BLATCHFORD

Underpaying disabled workers seems wrong, but a human rights case in Ontario shows complications.

The case made headlines this week, and appeared on the surface the cruel tale of a heartless company which had paid ludicrously low wages to intellectually disabled employees for a decade and was now going to suffer the consequences.

The landmark ruling — it’s called Terri-Lynn Garrie and Janus Joan Inc. — came out of the Ontario Human Rights Tribunal late last month from vice-chair Ken Bhattacharjee.

But a closer read of the 33page decision in fact shows that if the company discriminated against Garrie, it did so with the consent of her parents and likely the complicity of the government.

As Bhattacharjee acknowledged in his decision ordering the company to pay Garrie about $187,000 in lost wages and compensation for the injury to her dignity, the story is much more complicated.

Garrie is the intellectually disabled applicant, now 45, one of as many as 10 disabled workers the firm employed. Janus Joan Inc. is what may be a defunct packaging company that was based in St. Catharines, Ont.

Bhattacharjee pronounced himself “quite troubled” by the evidence that emerged, particularly the fact that Garrie’s own mother, Marjorie Tibbs, had worked for the same firm — in a de facto supervisory capacity — and never demanded her daughter be better paid.

More importantly, it appears the Ontario Disability Support Program — another arm of the same provincial government which in effect prosecuted the company and now seeks to get money for Garrie — knew what was going on and was at least indirectly approving of the breaking of Ontario law.

The ODSP provides income and employment support for disabled people, and is run out of the ministry of community and social services. The human rights tribunal is a Crown agency of the Ontario government.

As the former owner of the company, Stacey Szuch, wrote in a belated formal response to the allegations, if her firm “discriminated against (Garrie), then (her) mother, the social services agencies, the applicant’s support worker and the Family Benefits/ODSP office were all co-discriminators.”

And as Bhattacharjee noted, “This may be true.”

At one time, Ontario law allowed employers, with consent of the “handicapped,” as the disabled were then called, to pay disabled people less than minimum wage, often in what were known as sheltered workshops. However, in 1986, the legislation was amended to conform with the Canadian Charter of Rights and Freedoms, and the practice was outlawed.

But reading between the lines of Bhattacharjee’s decision, it appears that Szuch, the company, the ODSP and the parents of disabled workers, including Garrie’s mother, with a nod and a wink had set in place a version of the old system, probably because the work made the disabled feel valued and offered them a bigger life beyond the walls of their parents’ homes.

Garrie and her mother told the tribunal that while Garrie and other disabled workers were paid between $1 and $1.25 an hour, the able-bodied who worked beside them, including the mother and another of her daughters who was also able-bodied, earned minimum wage.

The mother said she and her husband were uncomfortable with the pay differential, but didn’t complain because their daughter so enjoyed her work, the socializing it provided, and besides, Szuch “treated (Garrie) respectfully.”

Szuch, in her late response, elaborated on that, and said the disabled workers didn’t have to punch in, and were allowed to play cards and make crafts while ostensibly on the job. She also said Tibbs “became a supervisor and her duties included overseeing the trainees, including (her daughter), and giving the trainees their bi-weekly allowance/honorarium.”

She filed a further submission, a letter signed by Tibbs in which she described herself as the “floor supervisor” of a disabled worker who wanted to “pick and choose what job he would do.”

As Bhattacharjee noted, the letter was a knife that cut both ways: It showed the mother was in on the arrangement, but also that the disabled workers had some responsibilities. As he sharply concluded, “I cannot see how a person who is doing a simple manual labour job can be in ‘training’ or be called a ‘trainee’ for more than 10 years.”

But in her response, Szuch said the company never provided what’s called “supported employment” for disabled people, but rather offered “volunteer trainee” placements for them, with far fewer responsibilities, for which it paid them an honorarium. And, the response said, all of this was done on the up and up — with the honorariums duly declared to Garrie’s caseworker and the other disabled trainees’ caseworkers and to the ODSP.

Evidence of that was the fact that while the ODSP occasionally clawed back overpayments because of the honorarium, for the most part it was so modest that clawbacks weren’t common.

As Bhattacharjee wrote, “I find that the respondent (Szuch), likely with the agreement of the parents of workers with developmental disabilities, intentionally set the honorarium level just under the threshold for claw back of ODSP payments in order to maintain the receipt of such payments from the government.” He found that regardless of who approved the scheme, it was still unfair and discriminatory.

He ordered that the Ontario Human Rights Commission be sent a copy of his decision and investigate “how widespread” the twotiered system is and to make recommendations “to the Ontario government on how to rectify the situation.”

The irony is, the company may be out of business: Mindy Noble, the tribunal lawyer who represented Garrie, says she doesn’t know if, as the family alleged, Janus Joan Inc. continues to operate under a new name.

Stacey Szuch declared bankruptcy in February 2010 after, the bankruptcy trustee told Postmedia News, the company had ceased operations. It was for that reason Szuch was removed as a respondent.

(Garrie’s parents told the tribunal the company simply changed its name slightly, and was operating as recently as the spring of 2010. But there’s no listing for any firm with a similar name in St. Catharines now.)

As for Garrie, it appears from tribunal documents that aside from occasional seasonal jobs, she hasn’t worked since and has become reclusive and sad. It may be a Pyrrhic victory all around.