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Garrie v. Janus Joan: OHRT Assesses Lost Wages of Dismissed Disabled Worker Based on Hourly Rate of $1.25

OK, I’ve only scanned this decision quickly for now, so please read it yourself and see if I’m missing something obvious.

This is a decision  the CHRR Online people made me aware of that was just issued by the Ontario Human Rights Tribunal.  It is called Garrie v. Janus (this is an unformatted pdf version.  The Tribunal presumably will add the link to their decision database soon]. It involves a disabled worker who, firstly, is paid between $1 and $1.25 per hour over a period of years, and then secondly, is dismissed in October 2009 due to her disability.  Other non-disabled workers were paid at least the minimum wage, as required by the Employment Standards Act.  The worker files a human rights complaint alleging discrimination on the basis of disability for the wage discrimination and the dismissal (among other claims).

The Tribunal dismisses the complaint about wage discrimination on the basis of timeliness.  It finds that the employer’s practice of paying disabled workers only a buck an hour for a period of years was really only one act that continued for years and years:

In my view, the respondents’ ongoing practice of paying the applicant less than employees who did not have developmental disabilities was not a succession or repetition of separate acts of alleged discrimination of the same character. Rather, it was one act of alleged discrimination in the late 1990s, which had continuing effects until the applicant’s employment ended in October 2009. As such, the applicant’s allegation is approximately 10 years out of time.

Since section 34 requires complaints to be filed within a year of the offense (unless it is a continuing breach), her complaint about illegal pay is dismissed because it is nearly a decade since the first time the employer started discriminated against the applicant.  Under this approach, an employer is safe to discriminate in wages on the basis of disability, as long as the disabled person doesn’t know to file a complaint within the first year.  Make sense to you?

Well, hopefully she filed an Employment Standards Act complaint in time.  Or a wrongful dismissal lawsuit, under which she would have been entitled to both lost wages at the minimum wage and reasonable notice based on at least the minimum wage (and probably Honda damages for bad faith in the manner of dismissal).

The Tribunal then finds that the dismissal was a violation of the Code, and the complaint was filed within a year of the dismissal.  The Tribunal then turns to remedy.  It finds that $15,000 is appropriate for injury to dignity, feelings, and self-respect.  It also orders human rights training for the company’s officials.

Now, here is where the decision gets particularly controversial. The Tribunal turns to the issue of lost income.  The Tribunal begins as follows:

The applicant seeks an award of monetary compensation for lost income. The purpose of compensation for loss of income is to restore the applicant as far as is reasonably possible to the position that the applicant would have been in had the discriminatory acts not occurred.

So far, so good.  Not what position would she have been in but for her employer’s discriminatory treatment?  The Tribunal calculates the loss of income by looking at how long the claimant was out of work after her illegal dismissal.  She got a new job after 53 weeks, which the Tribunal thinks is reasonable given that she attempted to mitigate and given that it is expected that a person with developmental disabilities will have a more difficult time finding alternative employment.  So all that is left to do is calculate the income she should have received from the discriminating employer during that 53 week period if the employer had not discriminated against her, right?

So what is the income she would have received if there was no discrimination during that 53 week period?  Here is the Tribunal’s answer:

The applicant provided uncontradicted evidence that she lost $50 per week from October 26, 2009 (the date the organization respondent terminated her employment) to November 6, 2010 (the date that she started a new job at a Walmart store). As such, I find that her lost income was $2,678.50 ($50/week x 53.57 weeks).

Say what?  Her lost wages are calculated based on a wage rate of $1.25 per hour for a 40 hour week? Correct me if I’m wrong about this, but isn’t that wage rate a gross violation of the minimum wage requirement in the ESA, and also discrimination, since non-disabled workers were paid minimum wage?   If so, the Tribunal is affirming an illegal pay scheme.

To the commentators (who I thank for taking the time to comment on this interesting decision) who argue that the Tribunal must ignore the ESA because it has no jurisdiction over it, I have some doubts about that.  The Tribunal has power to determine “all questions of law that arise” in a proceeding before it (section 39), and it would seem an odd interpretation of that power to suggest the Tribunal must ignore the law of the province prohibiting employers from paying disabled workers $1 per hour.  It would mean, for instance, that the employee would need to first file an ESA complaint to get a ruling form the OLRB saying minimum wage is required, and only afterwards file a human rights complaint seeking a human rights remedy (lost wages for the 53 weeks after she was fired in contravention of the Code, reinstatement). Is that a practical approach? Any human rights experts what to chime in on that question?

But it really doesn’t matter in this case if the Tribunal can interpret the ESA.  Even if it is true that the Tribunal can’t take notice of the minimum wage, then just use a human rights argument: at the date she was dismissed, I think the evidence indicates that the employer was paying non-disabled workers doing the same job at least the minimum wage and her $1.25 per hour.  Surely that is discrimination on the basis of disability and a violation of the Code.  The Tribunal could have calculated the lost income based on minimum wage on that basis, couldn’t it?

Is there a law/policy in Ontario I’m unaware of that permits employers to pay disabled workers $1.25 per hour?  There is in other provinces, as I’ve noted before, so that is possible (though if so, I’d have thought the Tribunal would mention that a rate of $1.25 per hour for a disabled worker is lawful only because of that law). If there is no special exemption to the minimum wage for disabled workers, then this decision strikes me as absurd. Am I wrong?

Comments?

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8 Responses to Garrie v. Janus Joan: OHRT Assesses Lost Wages of Dismissed Disabled Worker Based on Hourly Rate of $1.25

  1. anon Reply

    January 20, 2012 at 3:51 pm

    Judicial Review – error in law – slam dunk.

    Well, it will be a slam dunk if there’s a lawyer out there who will run it on a retainer of $2,678.50. Hopefully a poverty law advocate will take this on.

  2. Dennis Buchanan Reply

    January 21, 2012 at 1:38 am

    Aside from the quasi-constitutional aspects of the Code, the Tribunal doesn’t have jurisdiction to interpret the ESA, to determine whether or not an employee is exempt from minimum wage requirements, etc., any more than the Tribunal has jurisdiction to determine whether or not an employer had just cause for termination, or whether or not an employer’s actions constitute constructive dismissal.

    Along the latter line, imagine a scenario where my salary is cut by 30% without notice (or other contractual entitlement), and I wrongly but in good faith complain that the cut was discriminatory on the basis of a prohibited ground, so my employer turns around and fires me. I can seek a remedy for the reprisal, and I’d get income replacement damages, but at my reduced salary rate – failing to establish that the pay cut was discriminatory, the Tribunal would be unable to conclude that the employer was not entitled to cut my pay, even though the common law may be reasonably clear on the point.

    I am far more concerned about the timeliness issue.

    I could understand the Tribunal’s logic working in a situation where somebody was denied a promotion for allegedly discriminatory reasons. The denial of the promotion is the discriminatory act, and notwithstanding that it has continuing effects, those effects aren’t going to indefinitely keep the clock going.

    But maintaining a policy of underpaying disabled workers would be different. The Code right is to equal treatment. Clearly, in 2009, the applicant was not being treated equally to her non-disabled co-workers. The fact that she may have agreed to inequitable contractual terms at the point of hire 10 years earlier cannot create an estoppel, barring her from asserting her rights against continued wage inequity.

    I think judicial review would be appropriate on that basis.

    Of course, if I’m right about the limitations argument, then the lost income award becomes inadequate by extension, without needing to reference the ESA.

  3. Ryan Reply

    January 21, 2012 at 3:28 am

    I’m not so sure. I think the Tribunal was right on this one. Remember that the wage discrimination complaint was out of time. So on a ‘make-whole’ remedies basis, the Tribunal was without jurisdiction to make an award which remedied the wage complaint. To slip it in at this point would be ultra vires.

    In other words, the question before the tribunal on damages was ‘but-for the company’s illegal dismissal’, not ‘but-for the company’s wage discrimination and illegal dismissal (because of the timeliness issue).

    You’ve got a valid complaint, but in my humble opinion the Tribunal was correct in law (query whether an administrative decision can be correct but not reasonable!!)

    (n.b. I haven’t even looked at the case)

  4. Dawna Kinnunen Reply

    January 25, 2012 at 12:03 am

    Not sure what the legislation is but I do know that in Ontario, agencies that work with developmentally disabled adults can use what is called “incentive wage” when placing a client in employment. This incentive wage is only used in situations where the client would have the ability to be competitively employed to create an employment opportunity. Similar to the sheltered work environment only in a real work setting ie the person make take 3 times longer to perform a task, therefore the wage is set lower, monitored by the employment worker of the agency. That being said this type of situation is being phased out of most of these agencies.

  5. Dawna Kinnunen Reply

    January 25, 2012 at 12:04 am

    Opps – should have said “not have the ability to work in competitive employment”!

  6. Elizabeth Reply

    January 26, 2012 at 11:25 pm

    As an employee with a disability who has faced discrimination, this ruling made my blood run cold.

    This needs to be challenged at a higher court.

    - The woman has a developmental disability – no leeway is granted for that. Did the chair expect her to know her rights and her access to justice and how to exercise those rights? This is unfair, and I can’t believe it is the intention of the law.

    - That award is tantamount to a license to discriminate. It is akin to a corporate parking ticket, and an insult to pwd.

    - ALL disabled employees were fired. What about their rights?

    - A remedy of an on-line course is worse than a joke. Where is the monitoring and accountability? These employers were doing this for 10 years and profiting at the expense of the human rights of our most vulnerable of citizens.

    - Had they been able to afford a lawyer the outcome would have been different. This only highlights the unfairness of not allowing human rights claimants access to lawyers. (for those unaware, human rights remedies do NOT pay for legal fees thereby in my opinion preventing access to justice).

    - The ruling is condoning the illegal pay practises. I feel they could have at ruled that had she not been fired she would have earned at the very least the minimum wage and compensated her for that amount when she was looking for a replacement position.

    What message does this send? Persons with Disabilities make up 15-20% of our population, and this is how we’re treated by the institutions whose very purpose is to enforce the laws meant to protect us?

    This is also in direct violation of the United Nations Convention on the Rights of Persons with Disabilities that Canada ratified in 2010.

    I am incensed.

  7. Dennis Buchanan Reply

    January 27, 2012 at 11:58 am

    Now that I’ve gone back and looked at it again, I might be wrong about the ESA issues, conflating the Tribunal’s jurisdiction to address a wrong with its jurisdiction to determine the scale of the remedy.

    The Tribunal’s approach uses the compensation principle in a ‘de facto’ kind of way. But for the discriminatory termination, she would have continued to earn her $1.25/hour wage. Probably true. So there’s a certain logic there.

    But the result is that a remedy falls between the cracks. She could have gone to the Ministry regarding the past minimum wage violations…but not about the forward-looking lost wages. At law, she’s probably entitled to lost income damages on the scale of the minimum wage, but my earlier interpretation would limit access to that remedy. The Tribunal awarded what she *would* have made but for the discriminatory termination, not what she was *entitled* to make.

    (Of course, I still do believe that the approach to the discriminatory wage rate was very, very wrong…which makes this whole analysis moot anyways on the facts.)

  8. Steven Reply

    January 31, 2012 at 2:09 pm

    The decision is now on the CanLII site:

    http://canlii.ca/t/fpm28

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