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Every person has a right to equal treatment in their employment and to be free from discrimination on the basis of protected grounds. These include race, sex and disability. This protection covers every aspect of the employment relationship, from recruitment to dismissal. It also covers the rate of pay.

This article looks at the recent decision of the Court of Appeal for Ontario in Ontario (Health) v. Association of Ontario Midwives. The Association of Ontario Midwives claimed that the Ministry of Health and Long-Term Care had engaged in systemic sex discrimination with respect to compensation practices. 

The Ministry of Health and Midwives Association adopted compensation principles in 1993

Midwifery has been a regulated health profession in Ontario since 1994. A joint working group of the Ministry of Health and Long-Term Care and the Association of Ontario Midwives was created to determine payment levels. A compensation expert was retained in 1993 to develop compensation principles. These principles included an evaluation of midwives’ skill, effort, responsibility, and working conditions compared to other healthcare professionals (specifically primary care nurses and family physicians working in community health clinics). The parties agreed that the salary range for midwives would fall between a community health clinic (CHC) nurse and a CHC physician.

From 1994 to 2005, midwives’ salaries were frozen, although all other CHC workers had their salaries frozen from 1992 to 2003. In 2005, the parties reached a three-year agreement increasing midwife compensation. 

The Association of Ontario Midwives became concerned that a compensation gap had developed between midwives and community health clinic physicians. A joint compensation study in 2010 confirmed the ongoing relevance of the 1993 compensation principles. However, the study found that nurses at the bottom end of their range were now paid the same as level one midwives, and CHC physicians were now paid well above midwives. The report recommended a 20% compensation increase.

Midwives Association brought claim after Ministry of Health abandoned compensation principles

The Ministry of Health disagreed with the report and advised that the negotiations would be governed by the government’s policy of compensation restraint. There were a series of negotiations and attempts to compromise. Eventually, the parties reached a funding agreement in 2013, but it was entered into on a without-prejudice basis.

The Association of Ontario Midwives applied to the Human Rights Tribunal of Ontario, alleging that midwives had experienced systemic gender-based discrimination in compensation. It claimed discrimination on the basis of sex under the Ontario Human Rights Code and sought an increase in compensation retroactive to 1997.

Human Rights Tribunal decided compensation practices were discriminatory 

The Adjudicator found that the 1993 compensation principles were designed to ensure that midwives’ compensation was not affected by “harmful assumptions and stereotypes concerning the value of women’s work”. She was satisfied that the parties maintained a connection to the principles until 2005, concluding there was insufficient evidence of discrimination up until that time.

However, after the Ministry of Health abandoned the principles following the 2010 report, the Adjudicator “found that this left the compensation of midwives exposed to the well-known effects of gender discrimination on women’s compensation”. She concluded that sex was more likely than not a factor in the treatment, including the compensation gap that developed between midwives and community health clinic physicians, which was a male comparator.

The Adjudicator found that the Ministry of Health was liable for discrimination, ordering a compensation adjustment of 20% to 2011 and $7,500 compensation for injury to dignity, feelings, and self-respect per eligible midwife. The Ministry appealed.

Reasonableness is standard of review for Human Rights Tribunal Decision: Court of Appeal

Associate Chief Justice of Ontario Fairburn noted that the standard of review of the Human Rights Tribunal’s decision was reasonableness. She explained that the Court’s starting point was judicial restraint and respect for the distinct role of administrative decision-makers such as the Tribunal.

The Court of Appeal found the Adjudicator correctly articulated the test for discrimination, with the claimant required to prove:

  • They are a member of a group protected by the Human Rights Code
  • They have been subjected to adverse treatment; and
  • Their gender was a factor in the adverse treatment. There need only be a connection between the prohibited ground and the adverse treatment. 

Court of Appeal found it was reasonable to conclude adverse treatment of midwives based on gender

The Court of Appeal acknowledged that midwifery is “the ultimate sex-segregated profession: women providing a service for women in relation to women’s health”. 

As midwives are almost exclusively women, they have a characteristic protected by the Code. The Court of Appeal decided that it was rational for the Adjudicator to conclude that midwives experienced adverse treatment and that sex/gender (terms used interchangeably by the Court) was more likely than not a factor. The parties were alive to systemic discrimination in agreeing to the 1993 compensation principles, which the Ministry of Health later abandoned, along with the use of community health clinic physicians as a comparator. The Ministry of Health did not substitute them with a new methodology for determining the appropriate and fair compensation for midwives.

As a result, the Court of Appeal held that it was reasonable for the Human Rights Tribunal to find gender was a factor in developing the 1993 compensation principles and the 2010 report.

Community Health Clinic physicians appropriate comparator group for compensation

The Court of Appeal also found that community health clinic (CHC) physicians were an appropriate comparator. While CHC physicians became female-dominant over time, they remained an appropriate male comparator because their pay aligned with a male-dominated group.

Given the above findings, the Court of Appeal held that the decisions of the Human Rights Tribunal were reasonable and dismissed the Ministry of Health’s appeal.

Bader Law: Providing Human Rights & Employment Law Advice in Mississauga

The skilled employment lawyers at Bader Law help demystify employment and human rights laws for employees and employers. We simplify the law to help clients understand their options and make informed decisions. Bader Law regularly advises employees and employers on discrimination, accommodation of disability and illness, harassment, wrongful dismissal, severance packages, and more. To schedule a consultation with a member of our experienced employment law team, call us at 289-652-9092 or reach out online.