Health minister committed systemic discrimination in treatment of midwives’ pay: Ontario court

Divisional Court used three-part test for discrimination from Peel Law Association v. Pieters

Health minister committed systemic discrimination in treatment of midwives’ pay: Ontario court

The Divisional Court of the Ontario Superior Court of Justice has upheld the Human Rights Tribunal’s decision that found gender discrimination on the part of the Minister of Health and Long-Term Care in setting the compensation of midwives.

In Ontario v. Association of Ontario Midwives, 2020 ONSC 2839, the Association of Ontario Midwives, concerned that a gender gap in compensation had developed between midwives and Community Health Clinic physicians, had succeeded in getting the health minister to agree to a joint compensation review, conducted by a third-party consultant who would suggest an appropriate total compensation package for midwifery services based on a methodical review of the evidence.

The resulting Courtyard report recommended a 20-per-cent increase in midwives’ compensation; the health minister then unilaterally withdrew from the review process. The minister also decided that CHC physicians should not be considered appropriate comparators for midwives.

The association filed an application with the Human Rights Tribunal of Ontario, alleging that midwives’ compensation amounted to discrimination on the basis of sex, in violation of Ontario’s Human Rights Code.

The tribunal ruled in the association’s favour, stating that sex-based discrimination was indeed a factor in the health minister’s decision to back out from the review process and that the cumulative impact of the health minister’s policies on midwives’ compensation amounted to an infringement of the Code.

In an application assailing the reasonableness of the tribunal’s decision, the health minister contended that the association had failed to adequately show that midwives experienced adverse treatment relating to their gender in their compensation. The health minister also argued that the gap in compensation stemmed from occupational differences as well as differences in bargaining power between midwives and CHC physicians.

The Divisional Court disagreed, stating that the tribunal’s finding of systemic gender discrimination in the midwives’ compensation was not unreasonable. The court cited the three-part test for discrimination, found in Peel Law Association v. Pieters. First, the one alleging discrimination must identify with a prohibited ground for discrimination. Second, there should be adverse treatment. Third, the adverse treatment and the ground should be connected.

Regarding the second part of the test, the court said that the tribunal’s finding of adverse treatment was based on evidence such as the Courtyard report, which found a gradual misalignment between the treatment of midwives’ compensation and that of their comparators’ compensation. The tribunal had also found adverse treatment in the health minister’s unilateral abandonment of CHC physicians as the appropriate comparators, despite the overlap between their respective scopes of practice.

As for the third part of the test, the court said that the tribunal’s decision that sex was a factor in the health minister’s decisions concerning midwives’ compensation was reasonable.

The tribunal had found that, while the health minister had initially agreed to a methodology which would promote fairness in midwives’ compensation, the minister gradually strayed from this methodology and went on to abandon CHC physicians as a comparator. The health minister also failed to propose an alternative methodology that would ensure that midwives would be compensated based on the value of their work, which is a benefit routinely enjoyed by men. The tribunal also stated that the original funding principles were imbued with gender, a finding that it backed with overwhelming evidence.

The court therefore accepted the tribunal’s decision as reasonable and defensible with respect to the facts and the applicable law.

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