Last month, the Ontario Human Rights Tribunal issued an historic decision. The Tribunal ruled that the Ontario government has been discriminating against Ontario midwives since 2005 on the basis of sex as a result of the difference between the compensation paid to midwives and Community Health Care Clinic (CHC) physicians. What happens next remains to be seen.
Background: Regulation of Midwifery
Midwifery became a regulated health profession in Ontario in January 1994. Since then, women in Ontario with normal or low-risk pregnancies have had the option of choosing an autonomous, publicly-funded midwife as the primary-care provider for themselves and their newborns.
In 1993, leading up to regulation, the Association of Ontario Midwives (AOM) and the Ontario Ministry of Health and Long-Term Care (MOH) entered into a compensation agreement based on non-discriminatory principles and methodology. In accordance with these, funding for midwives was placed in between senior nurses and CHC physicians.
Midwifery has always been strongly identified with women’s work. As the Tribunal acknowledged, midwifery is “a gender trifecta of services provided by women, for women, in relation to women’s reproductive health”.
Both physicians and midwives in Ontario have been affected by long periods of wage freeze (physicians from 1992 to 2003, and midwives from 1994 to 2005). However, the MOH took a discriminatory approach to these two groups when it came to addressing that issue. While the MOH has been investigating and monitoring CHC physician compensation levels since 1999, they took no such proactive steps when it came to midwives.
Notably, in 2010, external consultant Courtyard Group was hired to examine midwifery compensation and recommend changes as appropriate. The resulting report recommended a 20% increase in midwives’ compensation. Despite this, the MOH made no changes to midwives’ pay.
In its decision, the Tribunal affirmed the proactive nature and purpose of the Ontario Human Rights Code.
Specifically, it explained that the Code is not solely reactive and complaint-based. Rather, it is intended to transform social relations and institutions to secure substantive equality in practice. As such, the MOH was obligated to act proactively, monitor workplace culture and systems, take preventative measures to ensure equality, identify and remove barriers, and take positive steps to identify and remedy the adverse effects of practices and policies that appear neutral on their face.
The MOH promotes midwives and physicians as equally competent providers of maternity care who provide those services based on different models of care. As a result, the Tribunal rejected the MOH’s arguments that CHC physicians are not appropriate comparators for midwives because of differences in the two groups’ work, education and training.
In a lengthy, thoughtful decision, the Tribunal ultimately concluded that:
- Ontario midwives have, since 2010, attempted to negotiate in a context where the MOH no longer abides by the foundational principles established in 1993 or recognizes the effects of gender on compensation. This perpetuates the historic disadvantages midwives have experienced as sex-segregated workers, undermines their dignity, and is a denial of substantive equality.
- While the MOH and AOM are entitled to negotiate a new approach to compensation, by unilaterally withdrawing from the 1993 principles and methodology, the MOH exposed midwives to the effects of gender discrimination on women’s compensation.
- Ontario midwives experienced adverse treatment by the MOH. Sex was more likely than not a factor in the treatment they experienced and the gap between midwives’ and physicians’ compensation.
The Tribunal did not rule on the appropriate remedy for this discrimination. Instead, it recommended that the AOM and MOH take some time to reset their relationship, use the 1993 funding principles to determine the appropriate level of compensation and general damages, and develop a methodology for maintaining appropriate and fair compensation for midwives going forward.