Thankfully, the Ontario Human Rights Tribunal has taken the unusual step of overturning one of its own decisions in the reconsideration decision in a case called Garrie v. Janus Joan. Here is the reconsideration decision.
I criticized the original decision when it was released back in January 2012. It was a head scratcher to me, though I received various comments from lawyers suggesting the decision was decided correctly, so obviously my view was not shared by all.
This was the case in which an employer (Janus) paid an employee with a disability (Garrie) $1 per hour (later increased to $1.25), while it paid non-disabled workers in the same position minimum wage or higher. This arrangement continued for years, until in October 2009, when Garrie was dismissed while non-disabled workers were kept on. In November 2009, she filed a Human Rights complaint alleging discrimination on the basis of disability in both the cause of dismissal and the discriminatory pay practise through the life of the employment.
She lost the claim based on discriminatory pay during her employment because the Tribunal ruled it was out of time, not filed within one year of the “incident”. The Tribunal’s theory was that in fact there had only been one breach of the Code, on the first pay cheque when Garrie was paid $1 back in the 1990s, and that every paycheque after that, for the next decade, constitutes simply a continuation of damages. Moreover, this was not a case in which section 34(1)(b) would apply, since an ongoing discriminatory pay practice is not a “series of incidents”.
I thought that made for very bad policy. I said then: “Under this approach, an employer is safe to discriminate in wages on the basis of disability forever, as long as the disabled person doesn’t know to file a complaint within the first year. Make sense to you?”
Thankfully, this is the part of the decision that has just been overturned. Read Section 34:
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.
The reconsideration panel ruled that ongoing payment of a discriminatory wage is a “series of incidents”, and not a single act of discrimination. As such, the last alleged breach took place on her last pay cheque, with the result that the complaint about her discriminatory pay was filed within the year time limit. The Tribunal said this:
… 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.
Surely that must be correct. Each time an employer issues a pay cheque as consideration for labour just recently performed, they are commiting a new act that mustn’t violate the Human Rights Code. Does anyone disagree with that conclusion and believe that the original panel is correct?
The result of the reconsideration decision is that the complaint about the $1 compensation for the period prior to the termination can now go forward. The Tribunal ruled it didn’t have enough evidence to decide the merits of that complaint, so I assume more litigation would be necessary to decide what a non-discriminatory wage should have been. This would presumably be based on what non-disabled workers were being paid, wouldn’t it? That was at least the minimum wage and sometimes more than that.
The reconsideration panel didn’t deal directly with what I thought was the most unusual part of the eariler decision. That was the ruling that damages for the discriminatory termination (loss of future wages) was to be calculated on the basis of the unlawful $1.25 per hour wage rate. I think that is just plain wrong, even if the wage complaint was untimely, for reasons I explained in my original post. But that part of the decision must surely now be wrong too. If the Tribunal rules that $1.25 wage rate was discriminatory, then damages for lost wages must be based on whatever non-discriminatory wage rate is found to be appropriate. Right?
So, now what do people think about this case?
Did the Original Panel get the decision correct, or did the Reconsideration Panel?
Should the damages for wrongful termination be based on the rate she was being paid ($1.25 per hour) or the non-discriminatory wage rate?