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Sep 26, 2018

Historic Pay Equity Win for Association of Ontario Midwives at Human Rights Tribunal of Ontario

On September 24, 2018, the Human Rights Tribunal of Ontario ("HRTO") issued a landmark ruling in the Association of Ontario Midwives' ("AOM") pay equity complaint: Association of Ontario Midwives v. Ontario (Health and Long-Term Care), 2018 HRTO 1335. In an historic win for Ontario midwives, the HRTO held that for over a decade Ontario's Ministry of Health and Long-Term Care (the "Ministry") had discriminated against midwives on the basis of their sex with respect to their compensation and funding formula. The HRTO found that both the Ministry's conduct and inaction resulted in a significant compensation gap between midwives and physicians who provide comparable services, and amounted to impermissible systemic discrimination against midwives based on their sex.

The AOM argued that midwifery represents a gender "trifecta" of services provided by women, for women, in relation to women’s reproductive health within a model of care that supports women’s empowerment and choice. The AOM further argued that the government must take proactive steps to ensure that midwives' labour is not devalued on account of their gender. The HRTO agreed.

The HRTO further agreed with the AOM that the Ministry had violated the midwives' right to equal treatment without discrimination on the basis of sex by:

(1)      Failing to take proactive steps to prevent a significant and inequitable compensation gap for midwives in Ontario, an historically disadvantaged and almost exclusively female profession vulnerable to compensation discrimination;

(2)      Providing unequal and discriminatory compensation to midwives which served to undervalue their work and contributions; and

(3)      Actively refusing to take any reasonable steps to investigate and remedy the systemic gender discrimination in midwives' compensation when the issue was squarely raised by the AOM over the years.  

The HRTO found the Ministry was in violation of the Human Rights Code, as sex was more likely than not a factor in the above adverse treatment from 2005 to the present.  In holding that the unequal compensation violated the Code, the HRTO found that the Ministry failed to fulfill its obligation to monitor the midwives' compensation (as it had for non-sex-segregated health professionals such as doctors) to ensure their compensation was fair and not impacted by gender discrimination. The HRTO further found that the Ministry's delays and the procedural deficiencies in the manner it negotiated midwives' compensation over the years contributed to the discriminatory compensation treatment. The Ministry's conduct was found to "perpetuate[] the historic disadvantage midwives have experienced as sex-segregated workers" and "undermine[] their dignity". The HRTO has deferred its ruling on remedy.

This case represents an important win not just for midwives in Ontario, but for other sex-segregated workers and equity-seeking groups who face systemic discrimination in Ontario and across Canada. The success of this case was the result of many years of dedication and hard work from the Association of Ontario Midwives and its members and their legal team at Cavalluzzo, which included many staff members and the following lawyers: Mary Cornish, Jennifer Quito, Lisa Leinveer, Adrienne Telford and Shaun O'Brien. On behalf of Cavalluzzo, we congratulate the AOM and midwives on this significant and hard-fought win. It has been a privilege to represent you.  

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