This is a huge victory for midwives and for pay equity — this acknowledgment of the invisibility of work that is associated with women, and the undervaluing of work that is associated with women.
Court tosses province’s request for review of pay-equity order
In a decision hailed as a victory for midwives, the Ontario Divisional Court has dismissed the province’s request for a judicial review of a landmark pay-equity ruling made by Ontario’s human rights tribunal earlier this year that ordered the province to retroactively boost midwives’ pay.
“This is a huge victory for midwives and for pay equity — this acknowledgment of the invisibility of work that is associated with women, and the undervaluing of work that is associated with women,” said Juana Berinstein, acting director of the Association of Ontario Midwives. “It’s been profoundly validating, and it has been a really long journey.”
In a 59-page decision released Friday, a three-judge panel said it was not persuaded by the government’s arguments that the tribunal’s findings were “unreasonable” and should be overturned.
The decision notes that the government mischaracterized the history of compensation negotiations and fails “to engage with the allegations of adverse gender impacts on midwives and ignore the systemic dimensions of the claim.”
A spokesperson for the Ontario Ministry of the Attorney
General wrote that they are “carefully reviewing the decision.”
“As the matter is within the appeal period it would be inappropriate to comment further,” spokesperson Jenessa Crognali said in an emailed statement.
In 2013, the Association of Ontario Midwives applied to the Human Rights Tribunal of Ontario alleging that the compensation determined by the Ministry of Health and Long Term Care was discriminatory on the basis of sex.
Prior to that, the association’s research had shown that there was a compensation gap between midwives and community health-care physicians. A third-party report commissioned by both the government and the midwives recommend a 20 per cent increase in compensation to address that gap.
In an interim finding in 2018, the tribunal noted that the midwifery profession has been chronically undervalued because it is primarily staffed by women, provides care to women, and deals with pregnancy, a health-care issue associated with women.
In February of this year, the tribunal found the government liable for discriminatory compensation practices, and made a ruling ordering a retroactive 20 per cent pay increase covering 2011 to 2015.
The ruling also awarded eligible midwives a $7,500 payment for “injury to dignity, feelings and self-respect.”
Berinstein said the tribunal also determined that a pay-equity analysis was needed to determine appropriate pay from 2015 onwards.
“We know that there is a much bigger gap than 20 per cent, so we’re expecting that the retroactive pay over the last five years is going to be much bigger than 20 per cent, and that would also adjust salary going forward,” she said. The Ford government appealed the tribunal ruling this April. While Friday’s decision dismissed the request for a judicial review, the battle could continue; Berinstein said the government has 10 days to implement the remedies or respond with an appeal.
“The tribunal provided clear orders and a clear road map for how to close the gender pay gap, and so we are urging the Ford government to stop fighting midwives in court and to instead close the gender pay gap,” she said.
Jasmin Tecson, who has been a midwife in Toronto for 14 years, was “absolutely thrilled” with Friday’s decision, which she called vindicating, affirming and long overdue.
“All of these decisions — there’s four of them in our favour — all say that the government has a responsibility to correct gender discrimination of midwives,” she said. “Midwives have more than earned pay equity.”
“It’s been profoundly validating, and it has been a really long journey.”
JUANA BERINSTEIN ASSOCIATION OF ONTARIO MIDWIVES