Midwives keep winning in fight to close the pay gap
June 13, 2022
Midwives have emerged winners once again, following another failed legal appeal initiated by the Ford government. Now the highest court in the province, the Ontario Court of Appeal, has also ruled unanimously in favour of midwives (PDF, 494). Affirming the government of Ontario is responsible for systematically discriminating against midwives because their work is so deeply associated with women’s care work, the court upheld earlier court orders directing government to take concrete action to close the gender pay gap.
Case background
The Ontario government has been fighting midwives in court for nearly 10 years. The AOM filed its original application to the Human Rights Tribunal of Ontario (HRTO) in November 2013.
In September 2018 the HRTO issued a landmark decision (PDF, 364 KB) in favour of Ontario midwives, finding the Ontario government liable for discriminatory compensation-setting practices. In February 2020 the Tribunal issued concrete and specific orders (PDF, 612 KB) requiring the province to end the discrimination going forward and compensate midwives for the discrepancy in pay and injury to dignity they had experienced. This decision was unanimously upheld (PDF, 755 KB) by Ontario’s Divisional Court in June 2020. The Ford government was granted leave to appeal the Divisional Court decision to the Ontario Court of Appeal, which heard the case on November 10, 2021.
When midwifery was first regulated in 1994, the Ontario government and the Association of Ontario Midwives applied pay equity principles to jointly determine that the Community Health Centre (CHC) physician was the closest male comparator to midwifery work, due to their overlapping scope of practice. By 2010 the government had unilaterally abandoned the use of a male comparator and a very large pay equity gap had grown between midwives and CHC physicians. In 1994, the pay gap was $3,000; by 2010 that gap had widened to $100,000. Today that gap is $154,155.
The 2020 Tribunal order required the provincial government to implement a series of remedies to close the compensation gap and prevent future discrimination, including an immediate compensation adjustment of 20% for midwives. That adjustment did not close the gap, but rather served as a minimum ‘down payment’ on closing the gap, until government could complete a comparative job evaluation. The Ministry of Health and the AOM are currently engaged in this job evaluation. In addition, the Ministry of Health was ordered to conduct an intersectional Gender Based Analysis (GBA+) of its compensation practices and policies and to implement recommendations flowing from that report to ensure it takes gender and intersecting identities, like Indigeneity, ability and family status, into account. The government received the GBA+ report in September 2021 but refused to release it to the AOM. The AOM only received a copy after a filing a Freedom of Information Request. To date, government has yet to make any specific commitments with timelines for implementing the recommendations from the GBA+ report, including the creation of a gender equity plan for midwives. (Read a summary of the GBA+ report; PDF, 140 KB)
Access to Fair Bargaining Process
The Ontario government denies midwives access to fair bargaining processes. Other health-care workers in Ontario, like physicians, have access to binding arbitration to resolve disputes that arise during contract negotiation. Arbitration is an efficient alternative to litigation, but the province has refused the AOM’s request to implement a binding arbitration option into their bargaining relationship. The lack of fair bargaining process left midwives without recourse to fair compensation, other than prolonged and expensive legal actions. Even when faced with the landmark HRTO decision, instead of committing to closing the gender gap, the government has chosen to waste taxpayer dollars dragging midwives through the courts – not once, but twice.
Ontario’s Economic Recovery
In Ontario, women on average earn only 70 cents on the male dollar. Inequity is even more acute for women who identify as Indigenous, racialized, newcomers, elderly, living with disabilities and 2SLGBTQ+. Closing the gender pay gap is essential for Ontario’s economic recovery. Undervaluing gendered professions, like midwifery, undermines the sustainability and viability of the health system – which is already strained and facing significant sustainability challenges following the pandemic.
Midwives’ message to Premier Ford
Midwives' message to Premier Ford is straightforward: Stop wasting tax dollars fighting midwives in court. Implement the court orders aimed at ending discrimination against midwives. Agree to a binding arbitration framework so that disputes can be resolved efficiently. Invest in closing the gender pay gap.