For Pearl Kelly, the new year brings with it an old battle.
The Pictou County woman’s fight, for what she considers a just resolution to her years-long human-rights case against the provincial crown corporation that employed her, is continuing in 2018 in Nova Scotia’s top court.
A court document filed on her behalf in Halifax on Dec. 28, 2017, says Kelly intends to appeal adjudicator Lynn Connors’s decision, released Dec. 4, that covers “terms of (a) settlement, which were allegedly negotiated” to help put her gender-related complaint against the Nova Scotia Liquor Corp. to bed.
No hearing date has been set for the matter to be heard at the Nova Scotia Court of Appeal.
The disputed agreement totalling $550,000 was divided into two settlements: a separation component worth $342,000 and a human-rights component in the amount of $208,000.
Kelly said recently the $550,000 deal “wasn’t binding,” adding, she agreed to it “under pressure” after a mediation session between the parties in 2016. A veteran lawyer acted as the mediator.
That pressure came in the form of a bank representative wielding the threat of foreclosure on the home of the married mother of three.
“He sat (in his car) at the end of my driveway,” said Kelly, “and waited to serve my husband papers.” She said her children, who were the only ones home at the time, called the police to alert them about the vehicle parked in front of their house.
Kelly said the foreclosure threat came the night before mediation.
The NSLC “believed that the parties reached a binding settlement at the mediation,” said Connors’s Dec. 4 ruling, which has been filed with the court. A liquor corporation spokeswoman told the Halifax Examiner the NSLC is “committed” to reaching a resolution with Kelly.
Kelly said $137,500 of the total has been earmarked for legal fees. Also, one of the organizations that was to ratify the deal — the union representing her when she was subjected to discrimination in the workplace — hasn’t done so, according to the adjudicator’s decision.
“It is evident from the evidence before me, which is not contested, that the (Nova Scotia Government and General Employees Union) has not signed off on the severance . . . portion of the agreement,” Connors, a Kentville lawyer, said in her ruling.
The decision said it’s clear “there was a settlement reached in relation to the human rights complaint.” (That’s a reference to the $208,000 agreement, Kelly said. But she’s disputing that.)
“There was no agreement,” Kelly said.
Connors was the board of inquiry chair who had ruled years ago that the liquor corporation violated Kelly’s human rights when she was working. Kelly was referred to by male colleagues as “Pregnant Pearl,” and experienced other sexism.
After days of sworn testimony at a public hearing in Stellarton, which began in the summer of 2013, Connors concluded that Kelly, a 46-year-old Thorburn resident, had been mistreated while working for the liquor corporation in Pictou County.
The corporation has publicly disputed Kelly’s gender-discrimination story, saying she wasn’t treated differently than male co-workers, and it wanted the complaint dismissed.
Her employer appealed Connors’s human-rights ruling, delivered in 2015, but lost that fight.
Kelly hasn’t worked since 2008, when she went on a medical leave from her then-$65,000-a-year liquor store-management job. When her troubles started, she was in her 30s and expecting to advance during her career with the NSLC.
“I’ve lost opportunity. I lost 10 years of my life,” Kelly said.
In 2009, she filed a complaint with the province’s human rights commission against the liquor corporation, saying she’d been discriminated against because she’s a woman and due to her disability, an anxiety disorder.
Connors’s 116-page human-rights judgment from the board of inquiry didn’t include a remedy, as that was for the parties to work out through negotiation. Now that that’s been done, Kelly is alleging Connors’s Dec. 4 decision contains errors in law.
Among other things, her notice of appeal filed by her New Glasgow lawyer, Julie MacPhee, alleges a mistake was made when the decision “found that the parties reached two separate settlement agreements at the mediation, despite also finding that the parties intended that there be only one global settlement.”
Kelly knows people will look at the bottom-line figure and probably criticize her for not accepting the deal.
“That whole $550,000 has to be wiped out,” she said. Kelly said her goal is to have negotiators go back to the drawing board. “I’d be lucky if I saw $100,000 of that — and I’d have no job after that,” she said.
“I see us going back to the table and negotiating and arguing my lost wages, my legal fees, my pension, my benefits (and) all the expenses that I’ve lost,” Kelly said. “That’s how I see it. That’s what needs to be done.”
Regarding other money matters, Kelly still wants to know how much the government-run liquor corporation has spent on legal fees hooked to her enduring case. A spokeswoman for the corporation has said that dollar figure would be provided once Kelly’s battle is no longer subject to court proceedings.
Looking back, not only does Kelly have bad memories of how the NSGEU handled her situation (“The union hasn’t handled my case,” she said. “They’ve done absolutely nothing.”), she has strong words for the liquor corporation, too.
Even though the corporation was found to have victimized Kelly, in terms of violating her human rights, she said no one from the NSLC has ever acknowledged wrongdoing.
“I got nothing,” said Kelly. “I got absolutely nothing. I didn’t even get: ‘I’m sorry this happened to you. I’m sorry we messed up.’ Nothing.”
Beverley Ware, a spokeswoman for the corporation, sent the Examiner a statement via email:
We respect the human rights process and have actively participated every step of the way. We have been committed to working toward a successful resolution with Ms. Kelly.
She has indicated she plans to appeal the global settlement that had been reached before the human rights board of inquiry. With this case still before the courts, we cannot comment further at this point.
A statement from the Nova Scotia Government and General Employees Union, received via email on Jan. 5, said the following:
Ms. Kelly is an NSGEU member, and as such we have a statutory duty to represent her. We are not party to the agreement you mention and do not know why she has not signed off.
The union is not one of four respondents named in Kelly’s Dec. 28 notice of appeal. And it’s not listed as a respondent in Connors’s 23-page decision about the settlements.
But the NSGEU is referred to multiple times in her Dec. 4 ruling, including under the heading: The Separation Settlement.
“The NSGEU wants to know why I haven’t signed off,” Kelly said. “Because I’m not signing a document that I consider to be a lie and illegal.”
Michael Lightstone is a freelance reporter living in Dartmouth.