . .

As an administrative body that makes such factual findings on a routine basis, the Tribunal is well positioned to consider questions relating to appropriate compensation under s. 53(2). In addition, a decision as to whether a particular tribunal will grant a particular type of compensation – in this case, legal costs – can hardly be said to be a question of central importance for the Canadian legal system and outside the specialized expertise of the adjudicator. Compensation is frequently awarded in various circumstances and under many schemes.

It cannot be said that a decision on whether to grant legal costs as an element of that compensation and about their amount would subvert the legal system, even if a reviewing court found it to be in error. [ 46 ] These comments drive me to conclude that issues in this judicial review relating to the determination of income loss, being a particular kind of compensation that is within the statutory authority of the Tribunal to grant, do not fall within the more limited categories of issues that require a standard of review of correctness as set out in Dunsmuir .

I therefore apply a standard of review of reasonableness to these grounds of appeal. [ 47 ] Clearly, the Mowat decision is authority for the application of a standard of review of reasonableness with respect to a tribunal's costs decision, and I have applied that standard of review herein. [ 48 ] Mowat also provides guidance with respect to the meaning of the standard of review of "reasonableness" in the judicial review context.

Quoting Dunsmuir at § 28, the Court defines reasonableness as: . . . a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions.

A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process.

But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [ 49 ] The Court also notes at §30 that deference in the context of judicial review can shield tribunals from "excessive judicial intervention" even on questions of law as long as they fall within the tribunal's core function and expertise, and would extend "to protect a range of reasonable outcomes when the decision maker is interpreting its home statute". [ 50 ] However, correctness remains the standard of review for issues of procedural fairness: Dunsmuir at § 60. [ 51 ] The issues of election and estoppel and whether the workers' compensation regime has exclusive jurisdiction over the claim for lost wages in this case are issues of law that would not often fall to a human rights tribunal to determine and cannot truly be said to be within its core function or a question of interpreting its home statute.

While the line is hard to draw, I have determined that these issues attract the correctness standard. [ 52 ] The Tribunal submits that I should not parse the standard of review in accordance with the particular issues under review, but should review the decisions on the overall basis of reasonableness, citing Professor David Mullan in "The McLachlin Court and the Public Law Standard of Review: A Major Irritant Soothed or a Significant Ongoing Problem?" in Dodek and Wright, eds., Public Law at the McLachlin Court: The First Decade (2011), 79 at p. 110. [ 53 ] While this is an interesting issue, I note that Mowat was a single issue appeal.

I also note that, while I have applied different standards of review to different issues in this judicial review, it would have made no difference to my conclusions had I reviewed all issues under appeal under the standard of review of correctness. This is not an appropriate case to comment on the question of when decisions should be segmented for review purposes or reviewed on the basis of overall conclusion. ANALYSIS Ms. Walsh's Appeal A. Did the Tribunal breach its duty to act fairly i. in having Ms.

Bryant conduct the hearings, giving rise to the apprehension of bias? [ 54 ] There is no presumption of bias when an issue is remitted to the same decision-maker. There is instead a presumption of integrity and impartiality on the part of the decision-maker, absent any evidence to the contrary: Gale v. Canada (Treasury Board) , 2004 FCA 13 . [ 55 ] It is generally permissible, even desirable, to remit a matter to the same decision-maker unless the issue rests on a previous finding of credibility: British Columbia Nurses' Union v. British Columbia's Women's Hospital, [1995] B.C.J. No. 2383 (QL) (S.C.) .

The Court noted at § 17 of that case that "if it is likely that a fair result can be reached by remitting the matter to the original hearing tribunal, then usually that is the desirable course".

[56] In this particular matter, the basic facts are not in dispute and none of the parties have raised any issues with respect toMs. Bryant's findings of credibility. [57] An apprehension of bias must be a reasonable one, held by reasonable and informed people applying themselves tothe question. The test is: what would an informed person, viewing the matter realistically and practically – and having thought the matter through –conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously,would not decide fairly? Baker v.

Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817 at § 46 citing deGrandpré J., writing in dissent, in Committee for Justice and Liberty v. National Energy Board, , [1978] 1S.C.R. 369 at 394. [58] The threshold to establish a reasonable apprehension of bias is high and the party alleging bias bears the onus ofproving a reasonable apprehension: R. v. S. (R.D.), (SCC), [1997] 3 S.C.R. 484 at § 114. [59] Ms. Bryant did not dispute or deny any of the conclusions reached by the Court of Queen's Bench or the Court ofAppeal in Walsh QB 2007 and Walsh CA 2008.

In fact, she referenced the Court's conclusions in support of her award forgeneral damages: see Walsh remedy decision at § 212. [60] It is noteworthy that Ms. Walsh raises the issue of bias for the first time in this judicial review, and did not object to Ms.Bryant as the Tribunal at the time of hearing. [61] The party alleging reasonable apprehension of bias should raise it at the earliest practicable opportunity with thedecision-maker. The Supreme Court in Canada (Human Rights Comm.) v. Taylor, (SCC), [1990] 3 S.C.R.892 at § 173 [ 13 C.H.R.R.

D/435 at § 172] stated as follows: . . . the appellants in this case raised the issue of bias several years after the initial hearing. By not raising the issue at theoutset and by proceeding with the Tribunal hearings and contempt hearings without raising the issue, the appellants must bedeemed to have waived any right to raise an issue of bias now. [62] Ms. Walsh was represented by counsel at the remedy hearing. As noted in Alberta (Information and PrivacyCommissioner) v.

Alberta Teachers' Association, 2011 SCC 61 at § 54, parties should not be able to "gut the deferenceowed to a tribunal by failing to raise the issue before the tribunal and thereby mislead the tribunal on the necessity ofproviding reasons". Given that this is an issue of procedural fairness, I have considered it on its merits, however, and I findthat there is nothing in Ms. Bryant's conduct or the nature of the decisions that would indicate that she was biased or closedminded in conducting the hearings. [63] Under the heading of bias, Ms. Walsh raises Ms.

Bryant's failure to formally instruct herself to decide the hearing basedsolely upon fact, logic and the law. Ms. Walsh cites Lund v. Boissoin (No. 1), 2009 ABQB 592 [ CHRR Doc. 09-2987] insupport of this submission. [64] Lund also arose out of a complaint to the Human Rights Commission. In considering the complaint, the Tribunal madenumerous statements that were prejudicial to the appellant or suggested that the issue has been pre-determined in favour ofthe claimant.

The Court found that in light of these statements, the decision-maker should have issued a cleansing self-instruction to show that she would rely only on fact, logic and the law in making her decision. The Court considered thefailure to issue such an instruction to be a troubling aspect of the Tribunal's decision, but only highlighted it for the purposeof assisting future panels. It was not determinative of the final outcome in that case. No such prejudicial statements weremade by Ms.

Bryant in this case and any failure to formally instruct herself raises no concerns in the circumstances. ii. in declining to consider documents from "without prejudice" settlement discussions in the Walsh costs decision? [65] The right to be heard (audi alterum partum) generally includes the right to submit relevant evidence before a decision-maker. "If a decision-maker refuses to consider possibly relevant evidence in circumstances where the party has a right topresent evidence, this automatically amounts to a breach of procedural fairness": Murray v.

Canada (Attorney General),2011 FC 542 at § 22; see also Université du Québec à Trois-Rivières v. Larocque, (SCC), [1993] 1 S.C.R.471. [66] A decision made without full consideration of the relevant evidence may be quashed and sent back to the decision-maker for reconsideration with regard to all of the evidence: Murray at § 26. However, this is not an automatic outcome.Where the breach has no material effect on the outcome of the decision, it will not justify the overruling of the decision(Nagulesan v.

Canada (Minister of Citizenship and Immigration), 2004 FC 1382 at § 17): A breach of procedural fairness can only be overlooked if there is no doubt that it had no material effect on the decision. [67] Although tribunals can decline to hear "without prejudice" settlement discussions, the impugned evidence does notappear to contain any such settlement discussions. It is primarily a narrative of Ms. Walsh's experience at Mobil, includingreferences to meetings with a supervisor in which he threatened to "be in her face" in his performance evaluations. Thus, itis difficult to conclude that Ms.

Bryant could rely on the fact that Mobil referred to the evidence as being "without prejudice"in order to justify her decision not to consider it: § 10–12 of Walsh costs decision. However, Ms. Bryant appears to havereferred the decision of admissibility of this evidence to the Court of Queen's Bench as an appropriate forum given that theremedy decision had already been appealed when she was hearing the costs and interest issues. She does not appear tohave directly decided whether or not the evidence should be rejected on the basis that the discussions were "without

prejudice". [68] Nevertheless, the exclusion of this evidence from the costs and interests hearing likely did not have any material effecton the outcome of that decision. The Court of Appeal, with knowledge of the impugned evidence, previously determined thatMs. Walsh was entitled to party-and-party costs, not solicitor-client costs: Walsh CA 2008 at § 113. Furthermore, theevidence does not reference any offers or rejections of settlement that could justify an award of double costs. [69] The evidence Ms.

Walsh sought to have admitted that was said to have been subject to "without prejudice" protectionin these proceedings is not, properly, the continuing subject of privilege with regard to costs if it is relevant to the issue ofcosts. What makes evidence relevant in this instance is if it amounts to an offer of settlement. If it did, and the amountoffered was less than Ms.

Walsh has actually recovered, then she may be entitled to double costs. [70] Clearly, the evidence that was not admitted was not a formal offer of judgment within the meaning of the Rules but itcould fall within the scope of what has been called a "Calderbank Letter", as mentioned by Ms. Walsh at the hearing in thismatter. However, the evidence would have to establish the existence of a settlement offer made by Ms. Walsh and rejectedby Mobil, which was less than the amount actually awarded.

Nothing about the evidence in question, however, could beconsidered to be in the nature of a settlement offer by either party, and thus it had no relevance to the issue of costs. [71] The evidence was only explicitly rejected at the costs and interest hearing, however, Ms. Walsh also alludes to itspotential relevance to Ms. Bryant's remedy decision. It is not clear whether the specific testimony (now contained in a[n]affidavit) was considered at the remedy hearing. There is no reference to the supervisor or Ms. Walsh's meetings with Mobilin the decision.

However, in awarding a higher than usual general damages award, Ms. Bryant refers to Macleod J.'s use ofsuch terms as "insensitive' and "cruel" in describing the retaliatory actions of Ms. Walsh's supervisors. Macleod J. used thisterminology with specific reference to Ms. Walsh's meetings with the supervisor in question and his subsequent treatment ofher: Walsh QB 2007 at § 75–78. Therefore, Ms. Bryant appears to have taken the impugned evidence into consideration inmaking her general damages award, even if it was not through direct consideration of the testimony contained in Ms.Walsh's affidavit. Ms.

Walsh was not denied procedural fairness at the remedy hearing. B. Did the Tribunal err in law in i. misapplying the principles for determining loss and failing to provide a remedy that would make the victim ofdiscrimination "whole". . . ii. misinterpreting the right to equal pay for some or similar work? OVERVIEW [72] The Tribunal's authority for awarding damages in this case is derived from s. 32 of the Act which confers broad remedialpowers, including the power to compensate a complainant for all or any part of any wages or income lost or expenseincurred by reason of the contravention of the Act.

A human rights tribunal may also make any order as to costs that itconsiders appropriate. [73] While it is true that human rights legislation is "said to be so basic as to be near-constitutional and no way an extensionof the law of tort" Canada (Attorney General) v. Morgan, (FCA), [1992] 2 F.C. 401, [1991] F.C.J. No.1105 (QL) [ 21 C.H.R.R. D/87] at § 9, it is also true that "the goal is exactly the same: make the victim whole for the damagecaused".

Thus, as noted in Morgan, the principles developed by the courts to achieve that goal for the assessment andaward of compensatory damages in dealing with tort liability are necessarily helpful. [74] The main purpose of human rights legislation is compensatory, and not aimed at determining fault or punishingconduct: Berry v. Farm Meats Canada Ltd., 2000 ABQB 682 [reported 39 C.H.R.R. D/317] at § 16; Robichaud v. Canada(Treasury Board), (SCC), [1987] 2 S.C.R. 84 at § 13 [ 8 C.H.R.R.

D/4326 at § 33940]. [75] As noted in Morgan at p. 5 [C.H.R.R. § 10], the tribunal should "exclude consequences which appear down the chain ofcausality, but are too remote in view of all the intervening facts. Whatsoever the source of liability, common sense stillapplies". [76] While the tribunal has a broad discretion to make an order for compensation for "any or all" wages lost, this discretionmust be practiced on a principled basis: Chopra at § 37. APPLIED TO THIS CASE [77] Ms. Walsh submits that Ms. Bryant did not address the issue of "equal pay for the same work" set out in s. 6(1) of theAct.

She submits that Ms. Bryant had two choices to guide her in determining loss: (

a) to accept Mobil's progression theory as set out in Mobil's policies, where salary is based on progression that utilizesyears of service and performance evaluations to determine salary, or (

b) to accept the proposition of equal pay for same work based on skill, effort, responsibility and working conditions. [78] Ms. Bryant clearly chose to assess compensation based on Mobil's compensation and progression policies. She heldthat these policies were not discriminatory in any manner; rather it was Ms. Walsh's treatment with respect to her placementwithin those policies that was determined to be discriminatory. She found that calculating compensation consistent withMobil's policies allowed her to track what Ms. Walsh's progress should have been within the limits of those policies, whilegiving Ms.

Walsh the benefit of achieving the highest performance rating she ever achieved at Mobil, and allowing her to

advance more quickly through the professional development ladder. [ 79 ] Ms. Bryant heard evidence with respect to Ms. Walsh's career progression and salary during this period from two economic experts: one on behalf of Ms. Walsh and Cara Brown of Brown Economic Consulting Inc. on behalf of Mobil. Ms. Bryant determined that while both experts had the same approach to methodology, Ms. Brown had been given access to significantly more relevant data to use in applying that methodology to Ms. Walsh's case and that Ms. Walsh's expert had received instructions on Ms. Walsh's salary group designation in 1989 that Ms.

Bryant found were not consistent with Mobil's policies. [ 80 ] In that regard, Ms. Walsh and Mobil differed on whether Ms. Walsh's year of administration ("YOA") for the purpose of these policies should be 1986 or 1984. Ms. Bryant found that the tribunal that first heard these complaints in 2005 had accepted 1986 as Ms. Walsh's YOA, and this finding had not been appealed. She found that the remedy hearing was not the forum to address this: § 58 and 168 of the Walsh remedy decision. Ms. Bryant pointed out that a salary group of 14 in 1989, which was what Ms.

Walsh submitted was appropriate, was not consisted [ sic ] with Mobil's policies even if Ms. Walsh's YOA was 1984: § 59 of the Walsh remedy decision. [ 81 ] Ms. Bryant accordingly made a series of factual findings and engaged Ms. Brown to use those findings to come to a total amount of award for lost income. [ 82 ] Ms. Bryant made the following findings with respect to position titles and salary groups in which Ms.

Walsh should have been placed between 1989 and 2000: 1998 Land Representative I — salary group 11 1990 Land Representative II — salary group 12 1991 Land Representative II — salary group 12 1992 Senior Land Representative — salary group 14 1993 Senior Land Representative — salary group 14 1994 Senior Land Representative — salary group 14 1995 Senior Land Representative — salary group 14 1996 Staff Land Representative — salary group 15 1997 Staff Land Representative — salary group 15 1998 Senior Staff Land Representative — salary group 16 1999 Senior Staff Land Representative — salary group 16 2000 Senior Staff Land Representative — salary group 16 [ 83 ] She found that Ms.

Walsh would not have received salary increases in 1991 to 1995 and 1998 to 1999 as salary freezes were in place over these periods. However, she found that, despite salary freezes, Ms. Walsh would have received wage increases when she moved to salary group 14 in 1992 and salary group 16 in 1998. [ 84 ] Ms. Bryant found that Ms. Walsh would have been eligible to receive variable lump sum bonus payments for the years 1997, 1998, 1999 and 2000 as follows: 1997 $10,267; 1998 $15,095; 1999 $7,188 plus $905; and 2000 $9,490 [ 85 ] She found that no negative contingencies should be applied to Ms.

Walsh's earnings from August 14, 1989, to December 31, 2000. [ 86 ] Ms. Bryant found 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 and that Ms. Walsh's actual earnings over the period August 14, 1989, to December 31, 2000, should be deducted from her income loss. [ 87 ] In

summary, she accepted the loss of income calculations prepared by Brown Economic that were based on her findings and awarded Ms. Walsh $472,766 for loss of income for the period August 14, 1989 to December 31, 2000. [ 88 ] I find that Ms. Bryant was correct in finding that any assertion that Mobil's policies were discriminatory should have been made at the liability stage of the hearing process, and that such a complaint was too late to be raised at the remedy stage.

I also find that she applied the policies as they are written, based on factors of experience, education and merit and without gender-related considerations, and that this was consistent with the Alberta Human Rights Commissions Information

Sheet on Equal Pay for Similar Work. It was not necessary for Ms. Bryant to discard the policies and engage in a free-standing analysis of job descriptions and industry-wide comparator at the remedies stage of the hearing. iii. failing to apply the proper test for causation iv. misapplying the principles of forseeability as set out in Chopra [89] Ms. Walsh submits that if Ms. Bryant had properly applied the "but for" test for causation, she would have awarded lossof income and related pension and fringe benefits to Ms. Walsh's date of retirement, and not cut off liability as at the end of2000. Ms.

Walsh submits that Ms. Bryant should have found that, without the retaliation, she would not have been fired andwould still be employed by Mobil. She submits that her physical limitations and concerns would have been accommodatedby Mobil as required. [90] The law of causation in torts has been the subject of extensive consideration by the Supreme Court of Canada. Untilrecently, the leading case was Resurfice Corp. v. Hanke, 2007 SCC 7 , [2007] 1 S.C.R. 333 at § 21–22 in which theapproach to be taken was described as follows: First, the basic test for determining causation remains the "but for" test.

This applies to multi-cause injuries. The plaintiffbears the burden of showing that "but for" the negligent act or omission of each defendant, the injury would not haveoccurred. Having done this, contributory negligence may be apportioned, as permitted by statute.

This fundamental rules has never been displaced and remains the primary test for causation in negligence actions. [91] The Court in Resurfice also indicated at § 23 that, where the losses sustained may not be connected to the acts of thedefendant, no liability for the loss will be found: The "but for" test recognizes that compensation for negligent conduct should only be made "where a substantial connectionbetween the injury and the defendant's conduct" is present.

It ensures that a defendant will not be held liable for theplaintiff's injuries where they "may very well be due to factors unconnected to the defendant and not the fault of anyone":Snell v. Farrell, at p. 327, per Sopinka J. [Emphasis added.] [92] The Supreme Court at the end of June 2012 released its decision in Clements v. Clements, 2012 SCC 32, whichclarifies the law of causation and the respective roles of the "but for" and "material contribution" tests. Relevant to the issueof causation in this case, the Court summarized the present state of the law in Canada at § 46 as follows: . . .

As a general rule, a plaintiff cannot succeed unless she shows as a matter of fact that she would not have suffered theloss "but for" the negligent act or acts of the defendant. A trial judge is to take a robust and pragmatic approach todetermining if a plaintiff has established that the defendant's negligence caused her loss. Scientific proof of causation is notrequired. McLachlin C.J. for the majority noted at § 8–9 that a plaintiff must show on a balance of probabilities that "but for" the act ofthe defendant, the injury would not have occurred: . . .

Inherent in the phrase "but for" is the requirement that the defendant's negligence was necessary to bring about theinjury – in other words that the injury would not have occurred without the defendant's negligence. This is a factual inquiry. Ifthe plaintiff does not establish this on a balance of probabilities, having regard to all the evidence, her action against thedefendant fails. The "but for" causation test must be applied in a robust common sense fashion. [93] Ms. Bryant conducted a thorough and lengthy review of the medical evidence of Ms. Walsh's psychological andphysical condition.

She made the following findings (at § 127, 134, 146, 149): The Tribunal is of the opinion that Ms. Walsh's initial depression was related to her job loss and the retaliation of hersupervisors. Later, her significant physical problems and related pain issues would have exacerbated her depression. This isfollowed by depression related to opioid addiction and the lengthy human rights process. In other words, there is no singlesource that contributed to Ms. Walsh exhibiting elements of depression over this 19-year period. . . . The Tribunal finds that Ms.

Walsh does not suffer from PTSD and that there is no single cause for the depression shehas suffered periodically over the last 19 years. The Tribunal has accepted Dr. Maybaum's opinion that her underemployment was a result of either temporary positions orphysical pain and fatigue. It also accepts Dr. Ancill's opinion that chronic pain would have contributed to her depression. The Tribunal finds that Ms.

Walsh's physical problems which have resulted in chronic pain and the medications prescribed todeal with that pain have had a significant impact on her ability to work and her daily living. [94] In conclusion, Ms. Bryant found as follows (at § 195–96, 198–200): The Tribunal is aware that damages awarded have to flow from the discriminatory act or acts and that there must be acausal link between the discriminatory practices and the loss claimed, as in Morgan, supra.

Further, it is the Tribunal's responsibility to try to "make the victim [complainant] whole for the damage caused by the actsource of liability", as in Pitawanakwat v. Canada (Attorney General) (Pitawanakwat), (FC), [1994] 3 F.C.298 [ 21 C.H.R.R. D/355] (T.D.) at para 28. In this regard, human rights legislation is compensatory not punitive.

The Tribunal endorses and will follow the principle that common sense requires that "some limits be placed upon liability forthe consequences flowing from

an act". In this case, 19 years have lapsed since the filing of Ms. Walsh's first complaint. The Tribunal has found that no party is atfault in respect of the delay. Nonetheless, common sense and reasonableness would suggest that some limit upon liability isrequired. As noted in Morgan, supra, the difficult exercise is the determination of a cut-off point. This is particularly true inthis case where considerable time has lapsed between the discriminatory acts and the damages to be awarded.

Following Morgan, supra, and Pitawanakwat, supra, and carefully analyzing the evidence as presented, the Tribunal findsthat there is no causal link between the acts of discrimination and retaliation and the loss claimed after the year 2000.Consequently, the cut off point is December 2000. [95] In reaching this conclusion, Ms. Bryant took into account the following factors (at § 202–06): Between 1995 and 2000, Ms. Walsh did what she could to deal with her loss of income and her health.

She worked whenshe could up until November 1998 when she had to stop due to hip and back pain associated with the motor vehicleaccident and a pre-existing condition. She took steps to deal with her medical condition by having a hip replacementoperation in August of 1999 and back surgery in May 2000. In April 1999, she applied for assistance under Assured Income for the Severely Handicapped (AISH) and in February 1999she requested assistance from the Workers' Compensation Board. No similar initiatives occurred post 2000. Drs. Maybaum, Ancill and Darling all referred to the fact that Ms.

Walsh suffered some form of depression following herdismissal. Pain from her hip and back problems also contributed to her depression. The Tribunal believes that without thediscrimination, retaliation and litigation process, Ms. Walsh would have been better able to deal with her physical issuesbetween 1995 and 2000. The same rationale does not apply to the period beyond 2000 when Dr. Maybaum has stated that Ms. Walsh developed anopioid pain medication addiction from 2000 to 2006 when she was not working. It was his opinion that this would havesignificantly contributed to a depressed mood state.

The Tribunal finds no causal link between this period of time and theacts of discrimination. The Tribunal noted the diagnosis of Dr. Boyles in November 1996 which stated that Ms. Walsh would likely experience areduced vitality of 15–20% of normal activities for the rest of her life. Her family physician Dr. Turner stated in 2003, "Ianticipate she is unlikely to be gainfully employed due to her back pain". It is clear to the Tribunal that if Ms.

Walsh wasunable to work after 2000, it was not the result of the acts of discrimination and retaliation but rather because of her physicalproblems and opioid addiction. [96] Ms. Walsh submits that in adopting the proposition that common sense required that some limits be placed on liability,Ms. Bryant failed to consider Chopra. The Court at § 32 of Chopra clarified that "Morgan is not authority for the propositionthat foreseeability applies to limit the extent of loss recoverable, as opposed to the kind of loss recoverable". [97] Ms. Walsh is correct.

Morgan is not authority for the proposition that the principle of foreseeability can be used to set atime limit on damages for lost income. However, Chopra is not authority for the reverse, either. In her brief, Ms. Walshseems to suggest that because Chopra was decided later, it amounts to a reversible [sic] of Morgan, such that relying onMorgan amounts to reviewable error. [98] Quite simply, neither Morgan nor Chopra are authority for the law of foreseeability as it applies to the extent to whichloss may be recovered.

Foreseeability is, like causation, a principle that has been imported into the human rights context, asnoted by the Supreme Court of Canada in Hodgkinson v. Simms, (SCC), 97 B.C.L.R. (2d) 1, [1994] 9W.W.R. 609, 22 C.C.L.T. (2d) 1, 117 D.L.R. (4th) 161, 171 N.R. 245, 57 C.P.R. (3d) 1, 16 B.L.R. (2d) 1, 49 B.C.A.C. 1, 80W.A.C. 1, [1994] 3 S.C.R. 377: . . . it is well established that damages must be foreseeable as to kind, but not extent; as such any distinction based on theunforeseeability of the extent of the [loss] must be dismissed. . . [99] It is not at all clear that Ms.

Bryant used Morgan to limit the length of time of Ms. Walsh's post-termination loss ofincome. Ms. Bryant's comments make it clear that it was her opinion that, as of 2000, Ms. Walsh's reasons for not workingno longer had a sufficient causal link with the effects of her depression but were at that point far more related to her neck,back and hip problems. [100] In essence, Ms. Bryant determined that the termination was a significant or material cause of Ms. Walsh'sunemployment until the end of 2000, but not after.

This was a reasonable, and correct, application of a causation analysis,consistent with Resurfice and Clements such that the resulting finding of fact warrants some deference. [101] In fact, Chopra recognizes that the fact that foreseeability may not be an appropriate device for limiting loss does notmean that liability for loss is unlimited, commenting at § 37 that "there must be a causal link between the discriminatorypractice and the loss claimed". [102] Had Ms. Bryant extended liability beyond 2000, that may have given rise to error. Ms.

Walsh herself maderepresentations during the workers compensation process and litigation that made it clear that there were multiple causes toher income loss that included her physical injuries from the accident. To hold Mobil liable beyond 2000 for the entirety ofincome loss given these admissions would be to assign to a single tortfeasor in a multiple tortfeasor scenario theresponsibility for the entire loss. Just as it is contrary to the principles of corrective justice referred to in Clements to allow

multiple tortfeasors to avoid liability by pointing fingers at another wrongdoer, it cannot be consistent with the goals of tort law to assign all liability to one actor in this case. [ 103 ] Ms. Walsh's choice in the accident litigation to abandon her claim for income loss, made with the advice of counsel, cannot create unlimited liability or causation for the entirety of that loss to Mobil. v. miscellaneous other errors [ 104 ] Ms. Walsh in her appeal from the Walsh remedy decision has taken issue with the methodology used by Ms. Brown and thus the outcome for the assessment of her loss of income damages.

In her brief, she sets out a myriad of concerns she has with the approach taken, but I find that, with respect to many of them, she did not adduce evidence to establish any actual errors in the factual findings made by Ms. Bryant or the mathematical approach taken by Ms. Brown. In some instances, Ms. Walsh merely takes a different view of the evidence from that taken by Ms. Bryant or the economist. [ 105 ] Without specifically addressing all of the submissions made by Ms. Walsh, I note the following: (

a) Ms. Brown did not improperly provide medical opinion but provided a narrative from the documentary evidence of material events, including health concerns that impacted Ms. Walsh's employability. These comments were not inconsistent with Ms. Bryant's findings of fact. (

b) The use of the Professional Development Ladder by Ms. Brown was not inappropriate or inaccurate, but a reasonable tool given that Mobil's policies had not been found to be discriminatory per se. At any rate, Ms. Walsh's comparison of the Ladder with the career progression of the comparators is incorrect. (

c) It was reasonable for Ms. Brown to include a transfer adjustment in Ms. Walsh's 1991 compensation, and Ms. Walsh's submissions with respect to deletions of taxable income are not logical or sustainable. (

d) Ms. Brown's calculations with respect to fringe benefits are reasonable and correct. (

e) Ms. Walsh's estimate of her income loss is higher than even her own expert report presented at the hearing, and rife with errors. Ms. Bryant correctly reduced amounts of actual income received by Ms. Walsh during applicable years in accordance with principles of mitigation. (

f) Ms. Bryant was entitled to prefer the opinion of Dr. Maybaum over that of Dr. Ancill on the issue of opioid addiction. To do so was justified on the evidence, supported by other witnesses. (

g) Reading the decision as a whole, Ms. Bryant did not fail to identify or acknowledge the effects on Ms. Walsh of the discrimination and retaliation. She referred to these effects, even though not in the detail and length that Ms. Walsh would have preferred. Ms. Bryant did not diminish these effects, and in fact referred to them in the course of her findings on Ms. Walsh's psychological and physical condition and in her references to the liability decisions. (

h) Ms. Walsh complains that Ms. Bryant did not properly apply the principles of mitigation, but, on examination, these submissions related to the issue of causation that has been addressed elsewhere in this decision. [ 106 ] I am unable to find that Ms. Bryant's findings were unreasonable, or that she was in error with respect to these miscellaneous grounds of appeal, and note that both counsel consented to Ms. Bryant providing her factual assumptions to Ms. Brown to perform the calculations. C. Did the Tribunal err in failing to award Ms.

Walsh all of her costs and expenses? [ 107 ] I take this to be a general ground of appeal that in the Walsh costs decision, Ms. Bryant did not award Ms. Walsh the entirety of her legal costs and personal expenses. [ 108 ] Ms. Bryant followed the decision of the majority of the Court of Appeal with respect to legal costs, and I can find no error in that decision, even if I were inclined to the view of the trial judge and the minority decision in Walsh CA 2008 . However, the Walsh costs decision does not refer to any reasons why Ms.

Walsh's personal costs are not compensable, nor any details with respect to her claim of $30,508.56 in that regard. I find that Ms. Bryant failed to provide adequate reasons to justify a failure to make any award for personal expenses, and I must direct that issue back to the Tribunal for further consideration. D. Did the Tribunal err in making contradictory findings from the merits portion and the remedy portion of the hearing? [ 109 ] The submissions made by Ms. Walsh under this heading have largely been dealt with under other issues of appeal. They related primarily to Ms.

Walsh's submissions on the year of administration issue and her submission that Ms. Bryant failed to accept the principle of equal pay for equal work. She also submitted that there were differences between the remedies decisions and the costs decision that on examination do not amount to differences, or are a matter of

interpretation. [ 110 ] In

summary, I fail to find that Ms. Bryant erred with respect to any of the grounds of appeal raised by Ms. Walsh, and I dismiss her appeal in its entirety, other than with respect to the issue of personal costs, which I refer back to Ms. Bryant. Mobil's Appeal Did the Tribunal err in:

i. failing to properly consider Ms. Walsh's election to attribute her income losses after she was terminated to the motor vehicle accident, thus allowing an abuse of process? [ 111 ] Ms. Bryant did consider the Workers' Compensation litigation and Ms. Walsh's claim in the context of that litigation in her decision at § 207 to 210, concluding that Ms. Walsh had the right to pursue her claims in both the Workers' Compensation and human rights forums because each forum would address the claims differently based on their distinct mandates. She also appears to have accepted that Ms.

Walsh did not in fact receive any compensation for lost earnings in the settlement of that action. [ 112 ] The test for estoppel by election has not been met in this case. Ms. Walsh does not seek to retain an award from lost income from the accident litigation and claim an award under the same head of damage in the human rights hearing. She abandoned the lost income claim in the settlement of the accident action. In addition, Mobil did not rely on an election to its detriment: Freyberg v. Fletcher Challenge Oil and Gas Inc. , 2005 ABCA 46 at § 127.

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 findings of the Tribunal relating to the contribution of both the physical and psychological consequences of the accident and the consequences of the discrimination and retaliation to Ms. Walsh's health, it cannot be said that the claims advanced are "diametrically opposed", or that Ms.

Walsh was acting with full knowledge of whether the accident or the discrimination and retaliation caused her losses. [ 113 ] Mobil relies extensively on representations Ms. Walsh made during the course of the accident litigation. These representations were not made to Mobil, nor are they alleging estoppel by representation. [ 114 ] Nor have the requirements of abuse of process been established.

The issue of loss of income was not determined in the accident litigation by any judicial decision and the parties were not the same. [ 115 ] While issue estoppel is not the only factor that may give rise to abuse of process, there are in this case no real issues of judicial economy, consistency or finality here, and no challenge to the integrity of the administration of justice. There is no injustice in allowing the claim to proceed in the human rights forum, particularly as Ms.

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. ii. failing to properly apply the law, interpret the evidence and follow the Tribunal's own findings of fact regarding the awards for damages for loss of income, loss of fringe benefits and loss of pension benefits [ 116 ] Under this ground of appeal, Mobil submits that Ms. Walsh should only have been awarded compensation to the end of 1997 or 1998, when it submits that Ms.

Walsh became unable to work due to causes unrelated to Mobil's conduct. Mobil argues that Ms. Bryant made correct findings of fact, but failed to follow the evidence when she awarded compensation to the end of 2000. [ 117 ] Mobil relies in this regard on Ms. Walsh's work experience after she was terminated from Mobil, and Ms. Bryant's findings that she was unable to continue land work because the driving was too much and she suffered pain and could not accept a teaching position at Olds College because of pain. This argument ignores the difference between her full-time employment with Mobil had Ms.

Walsh not been terminated in retaliation, and the accommodation that Mobil would have had to offer, and this kind of short-term, contract and part-time work Ms. Walsh undertook after her termination. In fact, Ms. Walsh had been able to cope with her accident-related pain in the acute period immediately after the accident, only reaching a point where she could not work after her termination. It also ignores Ms. Bryant's finding of fact that, without the discrimination, retaliation and litigation process, Ms. Walsh would have been better able to deal with her physical issues between 1995 and 2000.

This finding of fact is sustainable on the evidence. [ 118 ] Ms. Bryant's cut-off point on causation was Ms. Walsh's development of an opioid pain medication addiction in about 2000. Given the medical evidence, buttressed by Ms. Walsh's employment history and her lack of employment for the six- year period before she was able to overcome this addiction, this was a reasonable cut-off date, and I find no error in Ms. Bryant's decision in this regard.

As pointed out in Clements at § 38, the law of negligence has never required scientific proof of causation and common sense inferences from the facts may suffice. [ 119 ] While not formally part of her appeal, Ms. Walsh submits in response to the Mobil appeal that Ms. Bryant erred in applying the principle of mitigation "in finding that by taking the prescribed medication I did not mitigate my loss". This argument arises from Ms. Walsh's denial that she suffered from an addiction to prescription medication. Ms.

Walsh submits that, if such an addiction had developed, she would have been accommodated by Mobil, and that therefore the cut-off date of 2000 is arbitrary and made in error. Ms. Walsh submits that she is entitled to damages for loss of income until her retirement date. [ 120 ] Ms. Bryant did not in fact make an adverse finding against Ms. Walsh with respect to the addi[c]tion issue, but merely found that this period of time marked the end of the causal link of consequences to Mobil's acts of discrimination and retaliation. Ms. Bryant was entitled to take a robust, common sense

interpretation of the "but for" test and that is what she did. iii. setting the quantum of damages awarded in the period between the first complaint and the termination date [ 121 ] Mobil submits that Ms. Bryant's finding that Ms. Walsh would have obtained a salary grade of 14 in 1992 as a Senior Land Representative was incorrect and unreasonable. It does so on the basis that Ms. Bryant found that "highly effective" was the highest performance rating that Ms. Walsh had received, and that she had never received an "among the best" rating. However, Ms. Bryant relied on more than the actual ratings Ms.

Walsh received when she placed her in salary group 14: § 181–86. She looked at Ms. Walsh's responsibilities, took into account testimony from Mobil witnesses with respect ot

the importance of experience and looked at comparators in other salary groups. I see no error in her conclusion from theevidence. [122] Ms. Walsh, in response to Mobil's appeal of this finding, submits that Ms. Bryant should have placed her in salarygrade 16, rather than 14, primarily on the basis of her "equal pay for the same work" submissions. This submission does notacknowledge that employers are permitted to provide differential pay based on factors unrelated to gender, and wouldrequire Ms. Bryant to entirely discount the difference in experience and seniority in the comparators.

It would amount to"ratcheting", a concept rejected by the Supreme Court in Syndicat des employés de production du Québec et de l'Acadie v.Canada (Human Rights Comm.), (SCC), [1989] 2 S.C.R. 879 [ 11 C.H.R.R. D/1] at § 10. There is nothingincorrect in Ms. Bryant's approach to placement with the Mobil salary grid. She took into account all relevant factors. [123] In

summary, according the Tribunal the deference due to a factual finding, reached as the result of the correctapplication of the law, I agree with the Tribunal's assessment of damages for lost income. iv. misinterpreting and misapplying the law regarding general damages in the human rights context, thus awardingexcessive, unreasonable and unprecedented general damages [124] While the authority to award "general damages" in the sense that term is used in tort law is not specifically itemized inthe Act, s. 32(5) gives a tribunal authority to "take any other action [it] considers proper to place the person dealt withcontrary to this Act in the position the person would have been in but for the contravention of this Act".

This provisions [sic]had long been interpreted as giving authority to give victims of discrimination awards for general damges. [125] In this case, Ms. Bryant awarded Ms. Walsh $10,000 for her first complaint, and $25,000 for her second complaint.The grounds for Mobil's appeal are that there is no precedent for a $25,000 award under this head of damages in Albertajurisprudence, and that the result is that Ms.

Walsh is being given a general damages award more consistent with personalinjury law than with human rights compensation. [126] It is quite true that there is no precedent for a $25,000 award for a single complaint under the Act or any of itspredecessors in Alberta law. That, however, is no basis for interfering with Ms. Bryant's conclusions. The Act sets no limits.Further, the compensatory nature of the Act which is the basis for the use of tort principle

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