Garrie v. Janus Joan Inc., 2012 HRTO 1955

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Terri-Lynn Garrie

Applicant

-and-

Janus Joan Inc. and Stacey Szuch

Respondents

-and-

Ontario Human Rights Commission

Intervenor

RECONSIDERATION DECISION

Adjudicator: Michelle Flaherty, Alison Renton, Mary Truemner

Date: October 15, 2012

Citation: 2012 HRTO 1955

Indexed as: Garrie v. Janus Joan Inc.

APPEARANCES

Terri-Lynn Garrie, Applicant

M. Kate Stephenson and Mindy Noble, Counsel

Janus Joan Inc. and Stacey Szuch, Respondents

No one appearing

Ontario Human Rights Commission, Intervenor

Sunil Gurmakh, Counsel

1A panel of three Tribunal members was appointed to conduct an oral hearing and determine a Request for Reconsideration of the Tribunal’s Decision in this matter.

2At issue is the Tribunal’s determination that an ongoing wage differential between disabled and non-disabled employees is not a series of incidents for the purposes of determining the limitation period provided by section 34(1) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). In her Request for Reconsideration (“the Request”), the applicant challenges the Tribunal’s dismissal for delay of allegations of discrimination based on differential wages paid to the applicant from the late 1990s to October 2009.

3The Tribunal conducted an oral hearing on the Request on May 30, 2012, and we heard submissions from counsel for the applicant and from counsel for the intervenor (“the Commission”). The respondents did not participate in the hearing.

4For the reasons that follow, the Request is granted. We find that factors exist that outweigh the public interest in the finality of Tribunal decisions and that warrant a reconsideration of the Decision. Central among these factors are the inconsistencies that have emerged in the Tribunal’s application of the Divisional Court’s decision in Visic v. Ontario Human Rights Commission, 2008 CanLII 20993 (ON SCDC), [2008] O.J. No. 1768 (“Visic”). The reconsideration is appropriate in order to clarify the principles applicable to determining whether there has been a series of incidents.

overview

5On November 12, 2009, the applicant filed an Application under section 34 of Part IV of the Code, alleging discrimination with respect to employment because of disability. While the Application contained other allegations of discrimination, at the merits hearing, she pursued only the following allegations:

a. That her developmental disability was a factor in the respondents’ decision to terminate her employment; and

b. From the late 1990s until the termination of her employment in October 2009, the respondents paid her less than employees who did not have a developmental disability.

6The respondents claimed that the company had ceased to exist; they did not respond to the Application. As they had failed to file a Response, the respondents were deemed to have accepted all of the allegations in the Application: 2010 HRTO 1792.

7On May 26, 2011, the Tribunal held a merits hearing. The respondents did not participate. The Tribunal heard uncontradicted evidence from the applicant, her mother and her stepfather. In a final Decision issued on January 12, 2012 (“the Decision”), the Tribunal made a number of findings of facts: 2012 HRTO 68. The most material of these can be summarized as follows:

a. The applicant and other adults with developmental disabilities performed the same duties as the general labourers who did not have developmental disabilities, except for tasks that required fine skills;

b. the applicant and the other general labourers with developmental disabilities were paid a training honorarium of $1.00 per hour. After a few years, the honorarium was increased to $1.25 per hour. The general labourers who did not have developmental disabilities were paid minimum wage or higher;

c. the applicant generally worked 40 hours per week;

d. the applicant’s parents were uncomfortable with the pay differential, but did not complain because the applicant enjoyed her work and socializing with others, and the respondents treated her respectfully;

e. The applicant’s employment was terminated on October 26, 2009; and

f. within a month or so, the corporate respondent also terminated the employment of all of the other general labourers with developmental disabilities, but continued to employ general labourers who did not have developmental disabilities.

8In its Decision, the Tribunal found that the respondents discriminated against the applicant on the basis of disability when they terminated her employment. It awarded the applicant $15,000 for monetary compensation for the violation of her inherent right to be free from discrimination. While the applicant is seeking additional remedies, she is not disputing the award of $15,000 in her Request.

9Further, the Tribunal awarded the applicant monetary compensation for lost income for the period of October 26, 2009 to November 6, 2010 in the amount of $2,678.50. The Tribunal’s calculation of this amount is based on the applicant’s hourly wage of $1.25.

10The Tribunal dismissed the allegation that the respondents also discriminated against the applicant throughout the course of her employment by paying her less than employees who did not have developmental disabilities. It found that this allegation was out of time and beyond the mandatory one year limitation period in section 34(1) because the respondents’ ongoing practice of paying the applicant less than employees without developmental disabilities was not a continuing contravention within the meaning of section 34 of the Code.

11In her Request, the applicant argues that the Tribunal erred in finding that the ongoing wage differential is not a continuing contravention under section 34 of the Code. She also submits that the Tribunal breached her right to procedural fairness.

12In terms of remedy, the applicant argues that the Tribunal’s award of lost income should be corrected to reflect a non-discriminatory wage rate. The applicant argues that the hourly rate of $1.25 paid to her is discriminatory, that the allegation of discrimination because of a wage differential is timely, and that the Tribunal erred in applying this discriminatory hourly wage in its calculation of lost income. She submits that the Tribunal ought instead to have calculated lost wages, prior to and following the termination, based on minimum wage, and not the honorarium the applicant received.

13Finally, the applicant argues that she is entitled to further monetary compensation for loss of dignity in the amount of $25,000 because of the discriminatory and ongoing wage differential.

The request for reconsideration

14Pursuant to section 45.7 of the Code, any party to a proceeding before the Tribunal may request that it reconsider its decision. Rule 26.5 states that a reconsideration will not be granted unless the Tribunal is satisfied that:

a) there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or

b) the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or

c) the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or

d) other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

15Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case. In this regard, it is helpful to consider the Tribunal’s Practice Direction on Reconsideration, which states, in part:

Decisions of the Tribunal are generally considered final and are not subject to appeal. However, parties may request that the Tribunal reconsider a final decision it has made. Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the Tribunal. Generally, the Tribunal will only reconsider a decision where it finds that there are compelling and extraordinary circumstances for doing so and where these circumstances outweigh the public interest in the finality of orders and decisions.

16The applicant identifies Rules 26.5(c) and (d) as the basis for her Request. She submits that, although this is the first time the Tribunal has addressed the issue of an ongoing wage differential, the Decision is in conflict with a body of arbitral jurisprudence that has found the ongoing payment of wages to constitute an ongoing series of events. She argues also that the Decision has misapplied the Divisional Court’s decision in Visic, supra.

17The Commission argues that the Tribunal should reconsider its decision based on a further factor, that the Decision is inconsistent with Commission policy. While this factor is not set out in Rule 26.5, counsel for the Commission argues that the Tribunal should read this additional factor into the Rule because it is also linked with the public interest. With reference to the Commission’s “Policy and guidelines on disability and the duty to accommodate” (“the Policy”), counsel for the Commission argues that the policy (as well as the Tribunal’s own jurisprudence) requires that the Tribunal consider an applicant’s circumstances, including her disability, in assessing her ability to bring an Application within the limitation period.

18Counsel for the applicant and counsel for the Commission both argue that this Application is one of public importance and that factors exist that outweigh the public interest in the finality of Tribunal decisions. The Commission, in particular, points to the prevalence of “sheltered workshops” and the impact of a wage differential on people with developmental disabilities, notably on their self-esteem and their dignity. Both the applicant and the Commission argue that persons with developmental disabilities are among the most vulnerable people in society and that, in an employment context, they are often reticent to advocate for their rights because they feel fortunate to have a job and believe they may not be able to secure other employment.

19While counsel for the applicant readily acknowledges that there is value in the finality of Tribunal decisions, she submits that a number of factors exist that favour reconsideration in this case. She argues that, where the respondents have not participated in the proceeding, the Tribunal has given less weight to the issue of finality: Taranco v. Michedes, 2009 HRTO 1439 at para. 17.

20In Taranco, supra, the Tribunal initially dismissed a complaint without adjudicating its merits because the applicant and the Commission had failed to file written evidence as directed. The Commission subsequently filed a Request for Reconsideration. It stated that it had misunderstood the Tribunal’s direction to file evidence and requested reconsideration on that basis. At para. 17, the Tribunal wrote:

While the public interest in the finality of Tribunal decisions is an important interest, it is less compelling in this case because the respondent has not participated in any part of the Commission or Tribunal process in respect of the Complaint. This is not a situation where a respondent has defended a case against it at the Tribunal and won, only to be pulled back again to answer the same case.

21The applicant argues that this case is analogous to Taranco, supra, in the sense that, although this case has been adjudicated on its merits, the respondent did not participate in the proceedings. She also suggests that the Tribunal did not raise the issue of timeliness at or before the merits hearing, and she did not have an opportunity to make full submissions on timeliness. This procedural fairness issue, she argues, is a further factor that outweighs the public interest in the finality of Tribunal decisions.

analysis

Reconsideration of the Decision

22At issue is whether to reconsider the Tribunal’s Decision as to the application of the time limit in section 34(1) of the Code and, if so, whether it is appropriate to vary the compensation awarded for lost income before and after termination, and/or award further compensation for injury to dignity.

23There is a clear rationale for and obvious benefit to the Tribunal having the power to reconsider its own decisions. As the Tribunal explained in Sigrist and Carson v. London District Catholic School Board et. al., 2008 HRTO 34, the legitimacy of the Tribunal is enhanced by its ability and willingness to undo an unfair result or process, or correct a wrong.

24Importantly, however, the Tribunal must exercise this reconsideration power with care. As the Tribunal explained in Taranco, supra, at para. 15, the public interest in the finality of Tribunal decisions is important. It ensures that parties can consider Tribunal decisions final when they are made and that the Tribunal’s resources are used wisely and in a way that fulfills its mandate under the Code. It also ensures that the Tribunal’s decisions are not in a constant state of flux and can serve as an effective guide for members of the community as to their obligations under the Code.

25We believe that two factors exist in this case that favour reconsideration and outweigh the public interest in the finality of Tribunal decisions.

26First, the Tribunal has consistently stated that, in determining whether there has been a “series of incidents” within the meaning of section 34(1), it is bound by the legal test set down by the Divisional Court in Visic, supra. However, as we explain in more detail below, we believe that the Tribunal has not applied these principles in a consistent manner. One of the factors that makes reconsideration appropriate in this case is the need for guidance and clarification as to the appropriate application of the legal test in Visic, supra.

27Second, as we also explain in more detail below, we have come to the conclusion that the Visic, supra, principles were improperly applied in the Decision. Taken together, the importance of the timeliness issues considered in the Decision, the Tribunal’s inconsistent case law in this area, and the fact that the Decision did not correctly apply the legal principles are factors that outweigh the public interest in the finality of Tribunal decisions and favour reconsideration. For these reasons, we find that it is appropriate to reconsider the Decision pursuant to Rule 26.5(d).

28In concluding that reconsideration is appropriate, we make no findings concerning the applicant’s allegations of procedural unfairness. It is not necessary for us to do so given our decision to allow reconsideration on the timeliness issue. We find that, independent of these allegations, the circumstances of this case favour reconsideration and outweigh the public interest in the finality of Tribunal decisions. It is also unnecessary for us to consider the Commission’s argument that a further factor, inconsistency with Commission policy, should be read in to Rule 26.5.

legal principles concerning a “series of incidents”

29Section 34 of the Code states:

34.(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incidents to which the application relates; or

(b) if there was series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

30A review of the Tribunal’s jurisprudence under section 34(1) suggests that the following factors will generally be relevant to the Tribunal’s determination of whether or not allegations of discrimination are timely because they relate to a “series of incidents”:

a. What is the last alleged incident of discrimination to which the Application relates?

b. Do the allegations relate to a series of separate and independent incidents of discrimination or do they relate to the continuing effect of a single incident of discrimination?

c. What is the nature or character of the alleged discrimination and is it part of a pattern or series of incidents of a similar nature or character?

d. What is the temporal gap between alleged incidents of discrimination?

31The key issue in this matter is whether the alleged incident of discrimination (the wage differential) was a single act of alleged discrimination with continuing effects or whether it constitutes an ongoing series of incidents within the meaning of section 34(1). As counsel for the applicant points out, the Decision is the first time the Tribunal has had to determine whether an ongoing wage differential constitutes a continuing contravention of the Code.

32As we have indicated, the underlying principle from the Divisional Court’s decision in Visic, supra, where the Ontario Divisional Court adopted the test for a “continuing contravention” was applied by the Manitoba Court of Appeal in Manitoba v. Manitoba (Human Rights Commission) (1984), 1983 CanLII 2967 (MB CA), 25 Man. R. (2d) 117. While the Divisional Court in Visic, supra, only cited a portion of the quotation from the Manitoba Court of Appeal, for our purposes, we believe it is helpful to set out the entire quotation. Thus, the Manitoba Court of Appeal, at para. 19, wrote:

What emerges from all of the decisions [various American arbitration decisions that the Court of Appeal and the lower court reviewed] is that a continuing violation (or a continuing grievance, discrimination, offence or cause of action) is one that arises from a succession (or repetition) of separate violations (or separate acts, omissions, discriminations, offences or actions) of the same character (or of the same kind). That reasoning, in my view, should apply to the notion of the “continuing contravention” under the Act. To be a continuing contravention, there must be a succession or repetition of separate acts of discrimination of the same character. There must be present acts of discrimination, which could be considered as separate contraventions of the Act, and not merely one act of discrimination, which may have continuing effects or consequences.

33The Tribunal has had occasion to consider the application of section 34(1)(b), but its approach to the notion of a “series of incidents” is evolving. As the Tribunal’s jurisprudence shows, the distinction between a single act with continuing effects or a succession of separate acts or violations poses particular challenges. The distinction may be a subtle one and it can depend considerably on the circumstances of each case.

34In situations where there is an ongoing relationship, such as an employment relationship, it is sometimes difficult to determine when, as well as whether or not there are ongoing incidents of discrimination within that relationship. For example, the Tribunal has held that the date of the last incident is the date that an announcement about a future retirement or layoff was made, rather than the effective date of the retirement or layoff. See Degen v. Toronto (City), 2011 HRTO 319 at para. 6 and Woodbeck v. Thunder Bay (City), 2011 HRTO 666. In other situations, the Tribunal has held that the last incident of discrimination is the date that precedes the date of an announcement or the date of the actual cessation of employment rather than the date the employee announcement an intention to retire. See Lechet v. Casey House, 2011 HRTO 620.

35In accommodation situations, the Tribunal has held that it is not an ongoing incident of discrimination where an employer has made a particular decision about an applicant’s accommodation and the applicant tries repeatedly to have the employer reverse or change its position. See Hoblack v. St. Mary’s Cement, 2010 HRTO 1799 at para. 21 and Huo v. University of Western Ontario, 2012 HRTO 198 at para. 13. See also Heslin v. Univar Canada, 2010 HRTO 1885 at para. 6 pertaining to an applicant’s ongoing objection to the respondents’ decision to deny him sick benefits. On the other hand, where there is a material change and/or further information is provided, the employer’s continual denial to change its position may constitute a further alleged incident of discrimination. See Whyte v. Sudbury (City), 2011 HRTO 885 at paras. 10 to 12.

36In situations where the employment relationship ends and the applicant receives payments from his or her former employer in the form of severance monies, benefits or pension amounts, the Tribunal has generally held that the date of separation is the last incident of discrimination. These determinations are notwithstanding the applicant’s assertion that the discriminatory effects of the monetary payments and/or ongoing settlement discussions amount to further incidents of discrimination under section 34(1) of the Code. See Longtin v. Great West Life Assurance Company, 2011 HRTO 244 at paras. 18; Hiamey v. Conseil Scolaire de District Catholique Centre Sud, 2012 HRTO 301 at para. 24; and Bezaire v. Prestressed Systems, 2012 HRTO 777 at para. 10. However, in Lambe v. OMERS Administration, 2010 HRTO 2200, at para. 28, the Tribunal found that the last incident of discrimination was not the applicant’s termination date, but rather the date that he began to receive pension benefits, approximately four years after his termination and approximately six years before he filed his Application.

37In some instances regarding the provision of services, the distinction between an incident of discrimination and its continuing effect is even more difficult to draw. For example, in Clarke v. Canadian Blood Services, 2011 HRTO 411, the Tribunal held that the respondent’s ongoing refusal to accept blood donations from the applicant did not amount to a series of discrimination but rather arose from a single incident, the decision to ban her blood donations in 2002. In Mafinezam v. University of Toronto, 2010 HRTO 1495, the Tribunal held that an ongoing exclusion from a university pursuant to a trespass notice did not constitute a series of incidents within the meaning of section 34(1). It held instead that the issuance of the trespass notice was the last alleged incident of discrimination and that the ongoing exclusion of the applicant from campus was a continuing effect of this single incident of discrimination.

38In our view, while there have been different trends in the Tribunal’s developing application of Visic, supra, a number of non-exhaustive principles emerge, which help to identify the distinction between an incident of discrimination and its continuing effects.

39First, as the Divisional Court stated in Visic, supra, to establish that an occurrence is an incident of discrimination (as opposed to merely the continuing effects of an incident), a party must point to acts of alleged discrimination which could be considered as separate contraventions of the Code. At this stage of the inquiry, the focus is on whether the last conduct complained of could, on its own, support a finding of discrimination.

40Second, the Tribunal looks to when the allegedly discriminatory decision or act occurred and considers whether this is distinct from the timing of its consequences. This appears to be the step at which many of the subtleties play out. At this stage, the focus of the inquiry should be on whether the incidents in question involve fresh steps taken by the parties, each step giving rise to a separate alleged breach of the Code. This interpretation flows from the court’s language in Visic, supra. It also finds support in the arbitral jurisprudence, which has generally held that, even where the conduct complained of has continuing effects, there is no series of incidents unless the respondent takes a fresh step that could constitute a separate breach of the collective agreement. See Port Colbourne General Hospital (1986), 1986 CanLII 6715 (ON LA), 23 L.A.C. (3d) 323 (Burkett).

41Thus, allegations concerning a discrete, non-continuing violation (such as the imposition of discipline or the failure to promote or hire) may have ongoing consequences but, without more, do not amount to a series of incidents within the meaning of the Code because they do not involve any fresh steps taken past the initial alleged incident of discrimination. Similarly, without more, the fact that a respondent maintains a decision it has already taken does not involve a fresh step, nor does it give rise to a separate breach of the Code. See, for example, Longtin, supra.

42Third, the Tribunal has also considered when the consequences of the alleged discrimination are manifest for the applicant. For example, in cases where a respondent has terminated an applicant’s employment, the Tribunal has generally applied Visic, supra, to mean that the limitation period runs from the date the employment relationship ends: Longtin, supra. This is because, while a failure to provide a particular payment or benefit may be ongoing beyond the end of the employment relationship, the consequences of severing it are generally manifest as of the date of termination. In such cases, the Tribunal has not interpreted the ongoing failure to provide a benefit or payment upon termination as a series of fresh events. The termination of the employment relationship is the act which is discriminatory rather than the ongoing payments.

43There is generally a distinction between sums paid to an employee following the end of an employment relationship and ongoing issues regarding wages paid for work being performed. In the former case, as we have indicated, the alleged discrimination arises out of a decision to end the employment relationship and the consequences of that decision are generally manifest upon termination. Although the consequences of severing the employment relationship may be ongoing, neither party takes fresh steps and the employee’s entitlements are usually known to him or her at or about the time of termination. In contrast, while they may ultimately stem from an employment contract, issues of ongoing wage payment are not static. As we have already explained, they involve the fresh and ongoing step of exchanging labour for pay.

conclusions regarding the series of incidents

44In our view, the ongoing wage differential between the applicant and labourers who did not have a developmental disability is a series of incidents within the meaning of the Code. We find that the Decision misapplied Visic, supra. We believe that the Vice-chair erred in concluding that the ongoing practice of paying the applicant less than other employees who did not have developmental disabilities was a single act of alleged discrimination. Rather, it was an ongoing series of allegedly discriminatory payments for work performed on a series of occasions, continuing up to a date less than one year prior to the filing of the Application.

45Accordingly, applying the principles set out above, we find that the last incident of discrimination is the applicant’s last pay period.

46As we have indicated, the Decision finds that the applicant’s employment was terminated on October 26, 2009. She filed this Application on November 12, 2009. Having concluded that the ongoing wage differential constitutes a series of incidents within section 34(1) of the Code, we find that the applicant’s allegations in regard to the wage differential were filed within one year of the last incident of alleged discrimination and are therefore timely.

remedy

47Counsel for the applicant argues that the factual findings contained in the Tribunal’s Decision provide a sufficient and appropriate basis for a finding of discrimination in regards to the wage differential. She also argues that the Tribunal has the ability, as part of its reconsideration powers, to order a remedy pursuant to section 45.2 of the Code. She further submits that the Decision contains sufficient findings of fact to base an award of further remedies.

48We disagree. This panel did not hear the evidence at the merits hearing of this matter. It is not clear to us that the Decision, which dismissed the allegations concerning the wage differential because of timeliness, contains all of the necessary findings of fact to make a determination on the merits of the issue.

49In all of the circumstances, although we find that the allegations of discrimination regarding the wage differential are timely, we decline to reach any conclusion regarding the merits of these allegations or the appropriate remedy, should these allegations be proved.

other procedural matters

50Along with the Request for Reconsideration, counsel for the applicant filed a letter with the Tribunal indicating that, while the Application has been proceeding pursuant to section 34(1) of the Code, it may be more appropriate for it to continue under section 34(5) so that the applicant’s mother would become the applicant. At the hearing, counsel clarified that she was not specifically requesting that the Application be amended so as to proceed under section 34(5), but that she was raising issues as to the applicant’s ability to instruct counsel. Counsel states that, regardless of how the Application proceeds, the applicant has authorized her mother to instruct counsel on her behalf.

51Section 34(5) provides:

A person or organization, other than the Commission, may apply on behalf of another person to the Tribunal for an order under section 45.2 if the other person,

(a) would have been entitled to bring an application under subsection (1); and

(b) consents to the application.

52It is not entirely clear to us that the Tribunal would have the ability to amend the Application in this regard in the context of a Request for Reconsideration. In the circumstances of this case, where the applicant has not requested an amendment and where there appears to be no issue that the Application can properly proceed as filed, we find that it is not appropriate or necessary for us to decide the issue.

53Finally, we note that the personal respondent has filed documents with the Tribunal showing that she is bankrupt pursuant to the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3. At the hearing of the Request for Reconsideration, counsel for the applicant confirmed that the applicant does not wish to pursue the Request in respect of the personal respondent. The Tribunal therefore makes no order with respect to the personal respondent.

order

54For the reasons set out above, we find that it is appropriate to reconsider the Tribunal’s Decision. We find that the allegations of discrimination based on a wage differential between the applicant and non-disabled employees are a series of incidents within the meaning of section 34(1) of the Code and that they are timely.

55For the reasons set out above, we find that it is not appropriate for this panel to make any findings regarding the merits of allegations of discrimination or the remedy to be awarded should these allegations be proved.

56The Tribunal will provide further direction regarding the next step in this proceeding.