Case In Point
Ontario Court of Appeal Upholds Human Rights Tribunal Decision Concerning Gender Discrimination in Compensation Practices for Ontario Midwives
Date: June 22, 2022
In Ontario (Health) v. Association of Ontario Midwives, the Ontario Court of Appeal dismissed an appeal by the Ministry of Health and Long-Term Care (Ministry), upholding the finding of the Human Rights Tribunal of Ontario (Tribunal) that the Ministry engaged in gender discrimination in compensation setting practices for midwives.
In this Case in Point, we provide a summary of the Court’s decision and provide some key takeaways for employers.
Background: The Tribunal and Divisional Court Decisions
In 2013, the Association of Ontario Midwives (AOM) brought a human rights complaint on behalf of more than 800 Ontario midwives, alleging systemic gender discrimination by the Ministry. The Tribunal complaint arose after failed compensation negotiations between the AOM and the Ministry, which funds Ontario’s midwifery program.
As we reported in our Case in Point of March 9, 2020, the Tribunal released its decision on liability in 2018, and a separate decision on remedy in 2020. The Tribunal found in favour of the AOM and, among other things, awarded reinstatement of the lost compensation benchmarks and implementation of a 20% wage adjustment retroactive to 2011 for eligible midwives. It also awarded compensation for injury to dignity, feelings, and self-respect, in the amount of $7,500.00 per eligible midwife, along with several other Human Rights Code (Code) compliance-related orders.
In 2020, the Ministry sought judicial review of the two decisions. The Divisional Court held that both decisions were reasonable, declining to interfere with the Tribunal’s findings. (For a detailed summary of the Divisional Court decision, see our Case in Point of July 15, 2020.)
The Court of Appeal Decision
The Ministry appealed the Divisional Court decision to the Court of Appeal raising two issues on appeal:
(i) the Ministry challenged the standard of review in light of the statutory language in the Code purporting to set a patently unreasonable test, and
(ii) whether the Tribunal’s findings on liability and remedy were reasonable.
Standard of Review
In finding that the Divisional Court had identified and applied the correct standard of review, the Court of Appeal confirmed that the Supreme Court of Canada decision in Vavilov is consistent with the reasoning in Shaw v. Phipps, which adopted a reasonableness standard of review for determinations of fact, the interpretation and application of human rights law, and remedial decisions. Notwithstanding the Code’s statutory provision, the Vavilov decision confirmed that courts should presumptively review administrative decisions (e.g. decisions of the Tribunal) on a standard of reasonableness. The Court of Appeal agreed.
The Tribunal’s Decisions Were Reasonable
The Court of Appeal then turned to an assessment of whether the Adjudicator’s decision on liability was reasonable. The Court structured its assessment around a number of key issues raised by the Ministry, and on each issue, the Court held that the Adjudicator’s analysis and conclusions were reasonable.
For example, the Court considered the issue of whether it was reasonable for the Adjudicator to find that gender was a factor in the compensation of midwives. It held that the Adjudicator had properly applied the three-step test for prima facie discrimination as articulated by the Supreme Court of Canada in Moore v. British Columbia (Education) in order to conclude that as a profession made up of almost exclusively women, midwives were members of a group protected by the Code. They had experienced adverse treatment through the Ministry’s abandonment of the 1993 wage setting principles specifically designed to safeguard against gender discrimination.
The Court also found that it was reasonable for the Adjudicator to conclude that community health clinic (CHC) physicians remained the appropriate comparator group. While CHC physicians became female-dominant over time, their compensation had been harmonized to be consistent with the larger group of family physicians, who remained more than 50% male.
Similarly, the Court concluded that while the Adjudicator did not engage in any detailed way with the Ministry’s expert evidence in her reasons, she was justified in doing so. It was not necessary to rely on that evidence for the purposes of liability, and, the Court noted, the Ministry was also unable to point to any expert evidence that could “explain away the central findings of fact that drove the conclusion of discrimination.”
The Court then found no legitimate basis to interfere with the Adjudicator’s remedy. The Court noted that following her 2018 decision, the Adjudicator had provided the parties with an opportunity to sort out the remedy between themselves, without further input from the Tribunal; however, the parties were not able to do so. In asking the Tribunal to determine the remedy, the parties did not present any further evidence from a compensation expert to inform the remedial award. Instead, the parties asked the Tribunal to determine a remedy based on the evidence led at the hearing. The Court found the remedy to be consistent with the evidence that was led at the Tribunal hearing.
As the Court of Appeal noted, the Tribunal found that the Ministry was not required to engage in any particular strategy to monitor, identify and redress discrimination in midwives’ pay; however, the Adjudicator did find that the Ministry was required to take steps that were effective and proportional to its obligations under the Code to both prevent and remedy discrimination.
The decision serves as an important reminder that employers may face substantial liability where it is determined they have failed to address historical wage inequities in the workplace. In this case, the Ministry’s failure to take proactive steps to address and prevent gender discrimination and to maintain pay equity, contributed to the Tribunal’s finding of discrimination.
The decision also underscores the need for employers to proactively monitor pay equity (for which there already exists a statutory obligation to achieve and maintain for most employers with greater than 10 employees). In particular, in industries made up of “sex-segregated” workers or female predominate job classes, ensuring compensation systems, policies and practices are reviewed through a gender neutral lens is critical in mitigating future potential liability.
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