Closing the gap: Understanding Ontario midwives’ legal action

Collage of photos from Ontario midwives' pay equity action over the past decade

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Overview

Ontario midwives are publicly funded primary health-care providers who are specialists in providing around-the-clock, on-call care for clients throughout pregnancy, labour and birth and the first six weeks after birth. Midwives follow clients/patients between community and hospital, depending on their needs.

When midwifery was regulated in Ontario in 1994, the AOM and the Ministry of Health (MOH) carried out a rough pay equity analysis which resulted in a relative positioning of midwifery work against the lowest paid physician in a community health centre (CHC). The CHC physician was a comparator because of the overlapping scope of practice. At the time, the gap between midwives and CHC physicians was $3,000. By 2010, this gap had grown to over $100,000.

Like most physicians, most midwives are also independent contractors, and as such they do not fall under the protection of the Pay Equity Act, as employees do. To seek redress for gender discrimination, the Association of Ontario Midwives filed an application to the Human Rights Tribunal of Ontario (HRTO) in 2013.

HRTO hearings began in June 2016, and the final evidence concluded in April 2017. In 2018, the HRTO issued an interim decision (PDF 364 KB) finding in favour of Ontario Midwives that the Ontario government is liable for discriminatory compensation-setting practices. This was followed by concrete and specific remedy orders (PDF, 612 KB) in February 2020 to end the discrimination. This decision was upheld (PDF, 755 KB) by Ontario's Divisional Court in response to government's application for a judicial review. The government later applied for, and was granted, a leave to appeal the Divisional Court decision at the Ontario Court of Appeals (OCA).

In April 2021, the AOM's legal team, led by Mary Cornish, Adrienne Telford and Lara Koerner-Yeo, submitted a factum (PDF, 825 KB) to the OCA, which lays out the facts of the Ontario midwives' case. The case was heard on November 10, 2021 and is summarized here. Notably, the Ontario Human Rights Commission acted as an intervenor in the appeal. The OCA released its decision, again in midwives' favour, in June 2021.

Today, midwives continue to experience a significant gap. Even with the 20% HRTO-ordered adjustment of 20% as of April 1, 2020, there exists a $126,000 gap between the top level midwifery earnings and the entry level earnings of CHC physicians.

What is happening now?

In late August 2022, government informed the AOM that it will not seek leave to appeal the OCA decision at the Supreme Court of Canada. This means that the original HRTO decisions and subsequent appeal decisions in midwives' favour stand.

The AOM and the MOH continue to work through a court-ordered facilitated process to implement remedies, both monetary and structural, to close the gender pay gap for midwives. This work is multifaceted and includes:

  • a pay equity adjustment of 20% in the 2020-2023 funding agreement for independent contractor midwives
  • calculation and disbursement of retro pay back to 2011 for all eligible Applicant independent contractor midwives
  • a joint compensation study for independent contractor midwives to ensure compensation is free from gender bias or discrimination
  • a gender-based analysis of ministry policies and practices related to the compensation of midwives

Each layer of this work necessitates a deep dive into the existing and complex pay structures for midwives to ensure an informed and rigorous process. Some equity adjustments are also being applied to midwives working in employee models.

On June 13, 2022 the Ontario Court of Appeal released its decision. The OCA ruled in favour of midwives, dismissing government's arguments and upholding the previous decisions of the Divisional Court and the HRTO.

What is a joint compensation study (JCS)?

The HRTO ordered that the AOM and MOH participate in a joint compensation study, “which will cover the period from 2014 to 2020, and will serve as a baseline for reinstating the benchmarks. After the first compensation study is completed, it will be updated prior to each new round of negotiations.” The study must include a ‘skills, experience, responsibilities and working conditions’ (SERW) analysis “and account for the specialized and autonomous nature of the work of midwives and their onerous on-call duties, among other things; the 1993 principles and methodology; [and] the comparators set out in the Courtyard report.”

Marianne Love, a principal with ML Consulting, which specializes in pay equity, job evaluation and compensation, was retained to conduct the JCS study.

The JCS was due to be completed by July 2021 but has been significantly delayed due to a range of factors. The study will be non-binding; however, the AOM will continue to work diligently to ensure that the government adheres to its findings. The AOM is also advocating for employee midwife models (Indigenous Midwifery Program; Expanded Midwifery Care Models) to be included in a future study that can specifically analyze the SERW of each of the distinct employee midwife roles.

What is a gender-based analysis (GBA)?

GBA has been used by a diverse range of organizations and levels of government, including the Canadian Federal government, to analyze and improve policies and practices to achieve gender equality. This YouTube video offers an excellent primer on the topic.

As part of the HRTO’s remedy ruling, the Adjudicator found that "the evidence[...] established that the MOH did not recognize the relationship between gender and compensation paid to midwives or the necessity to consider the effects of its policies and practices on midwives as sex-segregated workers." As a result, she ordered that the MOH "work with an expert[…] to implement a gender-based analysis (“GBA”) which will assess the gender impacts of the policies and practices associated with compensating midwives working as independent contractors and compensated by the MOH."

This work is a key part of the HRTO's ruling. The MOH has repeatedly argued that they had no obligation to perform any kind of gender-based analysis on the methods for setting midwives' compensation over the years.

The MOH retained Canadian Equality Consulting to conduct a GBA+ of their policies and practices related to midwifery compensation. The AOM provided information and numerous submissions to Canadian Equality Consulting, with a focus on the intersectional impacts of ministry policies related to Indigenous midwifery, disability, race, and the clinical audit tool for midwives trained outside of Canada. The AOMBT made a submission regarding the parental leave program.

On November 18, 2021, after over two months of delay, the Ministry shared a summary of the GBA+ assessment report (login required; PDF, 140 KB) with the AOM. The AOM was critical of the summary, and continued to call on ministry to release the full report with detailed findings. As ministry refused, the AOM was forced to file a Freedom of Information (FOI) request. In March 2022, the AOM received the full GBA+ report, which can be accessed here (Applicants only, login required).