In Garrie v. Janus Joan Inc., 2014 HRTO 272, the Human Rights Tribunal of Ontario considered the practice of employing individuals with developmental disabilities in exchange for honorariums set well below minimum wage and found the approach to be discriminatory under the Ontario Human Rights Code.

On the facts, the employer, with the consent of the guardians of the disabled workers, employed disabled workers and arranged for the payment of honorariums at a sufficiently low level in order to prevent the reduction of the employee’s Ontario Disability Support Plan (ODSP) payments.  The applicant worked as a general labourer for the employer for over a decade under such an arrangement, with an honorarium of between $1.00 and $1.25 per hour, while other general labourers were paid minimum wage.

In considering the complaint, the adjudicator noted that although the Employment Standards Act, 2000 historically provided a mechanism whereby an employer may be authorized to hire a “handicapped person” for below minimum wage, this provision was repealed in 1986 in order to ensure conformity with the Canadian Charter of Rights and Freedoms.  The adjudicator ultimately concluded that this practice of the employer amounted to discrimination. The practice clearly created a distinction – individuals with developmental disabilities were paid substantially less than general labourers for performing substantially similar work. The distinction was found to be discriminatory on the grounds that the setting of wages below minimum wage was an affront to an individual’s dignity, as an employee’s wage is bound up in views about the value of their labour and their self-worth. The practice of calling such employees “trainees”, despite their long tenure, and the failure to withhold EI premiums or CPP contributions for such employees were further bases contributing to the finding of discriminatory treatment.

Consequently, the adjudicator ordered that the employer pay compensation of over $160,000, less deductions representing the difference between the applicant’s pay and that of non-disabled labourers. The adjudicator further granted an award of $25,000 for injury to dignity, feelings and self-respect. This amount was based on the fact that underpaying workers on the basis of personal characteristics fell “closer to the high end of the spectrum with respect to seriousness” and was mitigated only by the fact that program was designed to avoid ODSP claw backs.

Finally, the adjudicator expressed concerns that similar schemes may be in place in other employment settings in Ontario, having received the impression from the evidence that this was not an isolated incident. As such, the adjudicator directed that a copy of the decision be forwarded to the Ontario Human Rights Commission in the hopes that it would investigate the prevalence of such schemes and take steps to rectify the issue.

This case highlights the risk for employers wherever distinctions are made between employees on the basis of a prohibited ground. Even if there are good intentions behind such distinctions, they may be viewed as discriminatory where they appear to result in adverse outcomes for workers. In this case, adverse differentiation was found even though the arrangement was (it appears) done with the consent of the workers’ care givers and families and apparently intended to provide meaningful work for persons that otherwise might not be able to participate in the workforce.  Such intentions were not enough to avoid a finding of discrimination under the Ontario Human Rights Code. Query whether this decision could have implications for other training schemes that may treat young workers differently from their older counterparts? It is too much of a leap to suggest a clear link, but it raises a note of caution whenever employers set up arrangements that treat people differently doing the same work, solely on the basis of a characteristic that may be considered a protected ground.