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Editorial: Shocking Discrimination Case Needs Sorting Out”

Monday, February 06, 2012 | Written by Glenn Kauth | |

There’s a shocking legal matter that needs sorting out involving a group of workers with developmental disabilities in St. Catharines, Ont., who, according to allegations put to the Human Rights Tribunal of Ontario, earned $1.25 an hour or less for 10 years.

Editorial Obiter by Glenn Kauth
The matter, Garrie v. Janus Joan, involved a St. Catharines company, Janus Joan Inc., that, starting in the late 1990s, employed several general labourers with developmental disabilities. It also had workers who didn’t have developmental disabilities.

According to the ruling, both groups of workers did the same work except for a few tasks that required fine skills such as labelling wine bottles.

Those with disabilities at first earned $1 an hour as a “training honorarium.” That later increased to $1.25 an hour.

The HRTO ruled last month that Janus Joan Inc. discriminated against Terri-Lynn Garrie by firing her in October 2009.

The discrimination, it found, stemmed from the fact that it terminated her and all of the other workers with disabilities within a month or so while continuing to employ those without a disability.

Garrie also sought redress for the fact that she received $1.25 an hour while the remaining workers got minimum wage. The company, which according to the ruling is reportedly closed, never responded to the allegations, so the HRTO didn’t have its side of the story.

But the tribunal admitted into evidence receipts showing how much the company paid Garrie. But noting that the alleged discriminatory acts had begun about 10 years ago, HRTO vice chairman Ken Bhattacharjee ruled the timeline to seek redress from the tribunal, despite the allegation that Garrie received $1.25 an hour up until her termination in October 2009, had passed the one-year window.

The case raises a number of questions. While Bhattacharjee awarded Garrie $15,000 for her discriminatory firing, her mother Marjorie Tibbs, who represented her daughter in the case, says the family is facing difficulties in collecting the money from Janus Joan Inc.

For its part, the HRTO says it sent the ruling to the respondent by mail and courier, but both were returned. In the meantime, Bhattacharjee noted in Garrie that there’s evidence that a new company with a similar name and a number added onto it is operating in St. Catharines. It’s not the same legal entity as Janus Joan Inc.

There are a number of legal issues, then, to sort out in this case:

  • Who’s responsible for paying Garrie the award? How can she collect it?
  • Given that Garrie has a developmental disability and, according to Tibbs, had few employment options when she took the job, there’s an argument that the HRTO or an appeal body could on some basis reconsider the one-year deadline for filing the case as it relates to her pay. After all, she allegedly received $1.25 an hour in October 2009 and filed her application on Nov. 12, 2009.
  • What actually happened? Given that, according to Tibbs, there were several people with disabilities who worked there for $1.25 an hour and as Janus Joan Inc. never responded to the allegations, there’s more to this case than the HRTO was able to get to. The HRTO, then, may have to reconsider the matter at some point.
  • What was the employment status of the people with disabilities? Can the company somehow justify paying them $1.25 an hour for several years on the basis that they were getting a “training honorarium?” Can Garrie or her colleagues make a case under the Employment Standards Act?

If the allegations, many of which the HRTO has already accepted, are true, this is a serious case that authorities and possibly a lawyer should be looking at.

Beyond the wrongdoing to Garrie held by the tribunal, the ruling notes the applicant continued to receive full payments under the Ontario Disability Support Program for the years she worked full time at Janus Joan Inc.

If that’s true, this is also a case of wrongdoing against taxpayers since the government would have reduced its ODSP payments had Garrie received the minimum wage.

Garrie, according to the ruling, reported her income to ODSP. How could ODSP staff not have looked at what she was earning and how many hours she worked?

Tibbs tells Law Times the family is now dealing with the Human Rights Legal Support Centre in order to find a way to collect the award. Let’s hope it, a government body or another lawyer can sort out this legal mess.

— Glenn Kauth

Reproduced from http://www.lawtimesnews.com/201202058913/Commentary/Editorial-Shocking-discrimination-case-needs-sorting-out