Law Times

Law Times • OcTOber 29, 2012 Continued from page 1 Award based on '19th century' wage Delay criticized NEWS tribunal. Those without disabili- ties 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 law, in my view, and contrary to the spirit of the code. Thankfully, the reconsideration panel agreed. 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 recon- sideration, an option reserved for "compelling and extraordi- nary circumstances for doing so and where these circumstances outweigh the public interest in the finality of orders and deci- sions. wage disparity wasn't a con- tinuing 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 in- come, they continued, should reflect a non-discriminatory wage rate. The company, which claims it Garrie's lawyers argued the " no longer exists, didn't have rep- resentation at the hearings. The personal respondent, former owner Stacey Szuch, is bankrupt. The Ontario Human Rights Commission supported Garrie's circumstances in assessing the ability to bring a complaint for- ward within the limitation pe- riod. "There is a clear rationale for s 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 cal- culation would have made more sense if the damages had related to what she ought to have earned rather than her ac- tual wage. "I'm at a loss to understand how a hu- Doorey is critical of the fact that " sociates 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 inci- dents doesn't include a case where a single instance of harassment may have ongoing repercussions. As a result, he says the decision in Dennis Buchanan of Swanick & As- " he says. Garrie v. Janus Joan Inc. will have con- sequences. "The tribunal' cision declining to hear the merits of whether or not it was actually a violation of the code received widespread criti- cism, especially since the tribunal went on to award income replacement dam- ages on a scale well below the minimum wage." The consequence, he adds, "would be s original de- man rights tribunal in 2012 could cal- culate lost wages damages for a disabled worker using a wage rate taken from the 19th century, that even clearly discriminatory employ- ment 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 discrimi- nation. While the case lays the foundation for others that may follow, there's little likeli- hood Garrie will see much money, if any. "The position of the respondents is " says Noble. LT that Janus Joan Inc. no longer exists, so there would likely be some difficulties in collecting, Continued from page 1 study, combined with the nebulous character of articling, would help entrench the two-stream ap- proach no matter what the results of the pilot are. "Once we build it, we will find it very diffi- debate on articling, a vigorous public discussion took place simultaneously online. Lawyers, law students, journalists, and others weighed in with their thoughts on the issues raised by the bench- ers. Some agreed that the profession should take time to consider the report while others argued it was time for a decision. Catherine McKenna, executive director of Ca- cult to tear it down," he said of the proposed law practice program. Despite Convocation' s decision to defer the nadian Lawyers Abroad, tweeted: "While @Law- SocietyLSUC can't delay forever, good decision to delay a decision on #articling until November. But Mitch Kowalski, a Toronto lawyer and " author, disagreed in a tweet. "So Bencher Raj [Anand] says that many stakeholders were part of stakeholders want yet another kick at the can? . . . Benchers were elected to make decisions and gov- ern — they should do so. the preparation of the report — and now — With files from Heather Gardiner " LT PAGE 5 EXPAND YOUR UNDERSTANDING OF MORTGAGE REMEDIES application for reconsideration. It suggested the decision flew in the face of policies requiring consideration of an applicant' CARSWELL eREFERENCE LIBRARY® MARRIOTT & DUNN: PRACTICE IN MORTGAGE REMEDIES IN ONTARIO, 5TH EDITION GOWLING LAFLEUR HENDERSON LLP, RECOVERY SERVICES GROUP and obvious benefit to the tribu- nal having the power to recon- sider its own decisions," the deci- sion by panel members Michelle Flaherty, Alison Renton, and Mary Truemner stated. "The legitimacy of the tri- bunal is enhanced by its ability and willingness to undo an un- fair result or process or correct a wrong." The panel went on to con- We find that the applicant's al- s last pay period. . . . Online or in print, Marriott & Dunn: Practice in Mortgage Remedies in Ontario, 5th Edition gives you immediate access to the leading case law in foreclosure, judicial sale, power of sale, redemption, actions on the covenant and related issues in Ontario. 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