Would You Wait 19 Years to Be Compensated?

An Alberta woman did. She waited 19 years to be compensated over gender discrimination by her employer in an Alberta Human Rights Tribunal decision rendered on September 2, 2010. Her relentless battle against Mobil Oil Canada to receive the same pay as a man in the same position won her a damage award of more than $650,000.

Delorie Walsh first filed a complaint in August 1991, while still employed. She claimed she suffered gender discrimination at the hands of her employer between August 1990 and August 1991; specifically that her employer treated her differently from her male counterparts in the areas of her salary and her job category. She was fired in February 1995 and filed a second complaint in August of that year for retaliation.

On December 16, 2005, the Alberta Human Rights Panel (now the tribunal) found that Walsh was indeed discriminated against based on her gender, contrary to the equal pay and terms of conditions of employment provisions of sections six and seven of the Human Rights, Citizenship and Multiculturalism Act (now referred to as the Alberta Human Rights Act). However, the panel found the company did not retaliate against her.

Walsh did not agree with the panel decision and appealed to the Court of Queen’s Bench, which overturned the panel’s decision regarding retaliation. On May 11, 2007, Justice Alan Macleod of Alberta’s Court of Queen’s Bench awarded Walsh:

• Compensation for any loss (income, expenses, etc.) arising out of the discrimination from the period two years before the complaint was filed up to the time of her termination
• Compensation for losses arising from her retaliation complaint under the Act, given the fact that Walsh would have remained with Mobil for the long term had the termination not occurred
• $58,500 to cover the legal costs of her battle and an extra $2,500 to cover her legal bills for her application for the costs

However, the employer went on to appeal, and it took some time before the employee got any back pay.

Mobil appealed this decision to the Alberta Court of Appeal. The Court dismissed the appeal with respect to the substantive issues of discrimination based on gender and retaliation, and allowed it with respect to the issues of damage directives and solicitor-client costs. The matter was remitted back to the Human Rights Tribunal to proceed with the remedy hearing. It took nearly two years for the tribunal to hear the case, but the hearing finally took place on seven days in May and June 2010. The tribunal finally rendered its decision on September 2. But the tribunal didn’t just have to decide who was the winner on each matter; it also had to decide how to award damages in a case that had taken so long to resolve and consider the effect of the delays on all parties.

The tribunal had to decide how to put the employee back where she would have been had it not been for the discrimination and retaliation. Based on previous cases, the tribunal felt common sense and reasonableness had to apply.

The tribunal decided:

19 years have lapsed since the filing of Ms. Walsh’s first complaint. The Tribunal has found that no party is at fault in respect of the delay. Nonetheless, common sense and reasonableness would suggest that some limit upon liability is required. As noted in Canada (Attorney General) v. Morgan [1991] F.C.J. No. 1001, at para. 4, (F.C.A.), the difficult exercise is the determination of a cut-off point. This is particularly true in this case where considerable time has lapsed between the discriminatory acts and the damages to be awarded.

Following Morgan … and carefully analyzing the evidence as presented, the Tribunal finds that 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.

The tribunal awarded Walsh $650,000 for the loss of income and pension benefits she incurred between August 1989 and December 2000, including $472,766 for loss of income and $139,154 for the loss of pension benefits.

What I find funny is that the tribunal awarded Walsh the amount of $10,000 for treatment/counselling to deal with the concluding of the case and its impact on her—simply put, for closure. However, counsel for Walsh and Mobil agreed that they would deal with the tribunal after this decision to come to a conclusion on the issues of pre-judgment interest and costs. So it’s not quite over!

Walsh, who was seeking $4 million in damages, was very disappointed and did not spot the humour. She said, “the money doesn’t make up for what she’s had to go through over the past 19 years.”

“If I say to myself, ‘OK, does this make me whole or put me back to where I would have been had I not been for the discrimination and retaliation?’ … I think it falls a bit short.”

Some interesting background on the case

In September 1984, Walsh became employed by Canada Superior Oil Ltd. as a junior map clerk. Her long range goal was to become a land agent in the field. At that point in time, her employer had no female “landmen” in the field. Traditionally, men were landmen, and women were restricted to the clerical area. In the summer of 1986, Walsh’s supervisor told her that “No damn woman is going to be a Surface Landman while I am working here”. Walsh decided to take the required exams to become a land agent anyway.

Canada Superior Oil Ltd. merged with Mobil Oil of Canada soon thereafter, and Walsh became a clerk in the Land Administration Department. In July 1987, Walsh earned her Interim Land Agent Licence. She then performed the functions of land agent for a year of articles, and in September 1987, she took over the job functions of a Senior Land Representative.

In 1988, Walsh was promoted to a Land Representative AA. However, she did not receive an increase in salary like the men in the same situation. In July 1988, Walsh earned her Permanent Land Licence. After going on maternity leave, Walsh was promoted to the position of lLand Representative. However, she believed that she was still not receiving a high enough salary for the work she was doing. In May 1990, she was promoted to Land Representative 1. She received good reviews and performed very well.

In December 1990, Walsh was offered a position as Landman. There was a three-month probation period, a commute, no company vehicle, no salary change and no promotion. Walsh believed that these conditions would not have been placed on a man in the same position. The prevailing attitude was that Walsh would have to prove herself before her position in the field would be confirmed. There was concern that she would not be able to handle negotiations with land owners, particularly First Nations on reserves.

Walsh raised her concerns to the Human Resources department, but in the end, she began commuting for the new position. She was permanently transferred in June 1991. She continued to earn a lower salary and remained in the lower salary group. Consequently, Walsh made a complaint to the Alberta Human Rights Commission.

In April 1992, there was a corporate reorganization within Mobil Oil of Canada, and Walsh was transferred to a different area with new supervisors. Both were engineers; thus Walsh was no longer reporting to people who were familiar with surface land work.

In 1993, there was a confidential meeting regarding Walsh’s human rights complaint. What happened in the meeting was not known. By 1994, one of her supervisors was gathering comments about Walsh’s performance from fellow employees. He said to Walsh that he was going to be “in her face” as far as her performance evaluation was concerned. Walsh was singled out and was subject to additional demands related to fulfilling work plans. She was of the opinion that this treatment was because she refused to withdraw her human rights complaint.

Walsh was terminated on February 21, 1995—the same day Walsh learned that the Alberta Human Rights Commission dismissed her 1991 complaint. Walsh felt that this was no coincidence, and brought a second human rights complaint arguing that there was a link between her first human rights complaint and her dismissal.

And now, 15 years later, you know the result. It makes me wonder how many female Landmen there are exploring the hinterlands of Alberta today.