After 9 years, litigation between the Association of Ontario Midwives and the Ministry of Health regarding discrimination on the basis of gender and pay equity has finally come to a close.
Background
Midwifery became a regulated profession in Ontario effective January 1, 1994.
The initial compensation framework was determined by a working group who conducted an evaluation of the skill, effort, responsibility, and working conditions of midwives in comparison to other health care professions in 1993. The committee considered in particular, the roles and responsibilities and compensation of primary care nurses and community health clinic physicians in comparison to those of midwives. As of 1994, the highest compensation level for a midwife was approximately 90% of the base salary for an entry level community health clinic physician.
Midwives’ wages remained the same from 1994-2005, much like other health care professionals who also experienced wage freezes in and around that time. The Association of Ontario Midwives (AOM) and the Ministry of Health entered into a new funding agreement providing for an increase in compensation in 2005. A further agreement was reached in 2009, when the parties also agreed to a joint non-binding compensation review by an independent third party to inform the next round of negotiations.
The Courtyard Group was contracted to complete the independent review and report in 2010. By the time that the report was completed in 2010, the highest paid midwife had gone from earning approximately 90% to 57% of the base salary of an entry level community health clinic physician. The report recommended a 20% increase in compensation to midwives effective April 1, 2011. Unfortunately, the Ministry instead proceeded to impose compensation restraint.
Procedural History
In 2013 the Association of Midwives (AOM) brought a human rights complaint on behalf of midwives in Ontario, alleging discrimination on the basis of gender by the Ministry of Health and Long-Term Care. The allegations pertain to the compensation paid by the Ministry to midwives, who are almost all women.
The Human Rights Tribunal Adjudicator considered the compensation provided to midwives in two periods, from 1993 to 2005, and from 2005 to 2013. The Adjudicator found that compensation was equitable from 1993-2005. However, the Adjudicator found that beginning in 2005, the Ministry gradually departed from compensation based on the principles of skill, effort, responsibility and work conditions in comparison to other health care professions, and the wage gap between midwives and community health clinic physicians expanded significantly. In her decision dated September 24, 2018, the Adjudicator held that gender was more likely than not a factor in the significant compensation gap between midwives and CHC physicians (who served as the male comparator), and therefore, the Ministry of Health was liable for discrimination against midwives on the basis of gender.
A decision with respect to remedy followed on February 19, 2020, and midwives were awarded a compensation adjustment of 20% back to 2011, as well as $7,500 per midwife for injury to dignity, feelings, and self-respect.
The Ministry subsequently applied to the Divisional Court for judicial review of the Adjudicator’s decision both with respect to the determination of liability and the monetary award for retro-active compensation and injury to dignity. The Divisional Court held that the applicable standard of review was one of reasonableness. The question on judicial review was therefore whether the Adjudicator’s decision was reasonable, in so far as “there is a line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived.”
The Divisional Court held that the Adjudicator’s decisions with respect to both liability and remedy were reasonable based on the evidence before them, and the application for judicial review was dismissed (Ontario v. Association of Ontario Midwives, 2020 ONSC 2839).
Decision of the Ontario Court of Appeal
The Ministry then appealed the decision of the Divisional Court to the Ontario Court of Appeal, again asserting that the Adjudicator’s decision with respect to both liability and remedy was unreasonable. The ONCA upheld the decision of the Divisional Court, and dismissed the appeal (Ontario (Minister of Health and Long-Term Care) v Assn of Ontario Midwives, 2022 ONCA 458).
In considering the reasonableness of the Adjudicator’s decision, the Court highlighted evidence that the working group who established the initial compensation framework in 1993 focused, in particular, on ensuring that midwives were not under-paid simply because it was a female-dominated profession. Instead, compensation was based on skill, effort, responsibility, and work conditions. Unfortunately, the Ministry then departed from this framework and the wage gap grew considerably, as noted in the Courtyard Report.
With respect to remedy, the Adjudicator found that implementing the recommendation in the Courtyard Report was the best manner to place the parties in the position they would have been in but for the discrimination. While the Ministry of Health took issues with the methodology and recommendations, the Adjudicator adequately addressed these concerns in her decision.
The Court of Appeal held that the Adjudicator’s decisions with respect to both liability and remedy were reasonable and “justified in relation to the relevant factual and legal constraints that bear on them.”
According to the Association of Midwives, in late August 2022, the Ontario government confirmed that they would not be seeking leave to appeal the ONCA’s decision to the Supreme Court of Canada. The matter has thus come to a close, and the decisions of the Human Rights Tribunal Adjudicator with respect to both liability and remedy stand.
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