Ontario Court of Appeal finds systemic gender discrimination against midwives

The province of Ontario committed systemic gender discrimination against its midwives from 2005 to 2013, the Ontario Court of Appeal has affirmed.

In Ontario (Health) v. Association of Ontario Midwives, 2022 ONCA 458, Ontario midwives challenged the province’s compensation practices dating back to 1994, when Ontario midwives became regulated, and sought an increase in compensation retroactive to 1997. The Association of Ontario Midwives (AOM) brought a human rights complaint on behalf of more than 800 midwives, alleging systemic gender discrimination by the Ministry of Health and Long-Term Care (MOH), which funds Ontario’s midwifery program. 

Prior to 1994, Ontario’s midwives were officially excluded from the province’s male-dominated health-care system. In 1986, a task force was created to recommend a framework for the regulation of midwives and their integration into the health care system. In 1993, a joint working group composed of members of the MOH and the AOM produced a report which determined the compensation level for midwives based on their skill, effort, responsibility, and working conditions in comparison to other healthcare professionals. The parties agreed to an initial salary range of $55,000 to $77,000.

However, midwives’ salaries were frozen from 1994 until 1995. In 1999, the AOM and MOH agreed to change the compensation model for midwives, from a salary-based structure to a “course of care” compensation structure. The change did not result in compensation increases.

After 11 years of compensation restraint, the MOH and AOM reached a three-year agreement to increase midwife compensation. When the funding agreement expired in 2008, the AOM became concerned that a gender gap in compensation had developed between midwives and other health-care professionals. In 2010, the parties participated in a joint compensation study conducted by the Courtyard Group. The Courtyard report affirmed the ongoing relevance of the 1993 principles and the widening compensation gap. The report found that nurse practitioners at the bottom end of their compensation range were now paid the same as level one midwives, and in some settings paid significantly more. Further, the compensation of CHC physicians was now “well above that paid to midwives.”

There were a series of negotiations and attempts at compromise over the years, which culminated in 2013, when the parties reached a funding agreement without prejudice to AOM pursuing legal action.

Human Rights Tribunal

The adjudicator of the human rights tribunal ruled that there was insufficient evidence of discrimination from 1994 to 1995 because the parties maintained a connection to the compensation principles established in 1993, which were designed to ensure that midwives’ compensation was not affected by “harmful assumptions and stereotypes concerning the value of women’s work.”

However, from 2005 to 2013, the adjudicator found that the MOH gradually withdrew from the 1993 principles. The adjudicator further found that midwives’ compensation was exposed to gender discrimination. Sex was more likely than not a factor in the adverse treatment midwives experienced after 2005, including significant compensation gap that developed between midwives and certain family physicians, the adjudicator concluded.

The adjudicator ordered a compensation adjustment of 20 percent going back to 2011 and compensation for injury to dignity, feelings, and self-respect in the amount of $7,500 per eligible midwife. The MOH challenged the tribunal’s decision.

Ontario Court of Appeal

The Ontario Court of Appeal affirmed that the standard of review of the tribunal’s decision was reasonableness, which was guided by the principles set in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65.

According to Vavilov, to determine whether a decision is reasonable, “the reviewing court asks whether the decision bears the hallmarks of reasonableness – justification, transparency and intelligibility – and whether [the decision] is justified in relation to the relevant factual and legal constraints that bear on the decision.”

Rational chain of analysis

The MOH contended that the adjudicator failed to articulate a rational chain of analysis because her reasons were circular, internally incoherent and drew peremptory conclusions.

The appellate court, however, found that the adjudicator’s reasons were grounded in the record and the relevant jurisprudence which supported her key conclusion that “sex was a factor in the adverse treatment that midwives experienced and the compensation gap that developed after 2005.” The court concluded that the adjudicator’s application of the three-step test for discrimination revealed a logical chain of analysis. The test requires the complainant to show that they are a member of a protected group, that they have been subjected to adverse treatment, and that their gender was a factor in the adverse treatment.

The adjudicator concluded that gender was a factor in the adverse treatment of midwives for several reasons, which when read holistically do logically “add up” and reveal a rational chain of analysis, the court said.

The court also found that it was reasonable for the adjudicator to conclude that gender was a factor in the compensation of midwives. The MOH argued that it was unreasonable for the adjudicator to find that the 1993 principles were connected to or imbued with gender, and it was unreasonable to draw an inference that gender was a factor from the Courtyard report because the report did not provide a gender-based analysis.

However, the court agreed with the adjudicator’s finding that the 1993 principles were connected, if not imbued, with gender because of the context which gave rise to these principles. It was also open to the adjudicator to find that the Courtyard report, which affirmed the 1993 principles, indicated “that gender discrimination may be an operative factor in the compensation of midwives.”

The court dismissed MOH’s appeal, finding that the “the adjudicator’s decisions on both liability and remedy bear the hallmarks of reasonableness — justification, transparency, and intelligibility. They are justified in relation to the relevant factual and legal constraints that bear on them.”