In the recent decision of Garrie v. Janus Joan Inc., the Ontario Human Rights Tribunal (the Tribunal), sitting with a panel of three members, exercised its rarely-used reconsideration powers and held that an employer's payment of differential wages to a disabled employee over many years constituted a "series of incidents" of discrimination. The finding permitted the employee to pursue allegations that her former employer was liable for its discriminatory wage rates for the entire period of her employment, allegations which were dismissed by the Tribunal in a previous decision.
The applicant, Ms. Garrie, was one of several developmentally disabled individuals who provided services for her former employer as a general labourer. For this service, Ms. Garrie received a "training honorarium" of $1.00 per hour (which was later increased to $1.25), despite the fact that other labourers without developmental disabilities received at least the minimum wage for substantially the same work.
After Ms. Garrie was terminated in later October 2009, she brought an application before the Tribunal alleging that her former employer had discriminated against her because (i) her disability played a role in her termination, and (ii) because of the lower wages she received during her employment as compared to non-disabled labourers.
The Tribunal agreed with Ms. Garrie with respect to her first allegation and awarded her $15,000 in damages. She also received $2,678.50 for lost income for the period stemming from the date of her termination to the date of her application, calculated based on her hourly wage of $1.25. With respect to Ms. Garrie's second allegation, however, the Tribunal found that such allegation related to the "ongoing effects of a single act of discrimination," and as such was barred by the one-year limitation period under the Human Rights Code (the Code).
Following the dismissal of her second allegation, Ms. Garrie brought a "reconsideration" request before the Tribunal. To support her request Ms. Garrie argued that the wage differential was not a single act of discrimination but was instead comprised of a "series of incidents" under the Code. Thus, she argued, the proper limitation period began to run only from her last pay period, which was within a year of the filing of her application. Her former employer did not participate at any stage of the proceeding.
Prior to delivering its decision on the limitation issue, the Tribunal noted the discretionary nature of its "reconsideration" power, a remedy that is rarely applied. It further noted that the reconsideration power should only be invoked in compelling and extraordinary circumstances, as there is a strong public interest in the finality of orders and decisions.
Despite this high threshold, however, the Tribunal was ultimately convinced it should exercise its reconsideration powers in favour of Ms. Garrie for two reasons. First, the Tribunal's leading limitations period case, Visic v. Ontario Human Rights Commission (2008), had not been applied in a consistent manner. Thus, there was a need to explain the correct application of the limitation period under the Code. Second, the combined effects of (a) the timeliness issues surrounding Ms. Garrie's application; (b) inconsistent Tribunal case law; and (c) the fact that Tribunal's decision dismissing her allegation had applied the legal principles incorrectly, collectively militated toward the exercise of the discretionary remedy.
The Tribunal canvassed relevant case law and identified the following principles to help distinguish between a series of discriminatory incidents versus a single incident with continuing effects:
- First, to establish that a particular occurrence is an incident of discrimination (as opposed to the continuing effects of an incident) the Tribunal must consider whether the last conduct complained of could, on its own, support a finding of discrimination.
- Second, the Tribunal must consider whether the incidents in question involve fresh steps taken by the parties with each step giving rise to a separate alleged breach of the Code. An allegation of a single violation (ie. a single discriminatory decision that is maintained over time), is insufficient for a finding of a series of incidents even if that violation has continuing effects.
- Third, it must be determined when the consequences of the alleged discrimination are "manifest" for the applicant. For example, where alleged discrimination arises out of a decision to terminate an employee, the consequences of that decision are generally clear at the moment of termination. In contrast, where alleged discrimination arises out of ongoing wage payments, the consequences of such decision are not manifest as long as there is an ongoing exchange of labour for pay.
Based on these principles, the Tribunal found that the employer's failure to pay Ms. Garrie an equivalent wage was a "series of incidents" within the meaning of the Code. In particular, it was held that this series of incidents spanned from the beginning of her employment to the last pay period before her termination. However, the Tribunal concluded that it did not have sufficient evidence to make any findings on the actual merits of the wage differential allegations or the appropriate remedy. Further directions regarding the next step in the proceeding are pending.
This case brings much-needed clarity to the question of what constitutes a "series of incidents" under the Code, both generally and in the specific context of allegations relating to wage differentials. The decision also importantly provides guidance as to the various factors the Tribunal will concern itself with when asked to exercise its reconsideration powers. While there is a strong public interest in the finality of human rights decisions, the Tribunal is willing to override this interest in certain circumstances, particularly where there the issues at stake are important and there is inconsistent case law on such issues.
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