Way-Patenaude v Alberta (Human Rights Tribunal), 2021 ABQB 302

Court of Queen’s Bench of Alberta Citation: Way-Patenaude v Alberta (Human Rights Tribunal), 2021 ABQB 302 Date: 20210419 Docket: 2003 10487 Registry: Edmonton Between: Olga Way-Patenaude Applicant - and - Human Rights Tribunal, Alberta Human Rights Commission and Clean Harbor Energy & Industrial Services Corp. Respondents _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice G.S. Dunlop _______________________________________________________ 1. Overview [ 1 ] Olga Way-Patenaude appeals a decision of the Alberta Human Rights Tribunal which ordered her employer, Clean Harbors

Energy and Industrial Services Corp., to pay her $10,000 in general damages plus interest, based on a finding that Clean Harbors retaliated against Ms. Way-Patenaude for filing a human rights complaint against Clean Harbors. [ 2 ] In oral submissions before me on April 8, 2021, Ms. Way-Patenaude argued that her retaliation complaints which led to the Tribunal decision which is before me, should have been combined and considered together with her discrimination complaint which the Human Rights Commission dealt with in a separate proceeding and which resulted in a separate judicial review in this Court. Ms.

Way- Patenaude submits that I should order that all her complaints be combined and dealt with by one person or tribunal. The only reference to this in Ms. Way-Patenaude’s written submission is a handwritten note on the fourth page. Ms. Way-Patenaude makes no reference to a combined hearing in her originating application filed on June 23, 2020. While I sympathize with Ms. Way-Patenaude’s frustration over what she has experienced as a lengthy and convoluted process, I have no jurisdiction to order a new combined hearing.

My jurisdiction is limited by the Alberta Human Rights Act to addressing the Tribunal’s decision regarding retaliation. [ 3 ] In her written submission filed November 4, 2020, Ms. Way-Patenaude submits that the Tribunal erred in several findings of fact, weighing of evidence, and assessment of damages. She does not allege any errors of law by the Tribunal. Consequently, the issue on this judicial review is whether on any of the points raised by Ms. Way-Patenaude, the Tribunal made a palpable and overriding error. I find that the Tribunal made no palpable and overriding errors and I dismiss Ms.

Way-Patenaude’s appeal. 2. Jurisdiction [ 4 ] On November 4, 2020, Ms. Way-Patenaude filed a bundle of documents entitled “Certificate of Record of Proceedings”. That is not an accurate title, and it creates a potential for confusion because the record of proceedings is ordinarily filed by the tribunal whose decision is under appeal. That happened in this case on October 6, 2020 when the Tribunal filed a bundle of documents entitled “Tribunal Proceedings Filed Pursuant to Section 37(3) of the Alberta Human Rights Act”. To reduce the potential for confusion, I will refer to the bundle of documents Ms.

Way-Patenaude filed on November 4, 2020 as her written submission and I will refer to the bundle of documents the Commission filed on October 6, 2020 as the record. [ 5 ] At the top of the fourth page of her written submission, Ms. Way-Patenaude added the following handwritten note: Failed to Entwine all my Cases. All done Separate. [ 6 ] During her oral submissions Ms.

Way-Patenaude clarified that she objects to the Human Rights Commission treating her complaint submitted in July 2013 alleging discrimination as one complaint and her complaints submitted in September, October and November, 2013, alleging retaliation, as a second complaint, resulting in two separate processes. She submits that I should order a new hearing which would address all her complaints against Clean Harbors in a single process. [ 7 ] My options on this appeal are limited by s. 37(4) of the Alberta Human Rights Act , which states: The Court may (

a) confirm, reverse or vary the order of the human rights tribunal and make any order that the tribunal may make under

section 32, or (

b) remit the matter back to the tribunal with directions. [ 8 ]

Section 32 lists various orders the Tribunal may make. None of them is the joining of several complaints into a single hearing. Consequently, I do not have the authority on this appeal to direct a new hearing of all complaints Ms. Way-Patenaude made to the Human Rights Commission. My authority is limited to the complaint that was before the Tribunal, which is Ms. Way-Patenaude’s retaliation complaint. 3. Standard of Review [ 9 ]

Section 37 of the Alberta Human Rights Act gives each party to a proceeding before a human rights tribunal a right to appeal to this Court. Based on that statutory wording, the standard by which I must review the Tribunal’s decision in this case is palpable and overriding error with respect to findings of fact and mixed fact and law, and correctness with respect to findings of law: Canada (Minister of Citizenship and Immigration) v Vavilov 2019 SCC 65 at para. 36 – 37 . [ 10 ] Ms. Way-Patenaude has not alleged any errors of law.

Consequently, the standard of review that applies to this case is palpable and overriding error. That standard has been explained by the Federal Court of Appeal as follows: “Palpable" means an error that is obvious.

Many things can qualify as "palpable." Examples include obvious illogic in the reasons (such as factual findings that cannot sit together), findings made without any admissible evidence or evidence received in accordance with the doctrine of judicial notice, findings based on improper inferences or logical error, and the failure to make findings due to a complete or near-complete disregard of evidence. But even if an error is palpable, the judgment below does not necessarily fall. The error must also be overriding. "Overriding" means an error that affects the outcome of the case.

It may be that a particular fact should not have been found because there is no evidence to support it. If this palpably wrong fact is excluded but the outcome stands without it, the error is not "overriding." The judgment of the first-instance court remains in place. Mahjoub v Canada (Citizenship and Immigration) 2017 FCA 157 at para 62 – 64

[ 11 ] Damage assessments by human rights tribunals are subject to substantial deference by a court on appeal or judicial review: Interference is only justified where the decision maker: (1) made an error of principle or law; (2) misapprehended the evidence; (3) erred in finding there to be evidence on which to base a conclusion; (4) failed to consider relevant factors, or considered irrelevant factors; or (5) made "a palpably incorrect" or "wholly erroneous" assessment of the damages: Naylor Group Inc v Ellis-Don Construction Ltd , 2001 SCC 58 at para 80 : Booster Juice Inc v West Edmonton Mall Property Inc , 2019 ABCA 58 at para 10 .

Sunshine Village Corporation v Boehnisch 2020 ABQB 692 at para 183 4. Background [ 12 ] Clean Harbors hired Ms. Way-Patenaude as an equipment operator on July 3, 2012. In 2013 Ms. Way-Patenaude filed complaints about Clean Harbors with the Alberta Human Rights Commission. The first complaint, which she filed on July 28, 2013, alleged gender and age discrimination with respect to wages. Ms. Way-Patenaude sent letters to the Commission dated September 4 and 28, 2013 and signed a complaint form dated November 7, 2013, all of which allege Clean Harbors had retaliated against Ms. Way- Patenaude.

The Commission treated those three documents as a second complaint by Ms. Way-Patenaude and processed it separately from her first complaint. [ 13 ] The first complaint was investigated and ultimately dismissed by the Chief Commissioner on October 2, 2018. Ms. Way- Patenaude sought judicial review of the Chief Commissioner’s decision on the first complaint. Richardson, J. dismissed Ms. Way- Patenaude’s judicial review of her first complaint on May 11, 2020: Way-Patenaude v Alberta (Human Rights Commission) 2020 ABQB 314 . [ 14 ] In August and September 2013, after Ms.

Way-Patenaude had filed her first complaint, Clean Harbors changed her work

schedule and her husband’s work schedule, gave her a verbal warning for failing to attend work, and gave her a three-day suspension while it investigated her for alleged harassment and disrespectful workplace behavior. Ms. Way-Patenaude’s second complaint to the Human Rights Commission, set out in her September letters and the November complaint form, alleged that those actions by Clean Harbors were retaliation against her for her first complaint. Ms. Way-Patenaude’s second complaint was heard by the Tribunal over three days from February 3 to 5, 2020.

The Tribunal issued its decision on May 25, 2020, finding that Clean Harbors did retaliate against Ms. Way-Patenaude and awarding her $10,000 in damages. [ 15 ] In the meantime, Ms. Way-Patenaude took leave from her employment with Clean Harbors in October 2014. She filed an application for Workers’ Compensation, and began receiving Workers’ Compensation benefits following a successful appeal to the Appeals Commission which released its decision on December 23, 2016. Ms. Way-Patenaude received Workers’ Compensation benefits retroactive to October 8, 2014. 5.

Tribunal’s Decision [ 16 ] Based on the fact that Clean Harbors’ gave a verbal warning to Ms. Way-Patenaude and issued her a three-day suspension on the first days she was back at work following her first complaint to the Human Rights Commission, the Tribunal found that there was a link between the warning and suspension, on the one hand, and Ms. Way-Patenaude’s complaint to the Commission, on the other hand. The Tribunal also found that the explanation of Clean Harbors’ witnesses for the

schedule change Clean Harbors imposed on Ms. Way- Patenaude and her husband was “vague and unpersuasive”, and found a link between the

schedule change and Ms. Way-Patenaude’s human rights complaint. [ 17 ] The Tribunal found that the verbal warning and the three-day suspension, while linked to her human rights complaint, were not a deliberate response by Clean Harbors to that complaint, because the warning and suspension were rationally connected to Ms. Way- Patenaude’s conduct. Specifically, Ms. Way-Patenaude’s conduct in failing to attend work on August 30, 2013, when she was scheduled to work, with her only notice being a phone call to her supervisor on August 29, 2013, warranted a verbal warning.

The Tribunal noted that Clean Harbors had adopted a new attendance management policy in August 2013, which indicated that discipline would follow an employee missing a shift without prior approval and in circumstances not entirely beyond the employee’s control. The Tribunal also noted that Ms. Way-Patenaude admitted she could have attended work on August 30, 2013 by changing her flights from Newfoundland. [ 18 ] The three-day suspension followed Ms. Way-Patenaude’s reaction to the verbal warning. The Tribunal described Ms.

Way- Patenaude’s reaction as follows at para. 96 of its decision: Patenaude acknowledges that she had her "guard up" going into the meeting on September 1, 2013 and that she "exploded" when she was informed of the verbal warning. She acknowledges that she raised her voice, challenged the employer's decision, and referred to Bissonnette as her "so called supervisor." [ 19 ] The Tribunal noted that one of Clean Harbors’ witnesses testified that it was standard practice to suspend employees who were subject to investigations of alleged harassment and disrespectful workplace behavior and that Ms.

Way-Patenaude called no evidence on this point. Based on that, the Tribunal concluded that there was a rational connection between Ms. Way-Patenaude’s outburst and the three-day suspension. [ 20 ] Based on those findings, the Tribunal held that Ms. Way-Patenaude had not established retaliation by Clean Harbors in giving her a verbal warning and a three-day suspension. [ 21 ] The Tribunal reached a different conclusion with respect to the

schedule change, finding that it was a deliberate response by Clean Harbors to Ms. Way-Patenaude’s human rights complaint and therefore was retaliation. The Tribunal noted that Clean Harbors provided no credible explanation for the coincidental timing of the complaint and the

schedule change and no credible evidence of a

good faith reason for the

schedule change. [ 22 ] The Tribunal’s conclusion regarding retaliation is set out in paragraph 110 of its decision: I find that the change to the crew assignments and shift schedules was a deliberate response to Patenaude's filing of the Discrimination Complaint, intended to punish Patenaude for and / or deter her from asserting her rights under the Act . [ 23 ] In considering the appropriate remedy, the Tribunal first noted at paragraph 111 of its decision that Ms. Way-Patenaude made no specific submissions regarding remedy.

The Tribunal acknowledged that it has the power to compensate for lost wages or income caused by a breach of the Alberta Human Rights Act , but decided that was not appropriate in this case because there was insufficient evidence that the

schedule change caused Ms. Way-Patenaude to be unable to work, and because Ms. Way-Patenaude’s evidence was that she received roughly the same net pay from Workers’ Compensation as she did from Clean Harbors. The Tribunal held that if Ms. Way-Patenaude did suffer a wage loss as a result of the

schedule change, it was fully mitigated by the Workers’ Compensation benefits she received. [ 24 ] The Tribunal went on to consider an award of general damages for injury to Ms. Way-Patenaude’s dignity and self-respect. It noted that there are few cases in Alberta dealing with the appropriate remedy for retaliation, and then went on to consider several cases from Ontario, with general damages for retaliation or threatened retaliation ranging from $5,000 to $20,000.

The Tribunal then assessed damages as follows at paragraphs 129 – 131 of its decision: Returning to the present case, while the shift change may not have been as objectively serious as actually terminating an employee's employment, it was not an insignificant or minor action in the context of the workplace. Moreover, as Clean Harbors acknowledged, the subjective impact on Patenaude was significant. She testified that she was devastated by the news of the

schedule change and that it "turned our lives bottom up." She was emotional in describing the loss of the ability to travel together to see family outside of Fort McMurray on their days off, and her worry about leaving her spouse, who suffers from diabetes and other conditions, home alone when she was working. I award damages in the amount of $10,000. 6. Grounds for Appeal [ 25 ] On the fourth and fifth pages of her written submission Ms. Way-Patenaude lists several items which I understand to be her grounds of appeal. Most of those items start with the word “ERROR”.

In each case the item is an alleged error of fact or mixed fact and law. None is an alleged error of law. Ms. Way-Patenaude has labelled the items with letters A through I. I will follow that organization in my reasons. A job attachment [ 26 ] Ms. Way-Patenaude submits that the Tribunal made an error in paragraph 1 of its decision, by describing her as a “former employee”. Ms.

Way-Patenaude submits that she is still “job attached” with Clean Harbors, based on four documents: • a decision of the Appeals Commission for Workers’ Compensation, dated December 23, 2016; • a decision of the Dispute Resolution and Decision Review Body, dated January 27, 2020; • a December 19, 2019 email from Bernie Haggarty; and • a September 9, 2016 report of grievance. [ 27 ] Of those documents, only the December 23, 2016 Appeals Commission decision was in evidence before the Tribunal (record: exhibit 13). Ms. Way-Patenaude cites paragraph 56 of that decision. That paragraph is silent about whether Ms.

Way-Patenaude is or was an employee, former employee or job attached. [ 28 ] The January 27, 2020 decision of the Dispute Resolution and Decision Review Body, finds at page 7 that Ms. Way-Patenaude is job attached with Clean Harbors based on a September 16, 2016 letter from the General Teamsters, Local Union No. 362. [ 29 ] The December 19, 2019 email from Bernie Haggarty states: James Hiens told us your status is you are off until you are able to return as per the grievance settlement. [ 30 ] The September 9, 2016 report of a grievance states that Clean Harbors agrees to reinstate Ms.

Way-Patenaude to full time employment when she is ready to return to work. It does not say she was employed then, in September 2016. It implies the opposite, that she was not employed then but could become reemployed in the future. [ 31 ] It is clear from the Tribunal’s decision that it was aware that Ms. Way-Patenaude was employed by Clean Harbors when the retaliation occurred in August 2013, which is the relevant date. Furthermore, the description of Ms. Way-Patenaude as a former employee in the Tribunal’s May 25, 2020 decision was accurate, because Ms.

Way-Patenaude at that time and at the time of the hearing in February 2020 was not working for Clean Harbors. [ 32 ] The Tribunal committed no palpable and overriding error in describing Ms. Way-Patenaude as a former employee of Clean Harbors.

B date of human rights complaints [ 33 ] Ms. Way-Patenaude submits that the Tribunal misstated the dates of her first and second human rights complaints. The Tribunal at paragraph 2 of its decision states that she filed her first complaint on July 28, 2013 and at paragraph 18 of its decision states that she filed her second complaint in November 2013. Ms. Way-Patenaude has attached to her written submission a copy of her first complaint which is stamped received by the Human Rights Commission on July 23, 2013 and marked accepted by the Human Rights Commission on July 26, 2013. [ 34 ] Ms.

Way-Patenaude has also attached to her written submission two handwritten documents. One is dated by Ms. Way- Patenaude September 4, 2013 and stamped received by the Human Rights Commission on September 26, 2013, and the other is dated by Ms. Way-Patenaude September 28, 2013 and stamped received by the Commission October 2, 2013. Ms. Way-Patenaude describes them as “1 st Retaliation” and “2 nd Retaliation”. [ 35 ] None of the documents Ms. Way-Patenaude attached to her written submission on this point were in evidence before the Tribunal.

However, the evidence before the Tribunal did include a Human Rights Complaint Form stamped received by the Human Rights Commission on November 18, 2013 and marked accepted by the Human Rights Commission on December 6, 2013 (record: exhibit 21). [ 36 ] The Tribunal may have been off by a few days in stating that Ms. Way-Patenaude’s first complaint was filed on July 28, 2013, but a physical copy of the first complaint was not in evidence before the Tribunal.

The Tribunal’s description of the second complaint being filed in November 2013 was accurate because that is the date stamped on the complaint document in evidence. The two handwritten documents which were received by the Commission in September and October 2013 were not in evidence before the Tribunal. [ 37 ] I conclude the Tribunal’s description of the dates of Ms. Way-Patenaude’s complaints is substantially correct. Furthermore, the dates of the complaints had no bearing on the Tribunal’s decision. The precise dates are irrelevant.

Even if the Tribunal made an error on the dates, it was a minor, inconsequential error; not a palpable and overriding one. C date of Workers’ Compensation award [ 38 ] In paragraph 19 of its reasons, the Tribunal stated that Ms. Way-Patenaude has received Workers’ Compensation benefits since fall 2014. Ms. Way-Patenaude submits that is an error because she did not win her Workers’ Compensation case until 2017. The Appeals Commission decision is dated December 23, 2016 (record: exhibit 13, p. 37), and Ms.

Way-Patenaude was notified in January 2017 that she would receive benefits retroactive to October 8, 2014 (record: exhibit 8). I agree the Tribunal’s wording could have been more precise, but the important point for the Tribunal’s decision is that Ms. Way-Patenaude received benefits from WCB covering the period from October 2014 to the present. The fact that receipt of those benefits was delayed until 2017, while no doubt significant to Ms. Way-Patenaude, would not change the Tribunal’s reasoning that Ms. Way-Patenaude did not suffer a loss of income. The Tribunal’s imprecise wording regarding when Ms.

Way-Patenaude received Workers’ Compensation benefits is not a palpable and overriding error. D Joe Patenaude’s medical conditions [ 39 ] At paragraph 20 of its decision, the Tribunal described the effect Clean Harbors’ actions had on Ms. Way-Patenaude. Part of that paragraph notes that Ms. Way-Patenaude was worried about her husband, Joe Patenaude, who the Tribunal described as suffering from diabetes and other conditions. Ms. Way-Patenaude submits this is an error because her husband did not suffer from diabetes. However, Ms.

Way-Patenaude’s testimony in response to a question from the Tribunal was that her husband was a very sick man and his medical conditions included diabetes (record: tab 1, day 1 at 12:56 pm). It was not a palpable and overriding error for the Tribunal to make that finding, given Ms. Way-Patenaude’s testimony. E Ms. Way-Patenaude’s relationship with her physician [ 40 ] In her written submission, Ms.

Way-Patenaude alleges that Clean Harbors’ counsel insinuated that there was more than a doctor-patient relationship between her and her psychiatrist and she requests that the audio recordings of the Tribunal be admitted as evidence. Those recordings are included in tab 1 of the record. In oral submissions Ms. Way-Patenaude repeated her complaint about the insinuation of Clean Harbor’s counsel at the Tribunal hearing, but she did not identify a specific point in the recordings where she alleges this insinuation was made. [ 41 ] In her written submission on this point, Ms.

Way-Patenaude refers to paragraph 30 of the Tribunal’s decision, which reads: In the Report, Dr. Coupland advises that Patenaude has requested his opinion on: 1. Whether the September 1 and 2, 2013 disciplinary actions and the subsequent team/shift separations were retaliatory in nature. 2. What were her psychiatric diagnosis or diagnoses and what was their relationship to the actions above? (emphasis added) [ 42 ] Read in context, the Tribunal’s reference to “their relationship” is not a reference to the relationship between Ms. Way- Patenaude and Dr.

Coupland; it is a reference to the relationship between the psychiatric diagnoses and the disciplinary actions and team/shift separations. The Tribunal made no reference in its decision to any relationship between Ms. Way-Patenaude and her psychiatrist other than the doctor-patient relationship. It is not necessary for me to determine whether Clean Harbors’ counsel made the insinuation which Ms. Way-Patenaude alleges he did. He made no such insinuation in his written and oral submissions before me. Any

insinuation that occurred at the hearing had no impact on the Tribunal’s decision. [ 43 ] The Tribunal made no palpable and overriding error on this point. F Cory Laliberte’s letter [ 44 ] The Tribunal, in paragraphs 42 to 45 of its reasons, considered a letter from Cory Laliberte, which Ms. Way-Patenaude submitted into evidence at the hearing. For the reasons set out in those paragraphs, the Tribunal decided to give no weight to the letter as evidence. One of the reasons given by the Tribunal is that Mr. Laliberte was not called as a witness. [ 45 ] Ms.

Way-Patenaude, in her written submission, and in her oral submissions before me, claims that the Tribunal chair told Ms. Way-Patenaude and Clean Harbor’s lawyer, in a pre-hearing telephone conference, that a letter from another employee would be all that would be required. Ms. Way-Patenaude stated in oral submissions that the telephone conference was recorded, and at tab F of her written submission, she refers to “Audio Teleconference with Tribunal Karen Scott”, but no audio recording of a pre-hearing telephone conference is in evidence before me.

I have no evidence before me that the Tribunal chair gave an assurance to Ms. Way-Patenaude that a letter from another employee would be accepted without question. I would require compelling evidence to make such a finding, because it is improbable that an administrative decision maker would give such a blanket assurance. In this case I have no evidence. [ 46 ] Clean Harbors objected to the admissibility of Mr. Laliberte’s letter because: • it was unsworn; • Mr.

Laliberte was not available for cross-examination; • the letter provided little detail; and • the letter was contradicted by other records. [ 47 ] The Tribunal decided not to give the letter any weight for the reasons advanced by Clean Harbors and because the prejudice to Clean Harbors in not being able to cross-examine Mr. Laliberte outweighed the letter’s limited probative value. Those reasons are well grounded in both the facts and the rules of evidence.

While the Tribunal is not bound by the rules of evidence, it is no error for it to consider and apply those rules as it sees fit, which is what the Tribunal did with respect to Mr. Laliberte’s letter. The Tribunal did not make a palpable and overriding error in doing so. G whether Clean Harbor’s retaliation caused Ms. Way-Patenaude to be unable to work [ 48 ] Ms. Way-Patenaude submits that the Tribunal’s finding at paragraph 118 of its decision is an error. That paragraph reads: Additionally, Dr.

Coupland’s assessment in January 2017 was that Patenaude would ultimately be fit to return to work, suggesting that her present and future inability to return to work results from some other cause or causes. [ 49 ] That one sentence paragraph, read by itself, is somewhat puzzling. However, reading the entire

section of the Tribunal’s decision relating to lost wages, which is paragraphs 114 to 119, the Tribunal’s findings are clear. Firstly, the evidence did not establish a causal link between Clean Harbors’ retaliation in August 2013 and Ms. Way-Patenaude’s inability to work from October 2014 onward, and secondly, Ms. Way-Patenaude did not suffered a loss of income because she received Workers’ Compensation Benefits roughly equal to her net income while working at Clean Harbors. The Tribunal’s finding on causation, that Clean Harbor’s retaliation did not cause Ms.

Way-Patenaude to become unable to work, is supported by the fact that Ms. Way-Patenaude continued to work for more than a year after the retaliation. The Tribunal did not make a palpable and overriding error on this point. H whether Ms. Way-Patenaude made submissions regarding damages [ 50 ] The Tribunal at paragraph 121 of its decision states that Ms. Way-Patenaude made no specific submissions regarding the appropriate quantum of damages. In her written submission, Ms.

Way-Patenaude acknowledges that she did not mention a monetary amount, but says she listed the types of damages in her submission to the Tribunal chair. Ms. Way-Patenaude has attached that document, dated January 9, 2020, as tab H to her written submission. On the last page, under the heading “CONCLUSION”, Ms. Way- Patenaude wrote: I Olga Way-Patenaude am seeking compensation for: - Psychological injury/mobbing cause in the work place - loss of past and future income and loss of all employment benefits - cost of judicial review [ 51 ] The Tribunal’s statement that Ms.

Way-Patenaude made no specific submissions regarding quantum is accurate. She described types of compensation, not specific amounts. Furthermore, the record does not include any documents containing evidence of any financial losses suffered by Ms. Way-Patenaude. The Tribunal committed no palpable and overriding error in stating that Ms. Way- Patenaude made no specific submissions to the Tribunal regarding quantum.

I the assessment of damages [ 52 ] In her written submission to me at tab I, Ms. Way-Patenaude submits that the $10,000 awarded by the Tribunal is insufficient. Ms. Way-Patenaude states that she is seeking compensation for:

(1) All my council fees that I had to pay out; Tisel Law Office, approximate amount of:$ 30,000.00 Hall, Van Campenhout & Pidde approximate amount of $20,000.00

(2) Psychological injury caused by employer & mobbing in the workplace: 100,000.00/year for 10 years.

(3) Judicial review; costs for the Judge who did the case, and costs for the Respondent. I have not received any invoices to date. ?

(4) General, Aggravated and Punitive damages.

(5) Dejardins insurance, short and long term disability income That I had to pay back after my WCB case was won, $64,500.00 [ 53 ] This is a different list than Ms. Way-Patenaude included in her submission to the Tribunal (quoted in paragraph 50, above), although there is some overlap. I will address each item in Ms. Way-Patenaude’s list at tab I of her written submission, in the same order. (1) counsel fees [ 54 ] Ms. Way-Patenaude did not have counsel on her retaliation complaint and she was self-represented on this appeal.

Based on that, I conclude that the approximately $50,000 in legal costs she claims (item (1) in her list) is her legal costs for her first human rights complaint, or her Workers’ Compensation claim, or both. While the Tribunal has a wide jurisdiction to grant relief under section 32(1)(b) (

v) of the Act , it is limited to: action the tribunal considers proper to place the person dealt with contrary to this Act in the position the person would have been in but for the contravention of this Act. [ 55 ] The “contravention of this Act” before the Tribunal was Clean Harbor’s retaliation against Ms. Way-Patenaude. The Tribunal was limited by the Act to remedies with a causal connection to that retaliation. [ 56 ] Based on the Tribunal’s finding that Ms. Way-Patenaude’s inability to work was not caused by Clean Harbors’ retaliation, it follows that Ms.

Way-Patenaude would have incurred the costs of her Workers’ Compensation claim even if Clean Harbors had not retaliated against her. Similarly, given the fact that Ms. Way-Patenaude’s first human rights complaint arose before Clean Harbors’ retaliation against her, it also follows that she would have incurred the legal costs of her first human rights complaint, even if Clean Harbors had not retaliated against her. [ 57 ] Ms. Way-Patenaude’s $50,000 in legal expenses was not caused by Clean Harbors’ retaliation against her.

For that reason, it was not a palpable and overriding error for the Tribunal to fail to include those expenses in its award in favour of Ms. Way-Patenaude. (2) lost income [ 58 ] In her written submission to me, Ms. Way-Patenaude seeks $100,000 per year for ten years for psychological injury. Based on her oral submissions, I understand this to be a claim for $100,000 per year in lost income. [ 59 ] The Tribunal held that an award for lost income was not appropriate because the evidence did not establish that Clean Harbors’ retaliation caused Ms. Way-Patenaude to be unable to work and because Ms.

Way-Patenaude did not suffer any loss of income (Tribunal decision at para. 114 – 119). As set out in paragraphs 48 and 49, above, the Tribunal’s finding regarding causation was not a palpable and overriding error. [ 60 ] In closing argument to the Tribunal, Ms. Way-Patenaude said she earned $100,000 per year and could have worked until age 75 or 78 (record: tab 1, day 3 at 11:00 am). After Ms. Way-Patenaude made that submission, the Tribunal Chair asked the following question of Ms.

Way-Patenaude and she gave the following answer: Chair: Is there a difference between what you are being paid on WCB and what you would have made if you worked at Clean Harbor? Ms. Way-Patenaude: Net pay, probably the same. But if tomorrow my psychiatrist said I’m fit for work, who’s going to hire me? I’m 67 years old. (record: tab 1, day 3 at 11:09 am) [ 61 ] Earlier in the hearing, Ms. Way-Patenaude testified that Workers’ Compensation was continuing her benefits, even though she had reached age 67 (record: tab 1, day 1 at 12:22 pm). [ 62 ] Given Ms.

Way-Patenaude’s submission to the Tribunal that her Workers’ Compensation benefits were the same as her income when working at Clean Harbors, her testimony that she received those benefits retroactive to October 8, 2014, when she went on leave from Clean Harbors, and her testimony that her Workers’ Compensation benefits continued right up to the date of the Tribunal hearing, with no fixed end date, the Tribunal’s finding at paragraph 119 of its decision that Ms. Way-Patenaude did not suffer any loss of income was not a palpable and overriding error.

[ 63 ] The two reasons given by the Tribunal for not awarding lost income, no causation and no lost income, were logical and based on Ms. Way-Patenaude’s evidence and submissions. The Tribunal committed no palpable and overriding error in declining to award Ms. Way-Patenaude anything for lost income. (3) cost of judicial review [ 64 ] Ms. Way-Patenaude clarified in oral submissions to me that item (3) in her list of compensation she is seeking is the cost of her judicial review which was dismissed by Richardson, J. on May 11, 2020. Ms.

Way-Patenaude had thought she might receive an invoice from the judge who heard the judicial review or from Clean Harbors. I explained to Ms. Way-Patenaude that she would not receive an invoice from the judge or the Court. In her written decision at paragraph 57 Richardson, J. invited that parties to make submissions to her regarding costs, within 30 days of her decision. Clean Harbors’ counsel advised that neither party made any submission to Richardson, J. regarding costs, and he advised that Clean Harbors has not instructed him to pursue costs of that judicial review.

Consequently, it appears that the judicial review heard and decided by Richardson, J. did not result in any costs for Ms. Way- Patenaude, except what she paid her own lawyer. In any event, whatever costs she incurred for that judicial review were not the result of Clean Harbors’ retaliation against her. Consequently, for the reasons set out in paragraphs 54 – 57, above, it was not a palpable and overriding error for the Tribunal to decline to award Ms. Way-Patenaude anything for those costs. (4) general, aggravated and punitive damages [ 65 ] Ms.

Way-Patenaude takes issue with the Tribunal’s assessment of damages, but does not specify any errors the Tribunal made. As set out in paragraph 24, above, the Tribunal considered the impact Clean Harbors’ retribution had on Ms. Way-Patenaude and the amounts of damages awarded in other cases, and set Ms. Way-Patenaude’s damages for injury to her dignity and self-respect at $10,000, which is within the range of damages awarded in other cases. The Tribunal did not specifically address aggravated or punitive damages, but Ms. Way-Patenaude had not specifically asked for aggravated or punitive damages.

The Tribunal made no palpable and overriding error in assessing Ms. Way-Patenaude’s damages at $10,000. (5) insurance repayment [ 66 ] Ms. Way-Patenaude received disability insurance benefits from Desjardin Insurance which she was required to repay when she received Workers’ Compensation. She submits that the Tribunal should have included that in its award. I disagree for three reasons. First, Ms. Way-Patenaude did not ask the Tribunal to include that in its award. Second, the requirement that Ms. Way-Patenaude repay Desjardin is governed by her disability insurance policy with Desjardin.

Third, there is no causal connection between Clean Harbors’ retribution and the disability insurance repayment, because even if there had been no retribution, Ms. Way-Patenaude would still have been required to repay Desjardin when she received Workers’ Compensation. The Tribunal committed no palpable and overriding error on this point. 7. Conclusion [ 67 ] I dismiss Ms. Way-Patenaude’s appeal. If the parties are unable to agree on costs of this appeal, costs may be spoken to no later than June 30, 2021. Heard on the 8 th day of April, 2021. Dated at the City of Edmonton, Alberta this 19 th day of April, 2021.

G.S. Dunlop J.C.Q.B.A. Appearances: Olga Way-Patenaude Self-Represented Litigant Melissa L. Luhtanen

Alberta Human Rights Commission for Human Rights Tribunal, Alberta Human Rights Commission Adrian Elmslie and Sarah Offredi Dentons Canada LLP for Clean Harbor Energy & Industrial Services Corp.