In Association of Ontario Midwives v Ontario (Health and Long-Term Care), 2020 HRTO 165, the Ontario Human Rights Tribunal (HRTO) found that the Ministry of Health and Long-Term Care (MOH) underpaid midwives due to gender discrimination.¹ The HRTO ordered the MOH to implement a 20% wage adjustment for eligible midwives to be applied retroactively from April 1, 2011, and ordered $7,500.00 as damages for injury to dignity, feelings, and self-respect be paid to each eligible midwife. The ruling affirmed that those who set compensation rates are obligated to take proactive steps to prevent and remedy discrimination to ensure that sex-segregated workers are compensated equitably. The Divisional Court of the Ontario Superior Court of Justice upheld the HRTO’s ruling.

Background

Initial Regulation of Midwifery and Agreement on Compensation (1993)

In 1985, the Government of Ontario established a task force to make recommendations on integrating midwives into the health care system. The MOH and the Association of Ontario Midwives (AOM) collaborated to regulate midwifery, and brought midwives into the health care system at compensation levels that did not give rise to issues of gender discrimination.

Since 1993, the MOH has been responsible for the midwifery program in Ontario, including compensation. The MOH is also responsible for the compensation paid to other health care professionals, including nurses and physicians. The AOM is the recognized representative of Ontario’s registered midwives.

Through a joint working group process in 1993, the MOH and the AOM reached an initial agreement on compensation. In advance of the working group, the parties agreed as a fundamental principle that compensation for midwives would reflect the overlapping scope of practice they share with senior nurses (now nurse practitioners) and family physicians working in Community Health Centres (CHCs). The joint working group retained a compensation expert (Morton) to conduct an evaluation of the skill, effort, responsibility and working conditions (SERW) of midwives as compared to senior nurses and family physicians. Taking into account the Morton evaluation, the joint working group positioned the midwives between the two groups (1993 comparators). The methodology produced an agreement on compensation levels that was not affected by the prevailing gender stereotypes about midwifery work. The principles and methodology adopted by the parties in 1993 embodied the values of understanding, mutual respect and dignity, the rights of midwives to realize equal treatment without discrimination, and the duty of the MOH to develop compensation practices and policies that proactively incorporate an awareness of their obligations under the Ontario Human Rights Code (Code).

Compensation Dispute Leading up to the HRTO Filing (2010-2013)

The MOH unilaterally withdrew from the principles established at regulation, which protected the compensation of midwives from the effects of gender discrimination. Until 2010, while the MOH always had the power to set funding levels unilaterally, it generally negotiated with the AOM and relied on the expertise of midwives to establish compensation agreements. Concerned that midwives were losing their connection to the funding and compensation principles they achieved in the 1993 agreement, the AOM asked the MOH to agree to a joint compensation study. The parties participated in a compensation study with Courtyard Group in the summer of 2010—the first joint compensation study since 1993. Courtyard’s mandate was to make recommendations on an appropriate total compensation package for midwives and evaluate the ongoing relevance of the 1993 methodology. In October 2010, Courtyard provided its final report, recommending a 20% compensation adjustment for midwives and affirming the ongoing relevance of the original funding principles, including comparison with CHC physicians. Courtyard attributed the compensation gap to a lack of adherence to the original funding principles.

After the Courtyard Report, the MOH took the position that the 1993 principles and methodology no longer informed the compensation practices of the MOH. The MOH unilaterally determined that CHC physicians were not appropriate comparators for midwives. The MOH did not conduct a compensation study of its own or provide expert evidence to validate that assumption and its compensation practices. In fact, the MOH denied that gender was ever a factor in determining compensation for midwives and that midwives never had their compensation set in relation to a male comparator.

By 2013, the parties had reached an impasse. On November 27, 2013, the AOM filed an Application with the HRTO on behalf of more than 800 of its members concerning the compensation paid to midwives since the regulation was, alleging midwives have experienced gender-based compensation discrimination.  

Decision of the HRTO

HRTO Finds Discrimination Occurred 2005-2013

The task of the HRTO was to determine whether the respondent (the MOH) discriminated against the applicant (the AOM). The question to be decided was whether the applicant satisfied the legal burden of proof of establishing on a balance of probabilities that the discrimination occurred. The AOM proved discrimination on a balance of probabilities by meeting the three elements required to prove discrimination: identification with a prohibited ground (sex); adverse treatment (sometimes referred to as adverse impact or disadvantage); and, a connection between the adverse treatment and the ground. Through witnesses and expert reports, the AOM successfully demonstrated that compensation for midwives eroded over time and was affected by gender discrimination.  

The HRTO investigated two periods: 1994 to 2005, and 2005-2013.  It found that from 1994 to 2005 there was insufficient evidence to support a finding of discrimination, but from 2005 to 2013 (when the application was filed) there was sufficient evidence to support such a finding. The HRTO found that from 2005 onwards, midwives experienced adverse treatment, and that sex was more likely than not a factor in the treatment they experienced, including the compensation gap that developed between midwives and CHC physicians since 2005.

HRTO Finds the MOH Flouted the Code

The HRTO found that the MOH failed to maintain a perspective consistent with the principles set out in the Code in its negotiations with the AOM after the Courtyard Report, and thereby created a series of consequences, that when considered together, constituted discrimination under the Code. The principle that compensation for midwives should reflect the overlapping scope of practice of the family physician was based on a male comparator. The point of the principle and the 1993 Morton methodology was to ensure that midwives’ compensation was not negatively affected by traditional assumptions and stereotypes about the value of “women’s work.”

The HRTO found that, in 1993, the parties were aware of the pervasive nature of systemic discrimination in compensation, the stereotypes associated with women’s work, and the necessity to ensure that women be paid by reference to objective factors like SERW. The HRTO agreed with the MOH that comparison with CHC physicians is an important part of evaluating the AOM’s allegations of discrimination. The HRTO found that the MOH agreed at regulation that CHC physicians were an appropriate comparator, and the report by Courtyard validated the ongoing relevance of the comparison. Since the MOH did not produce a job evaluation concluding that midwives and CHC physicians are not comparable for compensation purposes, the HRTO found the MOH’s position speculative.

Ultimately, the MOH abandoned the entire history of compensation negotiations with the AOM. The HRTO found the Courtyard Report sufficiently compelling for the MOH to give credence to the AOM’s claim of gender discrimination. There was no evidence that the MOH took reasonable steps to understand and evaluate the allegations of discrimination. The MOH compounded the adverse impact on midwives by failing to take reasonable steps to respond to the AOM’s allegations that their compensation was falling behind based on the original funding principles. The AOM cited cases and Ontario Human Rights Commission (OHRC) policies that establish requirements to act proactively to address discrimination in order to comply with the Code. In the documents cited, proactive actions include monitoring workplace culture and systems, taking preventative measures to ensure equality, identifying and removing barriers, and taking positive steps to identify and remedy the adverse effects of practices and policies that may appear neutral at first glance.

The MOH admitted that it had violated OHRC policies in not taking proactive steps to monitor the compensation of midwives for the impact of gender discrimination on the fairness of their compensation. The HRTO concluded that in order to comply with the Code, the MOH is obligated to take steps both to prevent and remedy discrimination. The failure to act proactively is just one factor from which the HRTO drew an inference of discrimination.

Bottom Line for Employers

1. Be proactive. There is a duty on employers and compensation-setters to ensure that compensation practices comply with the Code. This is especially important in the case of sex-segregated workers, who are vulnerable to the forces of gender discrimination on their compensation. Employers should proactively monitor the compensation paid to sex-segregated workers. The failure to act proactively is just one factor from which the HRTO may draw an inference of discrimination.
2. Don’t expect difficulty in assessing damages to favour the defendant. Although assessing the quantum of damages in cases of systemic discrimination is difficult and time-consuming, it is an insufficient reason to deny remedies to complainants who have experienced discrimination.
3. Don’t neglect the Pay Equity Act (PEA) and PEA rulings. Although the provisions of the PEA did not apply to midwives as independent contractors, both parties drew on provisions of the PEA for the purpose of interpreting the Code. The preamble of the PEA acknowledges the existence of systemic gender discrimination in the compensation of employees in female job classes, and the necessity for affirmative action to redress that discrimination. The PEA contains a prescribed, proactive process for identifying and eliminating certain forms of systemic gender discrimination in compensation between employers and employees. Although these PEA requirements are not imposed by the Code, employers that hire independent contractors who are covered under the Code should be aware that adjudicators may draw on both the PEA itself, and on interpretations of the PEA when deciding upon matters under the purview of the Code. Furthermore, plaintiffs who are independent contractors may draw upon the PEA and PEA cases to build their own cases under the Code. The PEA and PEA rulings are particularly relevant for interpretations of the Code in making findings about what constitutes systemic discrimination in compensation, and the historical factors that contribute to differences in wages among workers in historically male or female jobs. While there is clearly a duty on an employer to prevent discrimination by taking proactive steps to ensure compliance, the Code does not refer to pay equity nor does it prescribe any process for developing a compensation model that is Code-compliant.