The Ontario government has lost a second legal appeal, this time with the highest court in the province. The Ontario Court of Appeal decision released June 13, 2022, resoundingly and without hesitation upholds the Human Rights Tribunal of Ontario's (HRTO) finding the government was responsible for discriminating against midwives and must take action to close the gender wage gap."The courts have spoken loud and clear… and three times in a row. Midwives call on the Ford government to act without delay to close the gender wage gap for midwives," Jasmin Tecson, midwife and President of the AOM Board of Directors.
"Midwives have persevered through almost a decade of the Ontario government dragging us through the courts, including during the pandemic. Undervaluing our work undermines the sustainability of midwifery. Midwives want Premier Ford to stop spending tax dollars fighting midwives and to invest in closing the gender pay gap instead. It's time this government uses tools, like evidence-based job evaluations and intersectional gender-based analysis, to value the skills of midwifery work," Tecson.
Pay equity isn't about paying midwives the same as physicians, but about comparing their work by understanding the skills, effort, responsibility and working conditions to eliminate gender bias.
The Ontario Human Rights Commission issued a statement:
Today, in a landmark decision – Ontario (Health) v Association of Ontario Midwives – the Court of Appeal for Ontario confirmed the Human Rights Tribunal of Ontario’s decision that Ontario midwives experienced gender-based discrimination and should be compensated equitably to eliminate the gender wage gap.
The Ontario Human Rights Commission (OHRC) intervened in the Court of Appeal case to defend midwives’ right to pay equity and address systemic discrimination.
The Court of Appeal’s decision affirms that many factors can contribute to systemic discrimination including simply doing things “the way they have always been done” without considering the impact on certain groups. The midwives decision is an important precedent for ensuring equitable treatment of women and other Code-protected groups in the workforce.
Historically, midwifery has been characterized as “women’s work”, and undervalued. On average women earn less than men. In its 2018 decision, the HRTO found that Ontario midwives had experienced systemic gender discrimination in compensation from 2005 to 2013. In 2019, the HRTO ordered the government to take steps to end midwives’ gender wage gap resulting from this discrimination. The government challenged the HRTO decision first to the Ontario Divisional Court and then the Court of Appeal.
The OHRC argued that assessing systemic discrimination requires a flexible and contextual analysis consistent with the Supreme Court of Canada decision in Fraser v Canada (Attorney General). The Court of Appeal agreed that it is important to understand how systemic discrimination occurs and examine all factors at play.
The OHRC’s mandate includes working to eliminate systemic gender discrimination in Ontario. The midwives decision, affirmed by Ontario’s highest court, confirms that unconscious attitudes about the value of work traditionally done by women are hidden and embedded in seemingly neutral compensation policies and practices. Failing to take reasonable steps to proactively monitor, understand and evaluate concerns of discrimination can be a factor supporting a systemic discrimination claim.
“This decision recognizes the need to look at the systemic nature and cumulative effects of policies and conduct on disadvantaged groups,” said OHRC Chief Commissioner Patricia DeGuire. “Duty-holders should proactively monitor for and prevent systemic discrimination which includes ensuring pay equity.”
A copy of the Ontario Court of Appeals decision and further background on the case can be accessed here.
About the Association of Ontario Midwives:
The AOM advances the clinical and professional practice of Indigenous and Registered midwives in Ontario with a vision of midwives leading reproductive, pregnancy, birth and newborn care. There are over 1,000 midwives in Ontario, serving more than 250 communities across the province. Since midwifery became a regulated health profession in 1994, more than 250,000 babies have been born under midwifery care. For more information, visit: https://www.ontariomidwives.ca/midwifery-numbers
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