By Karena Walter, The Standard
Saturday, October 20, 2012
Overturning its previous decision, the Ontario Human Rights Tribunal has ruled that paying an intellectually disabled St. Catharines woman $1.25 an hour was allegedly ongoing discrimination every time she received a paycheque.
In what’s being called a precedent-setting ruling, the three-member panel found this week that the practice of paying Terri-Lynn Garrie less than employees who did not have developmental disabilities was not a single act of alleged discrimination.
Instead, the panel found it was an ongoing series of allegedly discriminatory payments for work performed on a series of occasions.
“It’s really important, not just for the Garrie family but for everybody making claims under Ontario’s Human Rights Code going forward,” said Jennifer Ramsay, communications and external relations co-ordinator for the Human Rights Legal Support Centre in Toronto.
“It’s precedent-setting. It’s extremely rare they even re-consider in the first place.”
The centre represented Garrie, now 43, at a reconsideration hearing in St. Catharines on May 30, where it argued a January human rights tribunal decision was incorrect in law.
The original decision upheld that Janus Joan Inc. of Dunlop Dr. discriminated against Garrie on the basis of disability when she was fired from the bottling company in 2009.
But that decision found an allegation the company discriminated against Garrie by paying her less than non-disabled employees was out of its jurisdiction because of the length of time that passed since Garrie received her first paycheque 10 years before.
The centre argued there was an ongoing violation every time Garrie was paid less than other workers. That would mean the complaint to the tribunal was within the code’s one-year limitation period because Garrie’s last paycheque fell within that timeframe.
“It was pretty clear to us that the discrimination continued every single time she received a paycheque and so we were very, very concerned about the original decision,” Ramsay said. “And so we are very, very pleased they put that to bed.
Ramsay said the tribunal rarely overturns its decisions.
“I believe it’s actually the most substantive reconsideration decision ever issued by the tribunal. It’s really a vital legal principle, the whole issue of what constitutes ongoing discrimination.”
No one from Janus Joan Inc. attended the original May 2011 hearing or the May 2012 reconsideration hearing.
The latest decision was released on Oct. 15. The tribunal declined to reach any conclusions about an appropriate remedy and did not provide a future hearing date.
Ramsay said the centre hopes the tribunal will convene another hearing to talk about an appropriate remedy, which it believes are lost wages from the time Garrie was hired by the company in the late 1990s, based on the difference between $1.25 an hour and minimum wage at the time.
Garrie’s family has said from the beginning they don’t believe she’ll actually see any money from the defunct company and went forward for the principle of the matter.
“This is all going to be on paper. I can’t see Terri-Lynn coming out of this with anything but it would be nice if she gets something,” her mother, Marjorie Tibbs, said. Tibbs called the decision “awesome.”
Garrie said she was excited about it Friday.
“When I heard the good news, I said, Yay.”