Wednesday, May 23, 2012

Garrie v. Janus Joan

Here's another case that Professor Doorey posted about a few months ago, from the HRTO.

It's a very unsatisfying case.  Terri-Lynn Garrie has a developmental disability, and worked for Janus Joan Inc. from the late 90's to October 2009.  The employer didn't participate in the process, and the applicant was represented by her mother.

From the Tribunal's survey of the evidence, it appears that Janus Joan employed several general labourers.  Some of the general labourers had developmental disabilities, and others did not, but they all performed essentially the same job.  The ones without disabilities were paid at minimum wage or higher.  The ones with disabilities were compensated only by way of an 'honorarium' - at first equivalent to $1 per hour, and eventually increased to the rate of $1.25 per hour.  Garrie worked 40 hours per week.

Most likely, the employer thought it was doing these employees a favour by giving them something to keep them busy while paying them little enough as to not affect their ODSP benefits.

In October 2009, Janus Joan dismissed all of its employees with developmental disabilities.  Garrie made an application to the HRTO claiming that the wage rate and the dismissal were both discriminatory on the basis of disability.

The Tribunal concluded that Garrie was out of time to complain about the discriminatory wage rate (i.e. the application should have been brought within one year of the implementation of the discriminatory wage rate), and therefore didn't consider that allegation.  However, the dismissal was found to be discriminatory, and Garrie was awarded lost income benefits until she obtained replacement employment at Walmart in November 2010...but the damage award was at the rate of $50 per week, totaling $2,678.50.  (She also received compensation for injury to feelings, dignity, and self-respect regarding the discriminatory dismissal.)

This is controversial.  As Professor Doorey pointed out, awarding damages at a rate which blatantly disregards the minimum wage requirements of the Employment Standards Act seems deeply concerning.

I am of mixed minds on that point.  It is likely true that, but for the unlawful dismissal, she would have continued working at $1.25 per hour without complaint, making $50 per week.  Yet she would probably have been entitled to a remedy for that underpayment (i.e. from October 2009 to November 2010) through the employment standards complaint process, which was no longer available to her because of the dismissal.

But I am more concerned about the decision regarding timeliness.  The Tribunal looks at the implementation of the discriminatory wage as being the act complained of, which continued to have effects into the future but which did not keep the limitation period running.

I could understand this analysis in context of, say, denial of a promotion - a single discriminatory event with echoes into the future.  But wage discrimination is different, because there's a clear and contemporary comparison to be drawn.  The Code right is to 'equal treatment'.  Clearly, in 2009, Garrie was not being treated equally to her non-disabled co-workers.  I would argue that the fact that she agreed to an unfair contract 10 years earlier cannot create an estoppel barring her from asserting her rights to fair treatment on an ongoing basis.

So yes, a very unsatisfying decisions.

But there's a new development as well.  Apparently, Janus Joan Inc. is no longer in business, and now there's "Janus Joan (1996) Inc." instead.

One could see this coming in the original decision.  The respondent had sent a letter to the Tribunal indicating that the corporate respondent was "closed" (there was an individual respondent as well, but she was not found liable).  "The applicant's parents deny that the organizational respondent is closed, and state that the name has simply been changed from Janus Joan Inc. to Janus Joan Inc. with a number after the name."  They also led photographic evidence that the business was still operating and that the personal respondent's car was in the parking lot.

At a glance, it appears that the same principals are behind the new corporation, carrying on the same business.

The Applicant has now sought the assistance of the Human Rights Legal Support Centre, wisely, and they brought a Request to add a party, which the Tribunal has denied:  "the applicant seeks to make the proposed respondent liable on the basis of a hearing of which it had no notice and in which it had no opportunity to participate".  Which is, most likely, sort of true.

It sounds like Janus Joan made a risky play here, deciding not to participate and sheltering behind a changed name.  It isn't uncommon for a party to be incorrectly named at the HRTO, and usually it's clear enough who is being claimed against that the party will respond anyways and correct the name.  Cases involving actual new corporations aren't as common, and have trickier considerations.  Is the new corporation actually liable to the employee in a direct sense?  Often not - in order to be a successor employer, you actually need to employ the individual in question.  Consider the circumstance of an asset purchase, where ABC Inc. purchases all the assets of XYZ Inc. (per value), but doesn't hire an employee of XYZ.  The employee's contract is with XYZ, and he has no relationship with ABC nor a right to be hired by ABC.  (Assume, for the sake of the example, that ABC is not unionized.)  In such a case, the employee probably cannot successfully sue ABC, but has to sue XYZ instead.

There can be ways of getting around the problem, but not always, and they can be tricky.  It would be interesting to see Garrie's next move here, now that she is represented by competent counsel.


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

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