Saba Ahmad is a Litigator working on environmental, administrative and commercial matters in Toronto. Learn more at www.sabaahmad.com
Victory for Midwives as Divisional Court Dismisses Ontario’s Judicial Review Application
By Saba Ahmad
Ontario’s midwives have won another round of litigation, in a pay equity saga stretching back almost a decade. Late last month, the Divisional Court rejected the province’s Judicial Review application of two decisions of the Human Rights Tribunal (“Tribunal”).
The Tribunal (i) accepted the midwives’ claims of gender-based pay discrimination, (ii) ordered a 20% compensation increase to midwives, retroactive to April 1, 2011, and (iii) awarded each eligible midwife an award of $7,500 for injury to dignity. The Tribunal further ordered the province to work to redress systemic discrimination with studies and analyses designed to promote a gender-sensitive approach to determining compensation levels.
Standard of Review
As the Tribunal is an administrative body – and not a court – appellate review was taken to a panel of three judges of the Divisional Court, who adjudicated the government’s claims under the landmark framework, recently enunciated by the Supreme Court of Canada in Vavilov. The panel declined to resurrect the “patent unreasonableness” standard of review, deciding it must not interfere with the Tribunal’s decisions if they were justified in relation to the facts and law, and followed a line of analysis “that could reasonably lead the Tribunal from the evidence before it to the conclusion at which it arrived.”
History and Decision Below
The Association of Ontario Midwives (“Midwives”) initiated litigation back in 2013, several years after Ontario unilaterally decided that Community Health Clinic (“CHC”) physicians were no longer comparable to midwives when assessing midwife compensation. To that point, there had been agreements between the Minister of Health and Long-Term Care (“MOH”) and the Midwives, about the appropriate funding principles to be followed for paying midwives. The Tribunal determined that the MOH’s policies and conduct in withdrawing from an independent compensation review process the province jointly initiated with the Midwives, without an alternative methodology in place, subjected midwives to adverse treatment in their compensation and that sex was a factor. It held the MOH had provided no reasonable, non-discriminatory explanations for the compensation gap that arose between midwives and other comparable health professionals.
The MOH’s Argument to the Divisional Court
The MOH’s primary argument was that the Tribunal’s reasoning was circular. It argued discriminatory treatment cannot be demonstrated by the purported failure of the government to take “steps” to prevent discrimination. The MOH argued there needed to be some independent evidence to identify discrimination, other than the pay gap that emerged between CHC physicians and midwives.
The Divisional Court rejected the province’s “circularity” argument as disingenuous. It stated that there were independent findings of discrimination by the Tribunal. In particular, in legislation in March of 2010, midwife compensation was reduced under a policy of “compensation restraint.” While the policy was not specifically directed at midwives, the Tribunal determined that applying compensation restraint to sex-segregated workers is clearly disadvantageous. The Tribunal further determined that CHC Physicians remained an appropriate comparator for midwife compensation and that the misalignment of midwife compensation with comparable professions speaks to the failure of the MOH to recognize the role of gender in the compensation of midwives and the necessity of considering the discriminatory effects of policies on sex-segregated workers. In particular, the Tribunal found that midwives are acutely vulnerable to systemic gender discrimination in compensation and that the MOH had agreed a methodology was needed to ensure midwife compensation would be appropriate, fair, and free from gender discrimination. This was particularly the case here, as the Human Rights Code required the government to proactively monitor workplace culture and systems and to “take preventative measures to ensure equality, identify and remove barriers, take positive steps to identify and remedy the adverse effects of practices and policies that appear neutral on their face . . . .” Its failure to do so was held to be discriminatory and without justification.
The Tribunal made a number of other findings about discrimination, including the MOH’s differential treatment of the Midwives and the CHC Physicians in bargaining and its failure to investigate allegations of discrimination, despite an independent recommendation that a 20% adjustment was needed.
Importantly, the Tribunal decided that there was no separate, evidentiary requirement for the Midwives to show adverse treatment was arbitrary or derived from stereotypes. The panel agreed that evidence of a discriminatory purpose was not necessary and is not always present in systemic or adverse impact discrimination cases.
Ultimately, the panel concluded the Tribunal’s decisions were reasonable and the reasoning process transparent, intelligible, and justified. The Divisional Court permitted cost submissions from the Midwives within 14 days.
The government has not yet indicated whether it intends to seek leave to appeal the decision.
 Saba Ahmad is a civil litigator working primarily on commercial matters in Toronto. She sits on the boards of two charitable or non-profit organizations and edits the newsletter for the OBA’s CCLHR section. Saba is licensed to practise law in the Province of Ontario and in the State of New York.
 Ontario v. Association of Ontario Midwives, 2020 ONSC 2839, at para. 289.
 Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65.
 Ontario v. Association of Ontario Midwives, 2020 ONSC 2839, at para. 89.
 Ontario v. Association of Ontario Midwives, 2020 ONSC 2839, at para. 60.
 Ontario v. Association of Ontario Midwives, 2020 ONSC 2839, at paras. 8-10.
 Ontario v. Association of Ontario Midwives, 2020 ONSC 2839, at para. 112.
 In particular, the government failed to follow an objective or demonstrably fair process for setting paying midwives. The reason for comparing the jobs of midwives to the jobs of CHC physicians and nurse practitioners was to ensure midwives were paid in line with these other professionals, whose work was comparable to the work that midwives do. Expert evidence demonstrated that objective metrics would reduce the likelihood of irrelevant or discriminatory factors from influencing midwife compensation.
 Ontario v. Association of Ontario Midwives, 2020 ONSC 2839, at para. 113.
 Ontario v. Association of Ontario Midwives, 2020 ONSC 2839, at para. 120.
 Ontario v. Association of Ontario Midwives, 2020 ONSC 2839, at para. 184.
 Ontario v. Association of Ontario Midwives, 2020 ONSC 2839, at para. 147.