By Linda McKay-Panos
This blog article originally appeared in LawNow Vol. 40(5) and is reprinted with permission.
From time to time, concerns are expressed about the length of time human rights complaints take to resolve. There are some circumstances where resolution of these cases does seem to take too long. Unfortunately, those who criticize the existence of human rights commissions often take these occasional delayed cases as opportunities to add fuel to their calls for elimination. However, an examination of the circumstances surrounding the delays, which only occur in a small fraction of human rights cases, helps to assess possible alternative solutions.
In one recent example, the CBC reported on the case of Kathleen Viner (Richard Woodbury, CBC News, “Zellers human rights allegation resolved 4 years after complainant dies” online: http://www.cbc.ca/beta/news/canada/nova-scotia/kathleen-viner-zellers-racial-discrimination-human-rights-1.3502475). In 2009, Ms. Viner complained to the Nova Scotia Human Rights Commission that Zellers had racially discriminated against her in 2008, when it unfairly accused her of stealing. The 78-year-old was detained by security and searched, even though she had a receipt for the rug she bought. Ms. Viner died in 2011 (at age of 81), before the Commission had heard her case. The case was able to proceedbased on statements Ms. Viner had made before she died. When Zellers was sold in 2011, and all Zellers stores in Canada were closed. Zellers’ parent company, Hudson’s Bay Company, continued as respondent. Hudson’s Bay did not believe that the Zellers clerks discriminated against Ms. Viner, but agreed to develop and launch a program to teach Nova Scotia-based floorwalkers how to deal appropriately with customers and about racial profiling. The matter was settled in 2016, more than four years after Ms. Viner had died. Thus, although she had experienced humiliation and hurt, these could not be addressed (Viner v Hudson Bay Company, 2012 CanLII 98528 (NS HRC).
One of the most startling examples of an excessive delay took place in Alberta in the Delorie Walsh case…Before this case and others like it are used to argue for the abolishment of human rights commissions for being inefficient, it is important to look at several facts. Consulting the 2014-2015 Annual Report of the Alberta Human Rights Commission (“AHRC”), we can see that approximately 50% of complaints were resolved within one year. Of 1,395 complaints submitted to the office, the Commission accepted 853 as meeting the requirements: falling within AHRC jurisdiction; having reasonable grounds; being made within one year as required; and meeting other requirements . Ninety-four (94) percent of the complaints received were dealt with by the complaint resolution process. This means that they were resolved through conciliation or investigation, dismissed or discontinued, or abandoned or withdrawn by the complainant. Only six per cent were handled by the Commission’s tribunal process. This relatively small percentage of unresolved complaints is largely responsible for the outcry that the process takes too long.
One of the most startling examples of an excessive delay took place in Alberta in the Delorie Walsh case (Walsh v Mobil Oil Canada, 2008 ABCA 268, online: https://www.canlii.org/en/ab/abca/doc/2008/2008abca268/2008abca268.pdf). Delorie Walsh was hired by Canadian Superior Oil (which later merged with Mobil Oil) in 1984 as a junior map clerk. Having a B.Sc. in Agriculture, Ms. Walsh wished to be a land agent. At that time, there had never been a female land agent working for the company. Walsh pursued her interest in becoming a land agent and obtained a licence. She also moved into a clerical position in the land department and later became a land representative. Walsh received good performance appraisals, yet encountered a number of obstacles in becoming a land representative. These barriers related to her being a woman in a field dominated by men. Although Walsh’s responsibilities increased significantly, her designation and pay scale did not increase with her responsibilities.
In December 1990, Walsh was offered a field position in Olds, subject to a three-month probation period. She was required to commute on her own time, using her own vehicle and did not receive any salary change. Other male land agents were not required to undergo probation, nor were they required to commute using their own vehicle. When Walsh expressed her concerns to her supervisors, their responses led her to conclude that if she did not accept the offer with the different conditions, her employment at Mobil would be jeopardized. Eventually, Walsh was assigned a company vehicle to commute to Olds and was transferred to the Olds office.
Before this case and others like it are used to argue for the abolishment of human rights commissions for being inefficient, it is important to look at several facts.In August 1991, Walsh filed a human rights complaint with the (then) Alberta Human Rights and Citizenship Commission (“Commission”) against Mobil, alleging discrimination based on gender under the equal pay for equal work provision. She alleged that, despite her abilities, she had been prevented from advancing, and regardless of the degree of responsibility she was given relative to men doing similar work, she did not receive appropriate employment designations and compensation. Mobil responded denying that there was discrimination.
In the meantime, Walsh was transferred to Wimborne/Lone Pine in 1992 and was promoted to Land Representative II in March 1993. Her workload was very heavy and her performance appraisals indicated that this might have affected her follow-through with administrative tasks. At the time, she was reporting to three supervisors.
In early January 1994, Walsh was involved in a car accident while working and suffered severe whiplash. At the same time, relations with one of her supervisors, McNamara, were strained and he had said to her that the human rights complaint was at least in part responsible. On September 6, 1994, Walsh received a performance appraisal indicating that she needed improvement. Also, she was told that if her performance issues continued she would be dismissed. She was also assigned to one supervisor, North, who developed for her a three-month action plan, which included reading Seven Habits of Highly Effective People and conducting surveys of landowners and co-workers about her performance. On September 9, 1994, the Commission sent a letter indicating that its investigator had recommended that the complaint be dismissed.
Walsh’s action plan progress was regularly monitored by North, and the plan records indicate that Walsh met a number of the targets. Nevertheless, North focused on Walsh’s completion of surveys, lists of activities, time sheets and communication/network problems. The plan was revised in November 1994, and several additional expectations were added. Walsh was notified that she was on written notice about serious performance problems regarding her ability to work as part of a team and her ability to follow through. North continued to be dissatisfied with Walsh’s performance in early 1995, and although Walsh attempted to clarify his expectations, contest his criticism and justify her actions, North recommended that Walsh be terminated, and she was indeed terminated on February 21, 1995. On the same day, Walsh was notified by the Commission that her human rights complaint was being dismissed.
On August 15, 1995, Walsh filed a second human rights complaint against Mobil, alleging it had retaliated against her for making the human rights complaint. Both the original human rights complaint and the retaliation complaint were referred by the Commission to a one-person human rights panel for a hearing.
The Panel in Delorie Walsh v Mobil Oil Walsh v Mobil Oil Canada, 2005 AHRC 13 (CanLII), held that Walsh had not been paid commensurate with her male counterparts and ordered that she receive damages to compensate for the differential in salary between August 1990 and 1991. Damages were to be determined in a later proceeding. The Panel found that the behaviour of the supervisors did not amount to gender discrimination. The Panel also found there was no retaliation and dismissed Walsh’s second complaint.
Walsh appealed the Panel’s decisions regarding the limitation period, equal pay, gender discrimination, retaliation and procedural fairness. The Court of Queen’s Bench (per Macleod J.) allowed the appeal and held that the conduct of the supervisors was indeed discriminatory and that retaliation had occurred. The complaint was remitted back to the Panel for reconsideration and for the assessment of damages.
Mobil appealed Macleod J.’s decision. The Alberta Court of Appeal held that Walsh was discriminated against on the basis of gender and that Mobil had retaliated against Walsh for making a human rights complaint.
After several additional tribunal and court proceedings, taking place over 22 years, Mobil was found to have discriminated against Delorie Walsh and to have retaliated against her for complaining by terminating her employment. This did not end the matter, however, as the parties continued with litigation over related matters such as retaliation, damages and costs. The last reported decision dealt with the issue of remedies (see: Walsh v Mobil Oil Canada (Exxmobil Canada Ltd.), 2013 ABCA 238 https://www.canlii.org/en/ab/abca/doc/2013/2013abca238/2013abca238.pdf).
It must be remembered that the delay in cases where the Commission has determined that there is merit to the complaint is often due to the parties utilizing the court system to make applications on various substantive and procedural issues (e.g., costs), and, if they have the resources to appeal, resolution of the matter is delayed significantly. Often, it takes several years to resolve matters heard before the court. One does not hear many arguments that we should abolish the court system for this reason. Perhaps the parties in human rights complaint matters, particularly respondents, should be criticized for refusing to settle matters in a reasonable way rather than delaying the case to the point where some of the complainants become completely disheartened and give up.