Law Times

LAW TIMES • MARCH 10, 2014 PAGE 3 www.lawtimesnews.com Ruling seeks systemic look at discriminatory pay for disabled n Ontario Human Rights Tribunal vice chair- man has asked for an investigation into the practice of paying people with disabilities below the minimum wage a er fi nding a St. Catharines, Ont., woman who earned $1 to $1.25 an hour for 10 years was a victim of discrimination. For a decade, Terri-Lynn Garrie earned $1 to $1.25 an hour for making and fi lling boxes at Janus Joan Inc. be- ginning in the late 1990s. Garrie was one of several other people with a developmental disability who worked 40 hours a week at that rate, according to a recent HRTO decision. Before the Feb. 28 ruling, Garrie's case took several twists as the tribunal initially said it couldn't deal with it because the application was "untimely" but later recon- sidered its decision. Garrie brought the application in 2009 a er the company fi red her and, eventually, all of the other employees with disabilities. In an earlier deci- sion, the tribunal found the fi ring itself was discrimina- tory since the company retained workers without dis- abilities. Although Janus Joan Inc., which has since gone out of business, didn't participate in the proceedings, for- mer owner Stacey Szuch sent documents to the tribunal claiming Garrie and others with disabilities who worked at the company were "trainees." As such, they received an honorarium and weren't employees. e tribunal rejected that argument, fi nding the jobs the workers with disabilities did were "substantially simi- lar" to the work other employees, who earned at least the minimum wage, performed at the time. It noted people couldn't possibility be trainees for 10 years. "I fi nd that there was a distinction based on disabil- ity because the respondent paid the applicant and other general labourers with developmental disabilities less than the general labourers who did not have develop- mental disabilities for performing substantially similar work solely because the former group of workers had developmen- tal disabilities," wrote HRTO vice chairman Ken Bhattacharjee. Although the tribunal awarded Garrie a total of $187,000 for dis- crimination, injury to dignity, and loss of employment, there's a chance she won't be able to collect the money as Janus Joan Inc. has since declared bankruptcy with operations now continuing un- der a diff erent name, according to Mindy Noble, co-counsel for Gar- rie along with Kate Stephenson of the Human Rights Legal Support Centre. But there's still value in the tribunal's fi nding, says Noble. "I think it would be unfortunate if she isn't able to receive the com- pensation but I think she can also feel that there's value in what she's done for herself and what's she's done for other people with devel- opmental disabilities in this prov- ince," she adds. During her time with the company, Garrie received benefi ts through the Ontario Disability Support Pro- gram. e company's pay scheme seems to have ac- counted for the government payments to the workers with disabilities, but that doesn't make the practice legal, according to Bhattacharjee. Garrie's mother and sister, who also worked at the company, earned the minimum wage. e mother, who helped Garrie bring the human rights application, said she wasn't aware at the time that the practice was illegal and noted she was simply happy that Garrie liked work- ing there. In the ruling, Bhattacharjee asked the Ontario Human Rights Commission to look into how common cases like this are and what would help stop the problem. " ere was no evidence before me about the extent to which simi- lar pay schemes exist in other em- ployment settings in Ontario, but given the sophisticated nature of the diff erential pay scheme in the case at hand, and the fact that the parents of workers with develop- mental disabilities appear to have agreed to this scheme, I believe it is appropriate to direct that a copy of this decision be delivered to the Ontario Human Rights Commis- sion, which has a duty pursuant to s. 29 of the [Human Rights] Code to protect the public inter- est by identifying and promoting the elimination of discriminatory practices in Ontario," wrote Bhat- tacharjee. Noble says she suspects similar practices exist but notes it's diffi cult to know how widespread the is- sue is since people with disabilities are sometimes reluctant to complain about diff erential wages since they have limited employment opportunities and don't want to risk losing the jobs they have. e case came down to the question of whether the work Garrie did was employment, says human rights and employment lawyer David Baker, who notes it's a ruling employers who hire interns might want to pay attention to as a similar logic may well apply under employment standards legislation. "It's an issue that aff ects not just people with disabili- ties but it also aff ects a broader group of younger workers who are facing problems in the workforce," he says. " e question of who is an employee is an issue that's actively under discussion at the moment." LT NEWS Henein Hutchison welcomes Danielle Robitaille as its newest partner. Sharp. Strategic. Tougher than steel. A dynamic litigator with extensive experience in criminal, disciplinary and regulatory hearings, Danielle will continue her practice at the firm, focused on all matters of defence. More experience. More defence. www.hhllp.ca O N LY T H E ST R O N G E ST J O I N . HeneinHutchison_LT_Mar10_14.indd 1 14-03-04 8:39 AM BY YAMRI TADDESE Law Times A While the applicant may have difficulty collecting, the ruling has value for people with disabilities more generally, says Mindy Noble.

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