Reconsideration Heard in Human Rights Decision Ordering Damages Based on $1.25 per Hour Wage Rate

The Human Rights Tribunal hear in Ontario just heard a reconsideration submission relating to a decision I discussed earlier this year.  Here is a newspaper story discussing the recon hearing.
This was the case where an employer paid a disabled worker $1.25 per hour for years, while paying non-disabled workers doing the same job minimum wage.  When the employee was dismissed, she filed a human rights complaints seeking past lost wages (owing to the failure to pay minimum wage) and damages for lost of income after the dismissal, the cause of which she claimed was related to her disability.
I have summarized the Tribunal’s decision, and my take on it,  in my earlier post (here).  So I won’t repeat myself.  See also the thoughtful comments posted by a variety of informed folks, voicing a range of views.  Essentially, the Tribunal made two findings:

1.       The complaint about lost past discriminatory wages was dismissed on the basis that she had been paid $1.25 per hour for many years and never complained.  She did not file her complaint within one year of the violation, and discriminatory pay practices are not ‘continuing violations”.  In other words, the Tribunal found there was one breach of the Code–the first time the discriminatory wage was paid some ten years earlier–and every time the employer paid the discriminatory wage thereafter was just a case of continuing damages flowing from that one time breach.  Therefore, if an employee doesn’t file a complaint within the first year of a discriminatory pay practice, the employer is free to keep discriminating in perpetuity, as far as the Code is concerned.

2.        Her dismissal was discriminatory and a breach of the Code. She was entitled to lost wages for the period of 53 weeks it took her to find new employment.  The wage rate upon which those lost wages are based is $1.25 per hour, and not the minimum wage required by the ESA and paid to other non-disabled employees.

What do you think of the decision?  A full three-person panel sat to hear this reconsideration, and they reserved.  It will be interesting to see how this decision turns out.  I will review it once it is published.