The Ontario Human Rights Tribunal, after a period of some confusion, has now sorted out that its a violation of the Human Rights Code for an employer to pay a disabled worker about $1 per hour for years when non-disabled workers performing similar work are paid the minimum wage. Here is a Toronto Star piece from today describing the recent decision.
The case is called Garrie v. Janus Joan. Here is the latest decision, issued a couple of weeks ago. It finds that the pay practice of the employer was discriminatory, and it orders the employer to pay $142,124 dollars to compensate for the difference between the wage paid the employee and the minimum wage during the period of employment, and an additional amount close to $19,000 for wages payable during the period of notice of termination. An additional $25,000 was ordered for injury to dignity.
Decision on Timeliness: Each New Payment of Wages is a New Incident
I have reviewed the facts and issues in this case in earlier posts, so I’ll keep this post short. When the original decision came down in 2012,
The OHRT Reverses Itself on Discrimination Decision
I was dumbfounded. It ruled that the employee’s complaint about illegal wages was untimely as it had not been filed within one year of the offence. The reasoning was this: the employer first began paying the $1 per hour rate some time in the 1990s, and the complaint was not filed until after the employee was terminated in 2009; the Tribunal ruled that this amounted to one alleged breach of the Code the first time the employee was paid in the 1990s, with “continuing effects” every time afterward that the employee was paid. Therefore, applying this reasoning, the Tribunal ruled that the complaint about unpaid wages was “approximately 10 years out of time”.
Thankfully, the Tribunal reversed that ruling in a Reconsideration decision issued later in 2012. The Reconsideration Panel found that each new payment of wages constitutes a new exchange of labour for pay and a potentially new offence. Therefore, the complaint about lost wages was not out of time. The matter was referred back to the Tribunal to be decided on its merits. Was paying the disabled worker $1 to $1.25 per hour discriminatory? In the newest decision, the Tribunal ruled that it was for the very obvious reason that the worker was paid this rate only because she was disabled.
Decision on Assessing Damages for the Illegal Payment of $1 per Hour to a Disabled Worker
The other odd part of the original Tribunal ruling, in my opinion, involved its decision to award damages for a discriminatory termination of the employee. The finding that the employee was terminated due to her disability was sensible and correct. However, in assessing the lost wages damages flowing from that illegal termination, the Tribunal used the wage rate of $1.25 per hour that the worker was being paid at the time of employment, and not the minimum wage that was being paid non-disabled workers. For a 53 week period of damages, the Tribunal ruled the employee lost only $2,678, based on a rate of $50 per week (or $1.25 per hour)! That decision implicitly approved of the discriminatory pay practice. This issue was not addressed directly in the reconsideration decision.
However, when the matter was referred back to the original panel, that panel reversed itself on this point, without explanation. Presumably, the reasoning in the earlier award was that since the illegal wage complaint was untimely, the tribunal was bound to accept whatever wage the employee was actually being paid when she was terminated, no matter who patently illegal that wage rate was. Some lawyers I know even agreed with that rationale. For my part, I thought it was nonsense. The Tribunal was within its power to assess damages for lost wages due to a discriminatory termination by applying a non-discriminatory wage rate. In the newest decision, the Tribunal ruled that all of the lost wages damages must be calculated based on the minimum wage, and not the illegal $1 to $1.25 per hour rate the worker had been paid. That calculated out to damages of closer to $19,000.
Anyhow, the matter appears to be done now and justice has been served. Sort of. In fact, the employer is out of business and its unclear if the employee will ever receive her damages.
Issues for Discussion
At various times, Canadian provinces have permitted employers to pay disabled workers less than able-bodied workers. This was the case in Ontario between 1947 and 1986. Manitoba only recently repealed a provision allowing discriminatory wage rates. Why do you think governments permitted employers to pay disabled workers less?
Do you think that prohibiting employers from paying disabled workers less will lead to fewer jobs for disabled workers?
Do you think that the Ontario Tribunal reached the correct decision in the latest decision in the Garrie case? If you were representing the employer, can you think of an argument you would make on Reconsideration or judicial review?