N.S. Liquor Corp. to appeal human rights decision

Pearl Kelly’s government employer hopes to nullify last month’s human-rights decision in her favour with a challenge at this province’s highest court.

Grounds of appeal — almost a dozen alleged errors in law — are set out in a four-page document filed last Monday with the Nova Scotia Court of Appeal.

Kelly of Thorburn, Pictou County, won her discrimination case, which was based on her gender and disability, in March. The victory came after a protracted dispute with her employer, Nova Scotia Liquor Corp.

The longtime public servant thought the end of her seven-year fight was near after securing a decision that she felt totally vindicated her view and her work-related battle.

Although the human-rights ruling had a couple of loose ends that needed to be tied before Kelly could resume her duties, she said she was “completely shocked” when she learned last week of the liquor corporation’s decision to appeal. The legal challenge prolongs her ordeal, she said.

“Instead of turning around and dealing with the issues, they are more interested in fighting with me,” Kelly said in a telephone interview from her home.

The notice of appeal said both sides must file documents with the court, related to preliminary matters, before a date can be set for a hearing.

Kelly said she wonders how much public money the liquor corporation has spent fighting her case. And the meter is still running.

Last month, a ruling from a Nova Scotia Human Rights Commission board of inquiry said Kelly had been wronged by her bosses. The decision said she had been a victim of discrimination on two fronts: sexism and disability. Kelly has an anxiety disorder linked to stress.

The 116-page human-rights ruling from lawyer Lynn Connors, the inquiry’s adjudicator, did not include an award made to Kelly. The parties were to get together and finalize terms of a remedy. Also, Kelly would need her doctor’s OK before returning to work.

Those tasks are now on hold because the appellant is attempting to kill the judgment that Connors wrote.

According to the liquor corporation’s notice of appeal, the court “should allow the appeal, reverse the decision … and dismiss the human rights complaint” filed by Kelly in 2009.

The 43-year-old mother of three hasn’t worked since the year before she filed her grievance, when she went on a medical leave from her $65,000-a-year liquor store-management job.

Kelly was toiling in a male-dominated environment that included a male employee’s reference to her as “Pregnant Pearl.” The liquor corporation at the board of inquiry, which is a quasi-judicial public hearing, asserted the woman was not treated differently than male managers.

Among other things, the corporation’s notice of appeal alleges Connors “erred in law” by concluding the Pregnant Pearl remark, although it “imposed no ‘specific burden’ on Ms. Kelly, … nonetheless constituted discrimination on the basis of her sex.”

As well, the appeal notice alleges Connors erred “by finding that Ms. Kelly’s performance appraisal in 2006-2007 constituted discrimination on the basis of her sex.”

During the public hearing, her employer disputed Kelly’s story, saying there were questions surrounding her ability to lead others at work.

The appeal notice alleges an error in law was made when the adjudicator, Connors, admitted evidence as “expert testimony,” and relied on “hearsay” medical evidence “to conclude that Ms. Kelly was suffering from a mental disability as of May 28, 2008.”

Kelly’s lawyer, Barry Mason, told the board of inquiry in 2013 that Kelly heard sexist comments from liquor corporation co-workers and a supervisor. He said she had been treated unfairly compared with male managers at other outlets.

Mason said in an email it is “outrageous” that Kelly’s employer would delay implementation of the adjudicator’s findings, measures that will help protect women and the disabled in the workplace.

A liquor corporation spokesman declined comment, saying the matter is before the courts.

Click here to see original article written by Michael Lightstone, Herald News

April 27, 2015