Overview of HRTO case (Members & Applicants only)
August 5, 2020
At the end of July, the MOH sought leave to appeal the Divisional Court's unanimous decision to uphold the HRTO decision and remedy orders.
In the interim, and on a without prejudice basis, the MOH has agreed to implement the Tribunal's order that $7,500 be paid to eligible midwives to compensate them for injuries to their dignity resulting from the MOH's past discriminatory conduct. The MOH has transferred the injury to dignity damages to the AOM as of July 17, 2020 to disburse the payments to eligible midwives. There are 1003 midwives who have been deemed eligible by the HRTO. It is anticipated that the disbursements could take several weeks to complete, given the large number of eligible midwives. The disbursements will be released in batches, so not all Applicants will receive the payment on the same day.
Please note that the MOH has reserved its right to recover the payment of injury to dignity damages from midwives should it decide to appeal the Divisional Court's decision and be ultimately successful in overturning the Tribunal's and Divisional Court's decisions. Therefore, there is a possibility that the MOH may seek to recover the injury to dignity damages from midwives at a later date. Members and Applicants will be updated as soon as we know whether the MOH will appeal the Divisional Court's decision. If it does appeal the Divisional Court’s decision, it will likely be another 12 to 18 months before we would receive a decision from the Ontario Court of Appeal either dismissing or granting the MOH's appeal.
In addition, we expect to have further details on a timeline for the additional remedial relief shortly. Stay tuned for more details. We will share them as soon as they are available.
Overview of the judicial review
On April 21, 22 and 23, 2020, the Divisional Court of Ontario heard arguments regarding the judicial review (similar to an “appeal”) of the decision issued in favour of midwives at the Human Rights Tribunal of Ontario. Over 100 midwives logged on to join the virtual hearings each day. The judges on the panel heard from counsel acting on behalf of the Ministry of Health (the MOH), who filed for the judicial review, as well as the Association of Ontario Midwives (AOM) and the Human Rights Tribunal of Ontario (HRTO).
On June 26, 2020, the Ontario Divisional Court released its unanimous ruling upholding the HRTO’s landmark decisions finding that the MOH systemically discriminated against midwives on the basis of their gender when setting their compensation.
In dismissing the MOH’s application for judicial review, the Court agreed with the AOM that the MOH’s compensation‐setting practices breached midwives’ fundamental human right to pay equity under Ontario’s Human Rights Code (Code) and upheld the substantial remedies ordered to rectify the discrimination, including:
- retroactive 20% pay equity adjustment back to April 1, 2011, and ongoing with interest for approximately 1000 midwifery complainants;
- directions to the MOH to conduct a gender‐based analysis of ministry compensation‐setting practices for ongoing compensation;
- engaging in ongoing joint pay equity studies with the AOM to determine compensation from 2014 onwards.
This decision represents an important victory for Ontario midwives and other sex‐segregated workers by upholding that such workers have important pay equity protections and remedies under the Code. Midwives as contractors are not covered by Ontario’s Pay Equity Act (PEA). The decision significantly advances human rights jurisprudence by making it resoundingly clear that an employer or compensation setter cannot rely on ignoring gender, as the MOH had claimed, when setting compensation levels for its sex‐segregated workers. Instead, they are required to act proactively to ensure at the outset compensation setting is not discriminatory in compliance with the Code. This is necessary to ensure that such workers who have been subjected to historical prejudice, stereotyping and undervaluation of their work are ensured a process to make visible and value their work free of gender bias.
In a carefully reasoned 59 page judgement (PDF, 755 KB), the Court dismissed all of the MOH arguments, finding the MOH’s ongoing insistence that it did not discriminate without merit. The decision calls out the MOH for making “disingenuous” arguments, “missing the point,” and “mischaracterizing” the Tribunal’s findings. The Court rejected the MOH’s arguments that the Tribunal’s 2018 liability and 2020 remedial decisions were unreasonable, finding that MOH’s arguments “mischaracterize the history of compensation negotiations with the AOM, fail to engage with the allegations of adverse gender impacts on midwives and ignore the systemic dimensions of the claim” (para 11). The Court found it was reasonable for the Tribunal to conclude that the MOH had failed in carrying out its proactive Code duty to ensure gender discrimination does not affect midwives’ compensation levels and should be liable for the full set of remedial relief ordered.
Divisional court decision
The Court dismissed the MOH’s judicial review application, concluding that the Tribunal’s finding of systemic gender discrimination in midwives’ compensation setting and its remedies were reasonable. In doing so, the Court:
(a) criticized the MOH’s approach of ignoring the gender of midwives as if “gender and the systemic nature of the claim are nonexistent,” and how the MOH’s position revolves around the faulty premise that “gender has never been a factor in determining compensation for midwives” (para 102);
b) emphasized that “it was the systemic nature and cumulative effect of the MOH’s policies and conduct over time on the compensation of midwives that the Tribunal found made gender more likely than not a factor in the midwives’ adverse treatment and the breach of the Code clear” (para 120);
c) rejected the MOH’s many arguments that it had set midwifery compensation without gender bias, calling arguments “disingenuous” (para 113);
d) accepted as reasonable the Tribunal’s finding that midwives suffered adverse treatment and an increasing compensation gap as a result of their gendered circumstances;
e) rejected the MOH argument that midwives were paid less than physicians because the OMA and physicians were powerful bargainers, noting the Tribunal’s finding that the MOH failed to examine the gendered nature of the different bargaining practices afforded to midwives and physicians;
f) highlighted that the Tribunal made a clear finding that the compensation restraints imposed on the midwives without any analysis of their Code pay equity entitlements was discriminatory;
g) found that the Tribunal acted reasonably when it rejected the MOH’s argument that CHC physicians should no longer be an appropriate male comparator;
h) found as reasonable the Tribunal’s criticism that MOH chose not to provide a compensation study to validate its position that midwives and CHC physicians are no longer appropriate comparators (paras 168‐9); and
i) held that the Tribunal acted reasonably when it concluded that the MOH’s failure to take reasonable, proactive steps to respond to the AOM’s pay equity concerns compounded midwives’ adverse treatment.
In addition, as the successful party on the judicial review application, the MOH has consented to an order that the MOH pay $100,000 to the AOM for legal costs.
Summary of Divisional Court arguments
Ministry of Health’s arguments
During the hearings and in its factum, the ministry (counsels Zachary Green and Courtney Harris) argued that the:
- The tribunal’s liability and remedy rulings were unjustifiable and unreasonable, and
- The tribunal improperly applied the test for discrimination
In the virtual hearings, the ministry continued to rely on their argument that all compensation increases given by the ministry to community health center (CHC) family physicians were due solely to labour market demands, and therefore the liability ruling was unjustifiable and unreasonable. The ministry continued to deny that sex was ever a factor in the ways the ministry treated midwives and that they never had any proactive obligation to prevent discrimination, or apply a gender-based analysis in compensation setting for midwives.
Furthermore, the ministry argued that the tribunal “misapplied the test for discrimination” by disregarding the ministry’s expert evidence and that the remedies ordered by the tribunal were unreasonable, as they relied on a ‘novel’ interpretation of the code, and forced the ministry to maintain the CHC physician comparator for all time.
- Read the AG’s argument (PDF, 736 KB)
The Association of Ontario Midwives' arguments
The AOM, on behalf of midwives, disagrees with the ministry’s reasoning, and has publicly called for the government to drop their judicial review and work to implement the remedy orders. The AOM argued (represented by Mary Cornish and Adrienne Telford), that the tribunal did in fact consider the expert evidence, but as most of the expert evidence on both sides dealt with the Durber report, and ultimately the tribunal did not find the Durber report to be relevant, that the expert evidence did not ultimately need to be considered. AOM pointed to the extensive witness testimony that was taken in to consideration by the tribunal, including testimony from past AOM presidents.
In our factum to the Divisional Court (PDF, 1.1 MB) the AOM submitted:
The AOM further argued that the remedies ordered by the tribunal were entirely reasonable, considering the ministry’s repeated and continued refusal to acknowledge its obligations under the Code, and that neither the tribunal, nor the AOM has maintained that CHC family physicians must always be considered midwives’ comparator profession – but that there be an appropriate equity tool employed in place should that comparator be deemed no longer appropriate.
The Human Rights Tribunal's arguments
Tribunal lawyer, Jason Tam argued the HRTO made a finding of systemic discrimination on the basis of sex with regard to the setting of compensation of midwives by the Ministry for the period of 2005–2013 and ordered financial compensation and future compliance with the Code in a way that was indeed reasonable.
- Read the HRTO’s arguments (PDF, 662 KB)
Ministry of Health's application for stay
During the virtual hearings, the panel of judges also heard the ministry’s application for a stay of the tribunal’s remedial orders. The ministry asked the Divisional Court to exempt them from the timelines set out in the remedy ruling due to the ongoing COVID-19 response, arguing that the financial and human resources required to implement it would have a significant impact on the ministry’s ability to respond to the COVID-19 pandemic. The ministry is asking that the timelines set out in the remedy decision (PDF, 335 KB) be delayed until after the judges issue a ruling on the judicial review (which we estimate we will receive between six and 12 months).
The AOM's response to application for stay
The AOM acknowledged that the ministry — and the health-care sector more generally — is currently focused on responding to the COVID-19 pandemic. Midwives are on the front lines of the province’s health-care response, along with physicians, nurses and other health-care professionals.
However, the AOM also wants to ensure that the fundamental human rights of its members are given sufficient priority. As detailed in the tribunal’s decisions, there is a history of the ministry telling midwives that it must delay considering their equity claims because another priority is more important.
On the last day of Divisional Court hearings (April 23, 2020), the AOM argued that the ministry be given an extension from between two weeks to four months to implement remedy (with the exception of interest-related deadlines), to extend past the COVID-19 peak response period. To ensure midwives do not face any more unnecessary delays in receiving the compensation adjustments they deserve, the AOM has also argued that if the judicial review decision has not been received by the time these adjustments are due, that the ministry must direct the funds to go towards these adjustments into an escrow account, so that when the decision is released (hopefully in midwives’ favour), midwives will receive their compensation adjustments in a timely manner.
This proposition was made to counter the ministry’s argument that they should not need to calculate and transfer compensation adjustments until the judicial review decision is released, because it would be difficult for the ministry to recoup these funds should the judicial review decision be in their favour.
Overview of HRTO
The final evidence for our legal action against the Ministry of Health and Long-Term Care (MOHLTC) concluded before the Human Rights Tribunal of Ontario on Tuesday April 4, 2017.
On June 1, 2016, opening statements launched the beginning of the hearing before the Tribunal. On September 14, 2016, the AOM witnesses began their testimony. The Ontario midwives’ evidence was presented in chronological order, covering the events of pre-regulation, regulation, government relations and compensation of midwives.
The witnesses consisted of several midwives, including AOM Past-Presidents — ranging from first President Jane Kilthei (1992 -4) to current AOM President Elizabeth Brandeis. The midwives who testified to the history, midwifery work and facts related to government relations were: Jane Kilthei, Vicki Van Wagner, Bobbi Soderstrom, Carol Cameron, Bridget Lynch, Remi Ejiwunmi, Elana Johnson, Katrina Kilroy, Madeleine Clin and Elizabeth Brandeis.
There were also non - midwife witnesses who gave valuable evidence for our side about the facts related to government relations, midwifery compensation and experience of other predominantly female - dominated health - care providers (specifically nurse practioners). These witnesses were: Jon Ronson, Courtyard Group consultant; Moshe Greengarten, Hay Group consultant; Theresa Agnew, Executive Director of the Nurse Practitioners’ Association of Ontario; and Kelly Stadelbauer, Executive Director of the AOM.
There were also five injury to dignity witnesses who testified to the impact of the discriminatory compensation and structure. The midwives were: Rebecca Carson, Daya Lye, Nicole Roach, Maureen Silverman and Jacqueline Whitehead. The midwives who testified ranged in numbers of years in practice, region and the kind of practice structure they practice in. Their compelling testimony spoke to the very real and personal impact that systematic discrimination on their compensation has had on them and their families. This testimony will be vital when the adjudicator attempts to quantify general damages for injury to dignity experienced by midwives.
The experts who testified for Ontario midwives were: Paul Durber (see his report and corrected annex), Dr. Pat Armstrong and Dr. Ivy Bourgeault. All of the experts provided excellent evidence and gave context through a gender and pay equity lens to the history and facts testified to by midwives.
The Ministry fact witnesses consisted of various government officials who are/ were either directly involved with or at a high level were in charge of overseeing the midwifery portfolio from 1993 - present. The Ministry witnesses were:
- Susan Davey: worked at the MOHLTC from 1993 until 2006, was Acting Director of the Community and Health Promotion Branch, and Senior Manager of the Community and Health Promotion Branch. Throughout her time at the Ministry, she was involved in and had responsibility for the Ontario Midwifery Program.
- Robert Morton : consultant and author of the Morton Report
- Nancy Naylor : Associate Deputy Minister, Delivery and Implementation at the MOHLTC
- Fredrika Scarth: from January 2014 to September 2015 was Acting Manager of Salaried Models and Programs in the Primary Health Care Branch and w as responsible for oversight of the Ontario Midwifery Program.
- Melissa Farrell: from April 2012 until January 2015 was the Director of the Primary Health Care Branch in the MOHLTC. She oversaw the Ontario Midwifery Program.
- Laura Pinkney: from March 2007 to March 2013, held various manager roles in the Primary Health Care Branch including Manager, Salaried Models and Programs at the Primary Health Care Branch in the MOHLTC from November 2008 until March 2013. Was responsible for overseeing the Ontario Midwifery Program.
- David Thornley: Executive Director of the Guelph Community Health Centre. From 1994 to 2007 was a coordinator in the Community Health Branch of the MOHLTC.
In addition to MOHLTC staff, four community health centre physicians spoke about their work: Mary - Rose Macdonald (Parkdale CHC), Susan Woolhouse (South Riverdale CHC), Nicole Nitti (Access Alliance CHC) and Tara Kiran (Regent Park CHC).
The MOHLTC experts were: Robert Bass, Dr. Candace Johnson, Dr. David Price, John Kervin, Dr. Lisa Graves and Richard Chaykowski. The focus of the MOHLTC expert testimony was to critique of the AOM expert reports and overview of the work of family physicians.
HRTO at a Glance
1,225 days from filing to last witness testimony
20 witnesses called by AOM
14 witnesses called by government
3 expert witnesses called by AOM
6 expert witnesses called by government
5 midwives provided testimony on injury to dignity
290 exhibits filed at the tribunal
14,681 documents reviewed
160 page application submitted to the tribunal
725 pages of affidavits submitted to the tribunal
1,763 days from filing to decision
The Toronto Star has been covering our legal advocacy work to secure pay equity for midwives. You can read the following articles online:
- 'Huge victory for midwives' as Ontario court upholds pay-equity ruling
- Tribunal delivers landmark victory to Ontario midwives in years-long pay-equity battle
- Ontario appeals landmark pay equity ruling for province’s midwives
Please feel free to contact:
Director, Policy & Communications