Terri-Lynn Garrie is photographed at her St. Catharines home on February 14, 2012. Garrie has a developmental disabiliy and went to the Human Rights Tribunal because she earrned $1.25 an hour or less for 10 years. She won her case against a St. Catharines company but may never see the money.
Credits: JULIE JOCSAK/QMI AGENCY
"This is one of these areas that there needs to be a message that this isn't OK," Kate Stephenson of the Human Rights Legal Support Centre said Wednesday.
"This is a pervasive area of ongoing discrimination and stereotyping."
A panel of three adjudicators convened in St. Catharines to hear arguments that a human rights decision back in January on Terri-Lynn Garrie's case was incorrect in law.
That decision upheld that Janus Joan Inc. discriminated against Garrie on the basis of disability when the long-time employee of the bottling company was fired in 2009.
But it found the allegation the company discriminated against Garrie by paying her less than non-disabled employees was out of its jurisdiction, because of the amount of time that passed since Garrie received her first paycheque was 10 years earlier.
Stephenson argued at Wednesday's reconsideration hearing there was an ongoing violation of Garrie's rights every time she was paid less than workers without disabilities. If so, that would mean the complaint to the tribunal would have been within the code's one-year limitation period if it counted back to her last paycheque.
No one from Janus Joan Inc. attended the proceeding, nor did they attend the original May 2011 hearing. The tribunal received communication by phone and letter stating the company was "closed."
Stephenson argued Wednesday Garrie should be compensated for each year going back to when she was first hired by the company.
The vulnerability of Garrie has to be considered, she argued.
Stephenson said the case deals with a person unlikely to file a discrimination application because she was so happy to have a job. Her family didn't complain because Garrie had a place to go to that she enjoyed.
But Stephenson argued that doesn't mean the employer should be let off the hook and the delay be used against Garrie when assessing damages.
"The nature of the discrimination here is blatant," Stephenson said, telling the panel a for-profit company made money off the discrimination, which put the case on the higher end of general damages.
Garrie had been awarded $15,000 for the discrimination violation.
The arguments were supported by the Ontario Human Rights Commission, which also asked the tribunal to reconsider the decision.
Commission lawyer Sunil Gurmukh told the panel the reconsideration is a matter of public importance.
He said the impact of wage discrimination on vulnerable people leads to systemic isolation and segregation from society.
On average, people with intellectual disabilities earn less than others, he said. In 2005, a report from the Canadian Association for Community Living found the average wage for a person with intellectual disabilities was $18,172. That compared to $29,669 for people with other types of disabilities, and $38,000 for people without disabilities.
While most reconsideration hearings are decided by an individual, the human rights tribunal uses panels for complex cases or ones where there is no established case law for the issues.
Garrie and her parents, Marjorie and Brian Tibbs, were optimistic after the hearing.
"The fact there were three people in the tribunal who came down shows the importance of this," Brian Tibbs said.
Garrie's mother said the family has no expectation Garrie will ever see any of the money. She collected Ontario Disability Support Payments at the time she worked for Janus Joan Inc., so any money awarded, if it was actually collected, would go back to the government.
The family is pushing forward with the case because of the principle of the matter and potential impact on other developmentally disabled people.
In addition to the $15,000, the tribunal had ordered Janus Joan Inc. to pay Garrie compensation for lost income after she was fired -- at the rate of $1.25 an hour. That award came to $2,678 for lost wages for the 53 1/2 weeks she was out of work before being hired for temporary Christmas help at a store.
Had she been compensated with minimum wage, the award would have been $23,012.
A written decision will be issued by the panel, but there is no timeline.