Law Times

PAGE 6 u EDITORIAL OBITER By Glenn Kauth Shocking discrimination case needs sorting out T here'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. 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 discrimina- tion, 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 allega- tions, 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 difficul- ties in collecting the money from Janus Joan Inc. For its part, the HRTO says it sent the ruling to the responde nt by mail and courier, but both were returned. In the meantime, Bhattacharjee noted in Garrie that there's evi- dence 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 disabil- ity 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 jus- tify paying them $1.25 an hour for several years on the basis that they were getting a "training hono- rarium?" 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 author- ities 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 COMMENT February 6, 2012 • Law Times L ike a huge ark filled with strange and varied animals of all sizes, Prime Minister Stephen Harper's omnibus crime bill floated into the Senate last week for final passage amid a wave of criticism from legal communities and ordinary citizens across the nation. Bill C-10 has sparked outrage in several provinces. Opposition has been particularly strong in Quebec. Strangely, having given up being able to defeat Harper and his people on content, the Quebec government has turned to waging a protracted fight over the financial cost. Harper is heading for a big fight over who pays for the new prisons and all of the things that come with putting another 5,000 inmates behind bars over the next few years. That means more cops, prosecutors, judges, legal aid, courtrooms, legal assistants, clerks, and even probation officers. Justice Minister Jean-Marc Fournier is leading the fight for the Quebec Law Times LT Masthead.indd 1 government. He has already won the battle over ideology. Harper's new law goes against everything Quebeckers believe in: crime prevention, rehabili- tation, social remedies, parole, and how to handle errant youth. But let's get back to money. Quebec officials have calculat- ed it'll cost the province $500 million to build the prisons that Harper wants to fill. That's the trick behind bill The Hill finds it particularly galling that all of this comes in a year when Nicholson is cutting his own budget at Justice Canada. But Fournier isn't tell- Richard Cleroux C-10. Harper passes his crime law, and the provinces pay for prisons. Meanwhile, Harper wipes his hands and takes the credit for the crackdown on crime. According to Fournier, federal Justice Minister Rob Nicholson never discussed the costs with him. Instead, Fournier says Nicholson told him it's the provinces' duty to pay for many of the costs. That's true as it says so in the Constitution. Fournier ing the whole story. There's a secret Plan B in Quebec that nobody talks about and that could save the province a bun- dle of money. Everybody in the Quebec legal community knows that if judges, police, prosecutors, and defence lawyers all get together, many accused can walk. Forget about minimum sentences. The system can simply pro- nounce people not guilty. Nothing forces a judge to find some- one guilty, not even Harper. There's no mandatory minimum if someone is not guilty or a prosecutor reduces the charge. In that scenario, kids won't have to go to prison under a mandatory minimum Thomson Reuters Canada Ltd. One Corporate Plaza, 2075 Kennedy Rd., Toronto, ON • M1T 3V4 Tel: 416-298-5141 • Fax: 416-649-7870 • www.lawtimesnews.com Group Publisher ................... Karen Lorimer Editorial Director ................... Gail J. Cohen Editor .............................. Glenn Kauth Staff Writer ....................... Kendyl Sebesta Staff Writer ................... Michael McKiernan Copy Editor ..................... Katia Caporiccio CaseLaw Editor .................. Adela Rodriguez Art Director .......................Alicia Adamson Account Co-ordinator ............... Catherine Giles Electronic Production Specialist ........Derek Welford Advertising Sales ............... Kimberlee Pascoe Sales Co-ordinator ................... Sandy Shutt ©2012 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without writ- ten permission. The opinions expressed in articles are not necessarily those of the pub- lisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times disclaims any war- ranty as to the accuracy, completeness or cur- rency of the contents of this publication and disclaims all liability in respect of the results of Law Times is printed on newsprint containing 25-30 per cent post- consumer recycled materials. Please recycle this newspaper. any action taken or not taken in reliance upon information in this publication. Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd., 2075 Kennedy Rd., Toronto, ON, M1T 3V4 • 416-298-5141 clb.lteditor@thomsonreuters.com CIRCULATIONS & SUBSCRIPTIONS $175.00 + HST per year in Canada (HST Reg. #R121351134) and $265.00 for foreign addresses. Single copies are $4.00 Circulation www.lawtimesnews.com 2/2/12 5:56 PM sentence for growing a couple of mari- juana plants. At the same time, rapists, serial killers, and terrorists will still go to jail, which is exactly where they're going right now. If the legal community doesn't gang up against Harper's law, there'll be a long con- stitutional fight against Ottawa, something like the HST battle that lasted more than a decade and finally ended last year with Harper handing over $3 billion to Quebec. Quebec is prepared to demand com- pensation year after year for each and every brick, stone, and metre of fencing it has to put into prison construction as a result of the bill. Sooner or later, Quebec will get the money to pay for Harper's prisons. But is that any way to run a federation? LT Richard Cleroux is a freelance reporter and columnist on Parliament Hill. His e-mail address is richardcleroux@rogers.com. inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times One Corpo- rate Plaza, 2075 Kennedy Rd. Toronto ON, M1T 3V4. Return postage guaranteed. Contact Ellen Alstein at ............416-649-9926 or fax: 416-649-7870 ellen.alstein@thomsonreuters.com ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 2075 Kennedy Rd., Toronto, ON, M1T 3V4 or call: Karen Lorimer ....................................647-288-8018 karen.lorimer@thomsonreuters.com Kimberlee Pascoe ..............................416-649-8875 kimberlee.pascoe@thomsonreuters.com Sandy Shutt ...... sandra.shutt@thomsonreuters.com Federal-provincial battle brewing over C-10

• Cover