In landmark legal decisions in 2018 (Liability Decision) and 2020 (Remedy Decision), the Human Rights Tribunal of Ontario (HRTO) found that the Ontario government had systemically discriminated against midwives on the basis of their gender when setting their compensation. The HRTO ordered the Ontario government to take concrete actions to end the gender pay gap experienced by midwives, including a compensation adjustment of 20%, retroactive to 2011, and a series of proactive remedies to ensure midwives' compensation is set free of systemic gender discrimination going forward. The Ontario government filed for a judicial review of the HRTO rulings, which was heard in Divisional Court in April, 2020. In June 2020, the Divisional Court unanimously ruled to uphold the decisions of the HRTO, finding that the government of Ontario had mischaracterized the history of compensation negotiations with the Association of Ontario Midwives, failed to engage with the allegations of adverse gender impacts of its actions and omissions on midwives, and ignored the systemic dimensions of the midwives' human rights claim.
The Association of Ontario Midwives was represented by Mary Cornish, Adrienne Telford and Lara Koerner Yeo.
This historic win sets a precedent to change compensation practices not only for midwives, but for all workers in predominantly female jobs and professions. It advances human rights jurisprudence by making it resoundingly clear that an employer or compensation setter cannot ignore gender when setting compensation levels for predominantly female workers, including employees and contractors not covered by the Pay Equity Act. Instead, they must act proactively to ensure at the outset that their compensation setting practices adopt a gender-based analysis which takes into account the pervasive systemic factors which continue to make invisible and to undervalue work associated with women.