Worker paid $1.25/hour gets 2nd chance to prove case

In a rare reversal, a panel of the Ontario Human Rights Tribunal has decided that a St. Catharines, Ont., employee with a disability who earned $1.25 per hour since the late 1990s did in fact file her complaint on time.

“This case is a victory for access to justice for those who may face wage discrimination,” says Barbara Hall, chief commissioner of the Ontario Human Rights Commission that acted as an intervener in the reconsideration proceedings at the tribunal.

“If you feel you’re the victim of wage discrimination, you don’t necessarily have to complain to the tribunal within a year of your first paycheque.”

In revisiting the case, a three-member panel found that the alleged discrimination against Terri-Lynn Garrie wasn’t a single act dating back to when she first began earning $1 per hour but had repeated with every pay period. As a result, the three-person panel determined that her complaint fell within the one-year limitation

It was the first time the tribunal had to determine whether an ongoing wage differential constitutes a continuing contravention of the Ontario Human Rights Code.

“It will affect other situations,” says Mindy Noble, co-counsel for Garrie along with Kate Stephenson of the Human Rights Legal Support Centre.

“It’s pretty rare to have a successful reconsideration and this is a pretty substantial one.”

Garrie was among several employees with disabilities who allegedly worked 40 hours per week for Janus Joan Inc. at $1 per hour starting in the late 1990s. Her pay later increased to $1.25 hourly while others without disabilities were allegedly earning minimum wage or more for essentially the same job.

It wasn’t until a month after the company fired her — and eventually all of the employees with disabilities — in October 2009 that she made her complaint to the tribunal. Those without disabilities remained on the job. In its original decision, the tribunal found that the firing itself was discriminatory and awarded her $15,000. It awarded another $2,678.50 for lost income based on her hourly rate of $1.25.

But it dismissed her claim that the company discriminated against her based on her pay. It found she had missed the one-year limitation period dating back to her original hiring day.

Garrie then went back to the tribunal with a request for reconsideration, an option reserved for “compelling and extraordinary circumstances for doing so and where these circumstances outweigh the public interest in the finality of orders and decisions.”

Garrie’s lawyers argued the wage disparity wasn’t a continuing contravention but an ongoing series of acts repeated with every paycheque. They submitted that the tribunal had breached her right to procedural fairness.

Her award for lost income, they continued, should reflect a non-discriminatory wage rate.

The company, which claims it no longer exists, didn’t have representation at the hearings. The personal respondent, former owner Stacey Szuch, is bankrupt.

The Ontario Human Rights Commission supported Garrie’s application for reconsideration. It suggested the decision flew in the face of policies requiring consideration of an applicant’s circumstances in assessing the ability to bring a complaint forward within the limitation period.

“There is a clear rationale for and obvious benefit to the tribunal having the power to reconsider its own decisions,” the decision by panel members Michelle Flaherty, Alison Renton, and Mary Truemner stated.

“The legitimacy of the tribunal is enhanced by its ability and willingness to undo an unfair result or process or correct a wrong.”

The panel went on to conclude: “We find that the last incident of discrimination is the applicant’s last pay period. . . . We find that the applicant’s allegations in regard to the wage differential were filed within one year of the last incident of alleged discrimination and are therefore timely.”

David Doorey, a professor of labour and employment law at York University, expressed disappointment with the initial ruling in a blog. He found the tribunal’s findings in relation to damages for future wages to be problematic.

“The original panel’s decision upheld a practice of paying $1 per hour to a disabled worker based on a very narrow and technical reading of the limitations clause. That interpretation was wrong in law, in my view, and contrary to the spirit of the code. Thankfully, the reconsideration panel agreed.”

Doorey is critical of the fact that the tribunal awarded Garrie back pay based on the wage of $1.25 per hour. If it weren’t for the disability, he suggests, Garrie would have received at least the minimum wage. So for Doorey, the calculation would have made more sense if the damages had related to what she ought to have earned rather than her actual wage.

“I’m at a loss to understand how a human rights tribunal in 2012 could calculate lost wages damages for a disabled worker using a wage rate taken from the 19th century,” he says.

Dennis Buchanan of Swanick & Associates notes the one-year limitation period and the question of a series of incidents have been an area where the tribunal has struggled in the past. He points to a decision by the Divisional Court that found that a series of incidents doesn’t include a case where a single instance of harassment may have ongoing repercussions.

As a result, he says the decision in Garrie v. Janus Joan Inc. will have consequences. “The tribunal’s original decision declining to hear the merits of whether or not it was actually a violation of the code received widespread criticism, especially since the tribunal went on to award income replacement damages on a scale well below the minimum wage.”

The consequence, he adds, “would be that even clearly discriminatory employment conditions could be maintained indefinitely provided that nobody makes a complaint in their first year of employment.”

While the panel determined the complaint was timely, the case is now going back to the original decision-maker for a hearing in St. Catharines. At that point, the tribunal will determine the merits of the allegations of discrimination.
While the case lays the foundation for others that may follow, there’s little likelihood Garrie will see much money, if any.

“The position of the respondents is that Janus Joan Inc. no longer exists, so there would likely be some difficulties in collecting,” says Noble.

For more, see "Shocking discrimination case needs sorting out."

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