Canada: Ontario Human Rights Tribunal Finds Paying Disabled Employee $1.25 An Hour Is Discrimination

In Garrie v Janus Joan Inc, the Human Rights Tribunal of Ontario (the "Tribunal") ordered Janus Joan Inc. (the "Company") to pay over $186,000 to Terri-Lynn Garrie, (the "Applicant") a developmentally disabled woman who was paid $1.25 an hour for years before her employment was terminated by the Company.

In the late 1990's, the Company employed the Applicant, and other individuals with developmental disabilities, as general labourers and paid them $1.00 per hour. After a few years, the wage increased to $1.25 per hour for full-time work. General labourers without disabilities were paid the statutory minimum wage for doing substantially the same work. The Company is an Ontario packaging company.

The Company acknowledged that it paid disabled employees less than non-disabled employees but asserted the disabled employees were "trainees" whose compensation amounted to an "honorarium". According to the Company, the disabled employees were allowed to work, look at magazines, play cards and games, make crafts or go bowling. The Company also emphasized that the pay scheme was devised in such a way that the Applicant continued receiving Ontario Disability Support Program payments from the Ontario government.

The Applicant's mother and sister were also Company employees. According to the Company, the Applicant's mother became a supervisor with duties that included overseeing the trainees, including the Applicant, as well as giving the trainees their honorarium. The Applicant's mother never demanded the Applicant receive a higher wage nor claimed discrimination until the Applicant's employment was terminated on October 26, 2009.

Tribunal Rules Company Violated Human Rights and Employment Standards Laws

The Tribunal rejected the Company's arguments and found the Company discriminated against the Applicant on the basis of disability by paying her less than those employees who did not have developmental disabilities, despite those employees performing substantially similar work. The Tribunal held that the employer's discriminatory pay practice was a blatant breach of the Ontario Employment Standards Act, 2000, and a serious violation of the Ontario Human Rights Code.

While the Tribunal was troubled by the fact that the Applicant's mother and sister worked for the Company, yet neither of them demanded that the Applicant be paid the same wage, the Tribunal concluded that the role of the Applicant's mother in the workplace did not change the fact that the Company was the employer and responsible for ensuring its practices were not discriminatory.

The Tribunal ordered the Company to pay the Applicant $142,124 in back-pay for lost income, $19,613 for lost income post-termination of employment, and $25,000 as general damages for the violation of the Applicant's inherent right to be free from discrimination as well as for injury to dignity, feelings and self-respect.

The Tribunal also recommended the Ontario Human Rights Commission determine how widespread the practice of paying developmentally disabled people less than minimum wage is within the province.

Employers Should Review Pay Practices to Ensure Compliance with Human Rights Legislation

While the facts in this case are shocking and unique, the Tribunal's decision demonstrates its willingness to award significant damage awards where an employer's conduct violates the Ontario Human Rights Code. Employers ought to be mindful of this decision and ensure that all their pay practices are in line with the Ontario Employment Standards Act, 2000 and the Ontario Human Rights Code. Failure to do so could expose employers to significant damage awards.

This publication is intended to provide our general comments on developments in the law. It is not intended to be a comprehensive review nor is it intended to provide legal advice. Readers should not act on information in the publication without first seeking specific advice on the particular matter. The firm will be pleased to provide additional details or discuss how this information is relevant to a specific situation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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