In Garrie v. Janus Joan Inc. 2014 HRTO, the Ontario Human Rights Tribunal (“Tribunal”) severely criticized an employer that was paying an employee with a developmental disability $1.25 an hour and it ordered a significant loss of wages and damage award against it.
In this case, the employer had a practice of hiring individuals who were developmentally challenged to perform the work of “general labourers”. In order to avoid any clawback to the individual’s Ontario Disability Support Payments (“ODSP”) from the provincial government, the company called this individual a “Trainee” and paid her a bi-weekly honorarium in the range of $80 to $100 bi-weekly which worked out to $1 to $1.25 an hour.
The Applicant was developmentally challenged and had worked for the Respondent from January 1, 1999 until she was terminated on October 22, 2009. The Applicant alleged that she should have been paid the same rate of pay as other general labourers because they were doing substantially the same work and the only reason she was not getting this rate of pay was because of her disability.
The Tribunal concluded that the Respondent had breached the Ontario Human Rights Code by paying the Applicant a rate of pay less than what other employees were paid for doing work that was substantially the same. The Tribunal held that the likely reason the Respondent paid such a low rate was to avoid any ODSP clawback. Despite the fact the Applicant continued to receive her ODSP payments, the Tribunal held this practice was discriminatory for the for the following reasons:
- It was blatantly discriminatory to pay an employee with a disability less than the prescribed minimum standards outlined in the Ontario Employment Standards Act.
- Referring to the Applicant as a “trainee” even though she was doing the work of a “general labourer” perpetuated stereotypes.
- Because regular wages were not paid, no CPP and EI was ever remitted which would cause the Applicant a significant disadvantage.
- Even if the parents of the Applicant and the ODSP knew of this practice, it is nonetheless discriminatory because the Code establishes a floor that no one can contract out of.
In terms of remedy, the Tribunal was clearly alarmed by this case and the fact that this practice might be widespread amongst other employers and industries. Consequently, the Tribunal ordered the following:
- Lost income in the amount of $142,124.00 which is what the Applicant should have earned in minimum wage for the duration of her employment. The Respondent was ordered to remit any taxes, EI and CPP and it was ordered to issue any T4s and ROE’s for this period.
- $20,000.00 in lost income between the Applicant’s termination date and the date she secured alternate employment.
- $25,000.00 in damages for injury to dignity and self-worth.
- The Tribunal remitted this matter to the Ontario Human Rights Commission to investigate whether there was a wider practice of paying individuals with a developmental disability a wage less than the applicable minimum standards.
This decision is a stern warning from the Tribunal to treat employees with disabilities with respect and to pay them the rate of pay to which they are entitled. Unfortunately, the case does not shed light on whether the Applicant will have any clawback/repayment obligations with the ODSP or what impact this will have on those payments that were already made.
Simon Heath LL.B, M.I.R.
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