Human Rights Office

Queen's University
Search Type
Human Rights Office
Human Rights Office

Terri-Lynn Garrie v. Janus Joan Inc. 2014 HRTO 272 (CanLII)

Summary:

Terri-Lynn Garrie is a person with a developmental disability who worked with Janus Joan Inc. as a general labourer. Garrie began to work for Janus Joan Inc. in the late 1990s. The respondent terminated Garrie’s employment on October 26, 2009. It is alleged that for more than 10 years, the applicant and other persons with developmental disabilities worked as general labourers on the respondent’s work site, and were paid a training honorarium of $1.00 to 1.25 per hour, while general labourers who did not have developmental disabilities were paid the statutory minimum wage in Ontario. In this case it was found that the respondent discriminated against the applicant on the basis of disability by paying her less than employees who did not have developmental disabilities for performing substantially similar work.

Question(s) to be Determined:

1. Did the respondent, Janus Joan Inc. pay the applicant, Terri-Lynn Garrie and other persons with developmental disabilities, less than persons who did not have developmental disabilities for performing substantially similar work?

2. Did the respondent discriminate against the applicant on the basis of disability by paying her less than employees who did not have developmental disabilities for performing substantially similar work?

Findings:

1. Did the respondent, Janus Joan Inc. pay the applicant, Terri-Lynn Garrie and other persons with developmental disabilities, less than persons who did not have developmental disabilities for performing substantially similar work?

YES

2. Did the respondent discriminate against the applicant on the basis of disability by paying her less than employees who did not have developmental disabilities for performing substantially similar work?

YES

Reasoning:

1. In this case, the respondent stated that the differential pay amount between general labourers with developmental disabilities and general labourers without developmental disabilities was because the labourers in the former category were considered to be “trainees” or in “training”. This argument was not accepted. In response it was stated “I find that the respondent, likely with the agreement of the parents of workers with developmental disabilities, intentionally set the honorarium level just under the threshold for claw back of ODSP payments in order to maintain the receipt of such payments from the government. In other words, the respondent’s pay scheme contemplated that the workers with disabilities would be compensated for their work by receiving a training honorarium from the respondent and continuing to receive ODSP payments from the provincial government. However, this does not change the fundamental fact that the respondent paid the applicant and other general labourers with developmental disabilities less than the general labourers who did not have developmental disabilities for performing substantially similar work” (para 64 and 65). 

2. It was determined that the differential pay practices of Janus Joan Inc. discriminated against Garrie on the basis of disability. Three reasons were provided regarding this determination.

“First, the respondent’s decision to blatantly breach the ESA by paying the applicant and other general labourers with developmental disabilities below the minimum wage was, by its very nature, an affront to their dignity and a disadvantage. It is no coincidence, in my view, that workers who receive less than the statutory minimum wage tend to be members of disadvantaged groups in society, and often have Code ground-related personal characteristics, such as a disability or a lack of immigration status” (para 72).



“Second, the respondent’s practice of classifying and referring to the applicant and other general labourers with developmental disabilities as “trainees”, while referring to the general labourers who did not have developmental disabilities as “employees”, even though both groups performed substantially similar work, was a further affront to dignity and a further disadvantage. It is indisputable, in my view, that a “trainee” has a lower status than an “employee” in the workplace, particularly when they are performing substantially similar work” (para 76).  

“Third, in contrast to the pay of general labourers who did not have developmental disabilities, the respondent did not withhold EI premiums or CPP contributions from the bi-weekly pay of the applicant and other general labourers with developmental disabilities. As a consequence, the applicant was ineligible to receive EI after the respondent terminated her employment, and will receive lower CPP payments in her retirement. This is a significant disadvantage that was not imposed on the general labourers who did not have developmental disabilities” (para 77).

Remedies:

In addition to the remedies specific to Terri-Lynn Garrie, it was directed that copy a of the Decision be sent to the Ontario Human Rights Commission to further examine systemic issues concerning employment and pay practices of persons with developmental disabilities. 

1) The respondent shall pay the applicant $142,124, less statutory deductions, as monetary compensation for lost income during her employment, and $19,613.87, less any amount claimed for November 6-26, 2010, and less statutory deductions, as monetary compensation for lost income post-termination of employment. Pre-judgment and post-judgment interest are payable, as set out above, in accordance with the CJA.

2) The respondent shall remit the statutory deductions related to income tax, EI and CPP to the federal government, and issue T4s and a Record of Employment to the applicant. 

3) The respondent shall pay the applicant $25,000 as monetary compensation for the violation of her inherent right to be free from discrimination and for injury to dignity, feelings and self-respect. Post- judgment interest is payable, as set out above, in accordance with the CJA.

4) Effective immediately, the respondent shall cease and desist from paying workers with developmental disabilities less than Ontario’s minimum wage, and from paying workers with developmental disabilities less than persons who do not have developmental disabilities for performing substantially similar work.

5) Within 60 days of the date of this Decision, the respondent shall retain an expert in disability-related discrimination to provide training to the respondent’s principals and staff on how to integrate persons with developmental disabilities into the workplace in compliance with the Code.