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Court File No. M51703
COURT OF APPEAL FOR ONTARIO
B E T W E E N:
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO AS
REPRESENTED BY THE MINISTER OF HEALTH AND LONG-TERM
CARE
Applicant
(Moving Party)
and
ASSOCIATION OF ONTARIO MIDWIVES and HUMAN RIGHTS
TRIBUNAL OF ONTARIO
Respondents
(Responding Parties)
FACTUM OF THE RESPONDENT (RESPONDING PARTY), ASSOCIATION OF
ONTARIO MIDWIVES
(Motion for Leave to Appeal)
October 2, 2020
CORNISH JUSTICE SOLUTIONS
355 St. Clair Avenue West, Suite 2105
Toronto, ON M5P 1N5
Mary Cornish, LSO# 15908J
Tel: 416-576-3851
CAVALLUZZO LLP
474 Bathurst Street, Suite 300
Toronto ON M5T 2S6
Adrienne Telford, LSO# 56169T
Tel: 416-964-5548
Lara Koerner Yeo, LSO# 75765B
Tel: 416-964-1115
Fax: 416-964-5895
Lawyers for the Respondent (Responding
Party), Association of Ontario Midwives
1
4812-2227-7581, v. 1
TO: MINISTRY OF THE ATTORNEY GENERAL
Constitutional Law Branch
720 Bay Street, 4th Floor
Toronto ON M5G 1J5
Zachary Green, LSO# 48066K
Tel: 616-992-2327
Courtney Harris, LSO# 48418P
Tel: 416-455-5186
Yashoda Ranganathan, LSO# 57236E
Tel: 416-637-0883
Fax: 416-326-4181
Lawyers for the Applicant (Moving Party), Her Majesty the Queen In Right of
Ontario as represented by the Minister of Health and Long-Term Care
AND TO: TRIBUNALS ONTARIO
Legal Services
655 Bay Street, 14th Floor
Toronto ON M7A 2A3
Jason Tam, LSO# 56960V
Tel: 647-278-3247
Brian A. Blumenthal, LSO# 374571P
Tel: 416-709-6968
Fax: 416-314-2379
Lawyers for the Respondent (Responding Party), Human Rights Tribunal of Ontario
TABLE OF CONTENTS
PART I: OVERVIEW ............................................................................................................ 2
PART II: FACTS ...................................................................................................................... 6
A. The Midwifery Gender Trifecta And Development of 1993 Equity Tool .......... 6
B. Gradual Loss of Equity Tool ................................................................................ 10
1. Regulation (1994-2005) Prior to Loss of Equity Tool ............................... 10
2. AOM Equity Requests, 2008-2011 Agreement And Commitment to
Study .............................................................................................................. 11
3. Courtyard Compensation Review And Report ......................................... 12
C. Proceedings Before Tribunal ................................................................................ 14
D. Proceedings Before Divisional Court ................................................................... 17
PART III: ISSUES AND LAW ............................................................................................... 20
A. Issue 1 – Standard of Review Properly Interpreted and Applied ..................... 21
B. Issue 2 – Proactive Duty to Prevent Discrimination is Settled Law.................. 25
C. Issue 3 – Tribunal and Court Properly Applied Burden of Proof .................... 28
D. Interests of Justice Favour Denying Leave to Appeal ........................................ 30
PART IV: ORDER REQUESTED ......................................................................................... 30
Court File No. M51703
COURT OF APPEAL FOR ONTARIO
B E T W E E N:
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO AS
REPRESENTED BY THE MINISTER OF HEALTH AND LONG-TERM
CARE
Applicant
(Moving Party)
and
ASSOCIATION OF ONTARIO MIDWIVES and HUMAN RIGHTS
TRIBUNAL OF ONTARIO
Respondents
(Responding Parties)
FACTUM OF THE RESPONDENT (RESPONDING PARTY),
ASSOCIATION OF ONTARIO MIDWIVES
2 4812-2227-7581, v. 1
PART I: OVERVIEW
1. The Respondent, the Association of Ontario Midwives (“AOM”), opposes this motion brought
by Ontario as represented by the Minister of Health (“MOH”). The MOH seeks leave to appeal from
the Divisional Court decision unanimously dismissing the MOH’s application for judicial review of
two decisions of the Human Rights Tribunal of Ontario (“Tribunal”) (2020 ONSC 2839 (“Decision”)).
The Divisional Court held that the Tribunal reasonably found that the MOH had systemically
discriminated against midwives on the basis of gender in setting their compensation since 2005 contrary
to sections 3, 5, 9, 11 and 12 of the Human Rights Code (“Code”).
Ontario v Association of Ontario Midwives (“AOM”), 2020 ONSC 2839, [11,
113, 169, 196] (“Decision”); AOM v Ontario, 2018 HRTO 1335 (“Liability
Decision”); AOM v Ontario, 2020 HRTO 165 (“Remedy Decision”); Human
Rights Code, RSO 1990, c H 19, s 5 (“Code”)
2. It is well-established that systemic gender discrimination in compensation (“SGDC”) is an
ongoing, pervasive factor affecting the compensation of work associated with women in Ontario,
by rendering “invisible” and undercompensating labour associated with women’s work. Systemic
factors have led to occupational sex segregation in the labour market, where women are
concentrated into professions which are less valued and lower paid than male-dominated
professions. Midwifery is the most extreme example of such occupational sex segregation. Subject
to a gender trifecta, midwives are not only predominantly women, they also “provid[e]
reproductive care to [pregnant people] and their newborns, in an area of health care that was once
dominated by male physicians”.
Decision, [4, 19]; Liability Decision [247, 232]
3. Leading up to the regulation of midwifery in 1994 and the establishment of the Ontario
Midwifery Program (“OMP”), the MOH and AOM recognized the historic sex-based disadvantage
and unequal treatment of midwives within the health sector, their acute vulnerability to SGDC as
3 4812-2227-7581, v. 1
a predominantly female profession, and their historical suppression by the male dominated medical
profession. The parties jointly developed a compensation setting methodology or "Equity Tool",
which included funding principles and compensation benchmarks that ensured midwives'
compensation was free of sex-based discrimination. The Equity Tool used a gender-sensitive lens
to objectively compare the value of nursing, midwifery, and family physicians’ work based on the
skill, effort, responsibility and working conditions (“SERW”) and to relatively position the
compensation of midwives between that of senior nurses and family physicians employed at
Community Health Centres (“CHCs”). The positioning accounted for midwives’ overlapping
scope of practice with CHC physicians who were used as a male comparator as they were male
predominant at the time and ensured that midwives would not be positioned too closely with nurses
who were female predominant. The Tribunal found that the compensation setting methodology (or
Equity Tool) was properly viewed by the parties as a pay equity exercise.
4. Since regulation, the MOH has gradually abandoned the Equity Tool, including the use of
the CHC physician as an appropriate comparator. Between 2005 and 2010, the MOH ignored the
AOM's concerns about an increasing pay gap between midwives and CHC physicians. In 2010,
when the parties conducted their first joint compensation study since 1993 (the Courtyard report),
it confirmed the ongoing relevance of the funding principles and CHC physician comparator and
recommended a 20% equitable adjustment to midwives’ compensation to address the pay gap.
5. The MOH rejected the Courtyard report’s recommendations and instead froze midwives’
pay at inequitable levels. The MOH did so despite having the ability to exempt human rights
adjustments from the compensation restraint law and policy. By 2011, midwives were having to
negotiate in an environment where the MOH refused to recognize the “negative impact of gender
on their compensation” and the need for a gender-sensitive approach to prevent SGDC. The MOH
4 4812-2227-7581, v. 1
not only rejected the Equity Tool that had previously ensured midwifery compensation was free
from sex-based discrimination, but it replaced it with no alternative Code-compliant methodology
and refused to take seriously and investigate the midwives' pay equity concerns.
Decision [7-9, 137]; Liability Decision, [196, 207-08, 297, 303, 307]; Remedy
Decision, [7, 34, 140-41]
6. The AOM filed a human rights application with the Tribunal in 2013. After hearing from
over 40 expert and non-expert witnesses over 50 hearing and special examiner days, and after
considering an evidentiary record that exceeds 69,000 pages, the Tribunal concluded that “the
systemic and cumulative effects on midwives’ compensation of the MOH’s policies and conduct
after 2005 and particularly following the release of the Courtyard report were a clear breach of the
Code”. The Tribunal rejected the MOH's gender-avoidant approach to compensation setting,
underscoring that it is settled law that obligation holders under the Code have a proactive duty to
prevent discrimination and ensure that compensation is set free of systemic gender bias. The
Tribunal found on a “balance of probabilities and on the totality of the evidence…that midwives
experienced adverse treatment and that sex is more likely than not a factor in the treatment they
experienced and the compensation gap that has developed between midwives and CHC physicians
since 2005”. The Tribunal ordered several remedies, including that the MOH implement the 20%
equitable adjustment recommended by the Courtyard report retroactive to April 1, 2011.
Decision, [9, 75, 114, 182-96]; Liability Decision, [12-16, 309, 315-324];
Remedy Decision, [57-63, 105]
7. On judicial review, the MOH asked the Divisional Court to effectively engage in a
wholesale reassessment of the extensive evidentiary record and overturn the Tribunal’s factual
findings and legal reasoning by adopting its "gender-avoidant" arguments. The Court unanimously
rejected the MOH’s application. The Court extensively reviewed the factual and legal context in
which the Tribunal made its decisions and found that the Tribunal reasonably concluded that
5 4812-2227-7581, v. 1
gender was a factor in the adverse treatment experienced by midwives, which resulted from the
systemic nature and cumulative effect of the MOH’s policies and conduct over time, and that there
was sufficient evidence upon which the Tribunal based its findings. The Court found the MOH’s
gender-avoidant arguments to be “disingenuous” and to “miss the point”, as they “mischaracterize
the history of compensation negotiations with the AOM, fail to engage with the allegations of
adverse gender impacts on midwives and ignore the systemic dimensions of the claim”.
Decision, [11-12, 13-73, 113, 117, 119-120, 146, 196, 232]
8. At issue before this Court is whether the MOH’s leave to appeal should be granted. In
seeking leave, the MOH asserts three issues: that the Divisional Court misarticulated and
misapplied the reasonableness standard and that the Tribunal erred both in finding that there is a
proactive duty under the Code to prevent discrimination and in reversing the burden of proof.
9. The AOM submits that leave ought to be denied. Contrary to the MOH's assertions, the
public interest is not served by permitting the MOH to use up scarce Court of Appeal resources to
once again make arguments which have been decisively, unanimously and comprehensively
rejected by both the Divisional Court and the Tribunal. As described below, the MOH's request
for leave continues this practice of mischaracterizing evidence and findings and applying a narrow
formal equality, gender avoidant approach which ignores, decontextualizes and misstates a
complex, systemic factual and discriminatory context.
10. The MOH’s issues are largely iterations of the same meritless arguments that were rejected
below. They are not issues of general public importance; nor do they present an arguable case.
This Court has already considered the application of the reasonableness standard post-Vavilov to
decisions of administrative decision-makers and need not grant leave to do so again here. Further,
this Court should not entertain the MOH’s position that it has no duty to proactively monitor and
prevent systemic gender discrimination in the setting of midwives’ compensation. The proactive
6 4812-2227-7581, v. 1
duty to prevent and remedy discrimination is well-established under the Code, substantive equality
jurisprudence, as well as in Ontario Human Rights Commission (“OHRC”) policies. The MOH’s
attempt to overturn this established duty is not a matter of public importance; in contrast, the MOH
complying with the duty in a timely fashion is. The MOH also advances a reversal of the burden
of proof argument which was rejected by the Tribunal and the Divisional Court in accordance with
this Court's established jurisprudence. Far from reversing the burden of proof, the MOH did not
adduce sufficient evidence to rebut the prima facie case of discrimination established by the AOM.
11. Furthermore, granting leave in these circumstances would result in a denial of timely and
accessible human rights justice for midwives in Ontario. Midwives should now be able to expect
certainty and finality with respect to their right to compensation free of sex discrimination.
Contrary to the MOH's assertion, the development and enforcement of Ontario law will be best
served by denying leave and permitting those protected by and governed by the Code to proceed
with clarity concerning the securing of substantive compensation gender equality.
PART II: FACTS
12. In this motion, the MOH largely ignores the Tribunal’s and Divisional Court’s extensive
review of the relevant factual findings which underpin the Tribunal’s finding of discrimination.
This continues its approach throughout these proceedings of ignoring the systemic and gendered
circumstances of the midwives’ adverse treatment, which are summarized below.
A. The Midwifery Gender Trifecta and Development of 1993 Equity Tool
13. As Ontario’s most exclusively female and sex-segregated profession, the Tribunal found
that midwifery is so clearly identified with and inseparable from gender that the profession itself
takes on the protected characteristic of sex, and that the Code’s s. 12 is engaged because of the
association of midwives with women and reproductive care for women/pregnant people. As a
result of this sex-segregation, midwives have long experienced systemic gender disadvantages,
7 4812-2227-7581, v. 1
including the denigration and devaluation of their work and its contributions to women/pregnant
people, their families and the health system, in contrast to systemic advantages afforded to the
male predominant medical profession.
Decision, [15, 19]; Liability Decision, [61, 67, 78-79, 242]
14. The parties' history leading up to the regulation of midwifery in 1994 showed a
compensation-setting process that was “imbued with gender” and sensitive to SGDC and the need
for a proactive effort by the parties to prevent systemic sex discrimination in the compensation of
midwives. The funding principles “worked against the prevailing stereotypes about midwifery
work and its association with women” and ensured that midwives’ compensation was
appropriately relatively positioned , with the then predominantly male CHC physician comparators
as opposed to positioned with “exclusively female-dominated health care professions”.
Decision, [19, 25, 27-34]; Liability Decision, [274, 281]; Remedy Decision, [5]
15. In 1993, the Women’s Health Branch developed an “Options Paper” to inform the government’s
OMP framework. The Options Paper, as approved by the Assistant Deputy Minister, emphasized the
“necessity” of establishing “a fair and equitable pay level [for midwives] based on pay equity, reflecting
responsibilities, working conditions and level of education”.
Decision, [25]; Liability Decision, [91-98]; McHugh, "Midwifery Payment – An
Options Paper," (1992), Motion Record of the Applicant (Moving Party)
(“MPMR”), Vol 12 (“V12”), Tab 5(98) (“T5(98)”), p 3853 [Emph. added]
16. 1993 Morton Report. In 1993, the MOH and AOM formed a Joint Working Group to determine
an “appropriate and fair compensation level” for midwives, led by compensation specialist Robert
Morton. The Morton report, the parties’ first joint compensation study, set out “systematic and careful
research” into how the SERW of midwifery compared to the SERW of related health professions in
order to inform the relative positioning of midwifery job requirements and compensation. As a result,
the parties agreed senior nurses (now Nurse Practitioners or “NPs”) and CHC physicians were the
8 4812-2227-7581, v. 1
appropriate comparators and adopted an equitable formula for positioning midwives between those
comparators. CHC physicians were male predominant at the time and were used as an appropriate male
comparator. CHC physicians shared the same community-based health care approach as midwives and
the same MOH department was responsible for setting the compensation of CHC physicians, nurses
and midwives. Senior Nurses, who were female predominant, were used as comparators to ensure that
midwifery work was not obscured by their too close association with female predominant nursing work.
Decision, [28-33, 36]; Liability Decision, [89, 103]; Morton Report, Motion
Record of the Respondent (Responding Party) (“RR”), Tab 1 (“T1”), p 4-6;
Affidavit of Jane Kilthei, para 226-231, 237-239, 276, MPMR, V5, T5(1), p
1190-91, 1193, 1202 [“Kilthei Aff”]; MOH, "Primary Position Comparisons
[between Midwives, Nurses and Physicians],” MPMR, V12, T5(95), 3831-3838
[Primary Position Comparisons]; MOH Principles of Funding (1993), MPMR,
V4, T4(83), p 988-990
17. Midwives and family physicians are both autonomous primary health care providers.
Midwives have a similar scope of practice with family physicians for providing care for low risk
pregnancies, both referring high risk pregnancies to obstetricians. Family physicians provide such
care through a physician/nurse model. Midwives have a different “specialist” model of care
comprising continuity of care, informed choice, and choice of birthplace, having assumed the work
for low risk pregnancies which was once the exclusive domain of physicians and obstetricians.
Midwives provide care for all three phases of low risk pregnancies (pregnancy, intrapartum (labour
and delivery), and postpartum up to 6 weeks after delivery), which are estimated to be 70-80% of
births in Ontario. Midwives are the only care providers who attend births at home or in out of
hospital birthing centres. CHC physicians, with few exceptions, do not provide intrapartum care.
Decision, [5, 21, 46, 49]; Liability Decision, [47-51]; College of Midwives
Practice Standard, Midwifery Model of Care (2013), MPMR, V11, T5(72), p
3423-24; Kilthei Aff., para 31, MPMR, V5, T5(1), p 1141
18. The Joint Working Group documents specifically connected “pay equity” with the SERW
factor analysis of midwives’ work. The Tribunal found that the compensation setting process
9 4812-2227-7581, v. 1
which resulted in the Morton Report was accurately described as a “pay equity exercise”.
Decision, [26-28, 31]; Liability Decision, [103-4, 110, 119, 278]; Morton
Report, RR, T1, p 5-6, 28-29; Primary Position Comparisons, MPMR, V12,
T5(95), 3831-3838; Kilthei Aff., para 215, 218, 224-226, 237-39, 248-50,
MPMR, V5, T5(1), p 1188-91, 1193, 1196
19. Following the development and application of the funding principles, the parties agreed to a
salary range of $55,000 to $77,000 as the equitable positioning of midwives. The compensation gap
between the most experienced midwife and the lowest paid CHC physician was $3,000. The most senior
midwife earned $21,000 more than the most experienced CHC Senior Nurse. The Tribunal noted the
“power” of the parties’ funding principles, which led to Code compliant compensation at $57,000 more
than an experienced midwife earned pre-regulation, and made visible midwives’ work by setting their
compensation in line with their SERW.
Decision, [37]; Liability Decision, [28-29, 99, 111]; Morton Report, RR, T1, p
4; Hay Health Care Group, AOM: Compensation Review, (Feb/04), MPMR, V7,
T5(18), p 1666-67 [Hay Report]; see AOM Factum at Appendix 1: Male
Predominance of Ontario Physicians (1978-2013) and Compensation Gap
between Midwives and Comparators, 1992-2013 [Appendix 1]
20. The parties’ gender-sensitive funding principles were clearly reflected in the Morton
Report, the parties joint OMP Framework, and the 1993 Cabinet Submission. They contained the
following key elements:
(a) A “proactive” approach informed by a ‘gender lens’;
(b) Collaborative and regular negotiations between the parties;
(c) Evidence based methodology using a SERW pay equity analysis;
(d) Use of a male comparator, the CHC physicians;
(e) Relative positioning of midwives in the CHC Physician/Nurse hierarchy;
(f) Comparisons to the “same economic market”;
(g) Positional bargaining after SERW analysis permissible;
(h) Identification and closure of any unfair compensation gap;
10 4812-2227-7581, v. 1
(i) Fiscal constraints considered after equity achieved; and
(j) Proactive and regular joint monitoring to ensure equitable compensation.
Decision, [e.g. 32, 35, 38]; Liability Decision, [112-6]; Morton Report, RR, T1,
p 4-31; Ontario Midwifery Program Framework, MPMR, V4, T4(86), 1060-
1070; Ontario Midwifery Program Cabinet Document, MPMR, V4, T4(85), p
1024-1059; Kilthei Aff., para 208-289, MPMR, V5, T5(1), p 1187-1216
21. On January 1, 1994, 67 Ontario midwives began providing regulated midwifery services
funded based on the Code compliant compensation set by applying the funding principles. New
agreements followed in 1999, 2005, 2009, 2013 and 2017, the final two being reached without
prejudice to the AOM’s 2013 Tribunal Application.
Decision, [4-5, 7, 37, 40-1, 63]; Liability Decision, [1, 18, 56-57, 122, 125, 165]
B. Gradual Loss of Equity Tool
22. The Tribunal found that the MOH gradually and then by 2010 fully abandoned the funding
principles in setting midwives’ compensation and by too closely positioned them to NPs. During the
same period, the MOH provided substantial compensation increases to CHC physicians leading to a
substantial compensation gap between midwives and their male comparators.
Decision, [58, 114, 120]; Liability Decision, [133-142, 294, 297, 324]
1. Regulation (1994-2005) Prior to Loss of Equity Tool
23. MOH Increases CHC Physician Compensation. To meet health reform objectives, the
MOH started in the late 1990’s to substantially increase the compensation paid to non-CHC family
physicians. At the same time, CHC physician pay remained frozen, leading to recruitment and
retention issues. The MOH increased CHC physician compensation as of April 1, 2003, resulting
in a compensation gap of $33,599 between CHC physicians and top-level midwives rather than
the $3,000 gap at regulation. Midwives were now earning merely $3,000 more than top-level NPs.
Decision, [56, 71, 114, 188]; Liability Decision [137, 141-42]; Hay Report,
MPMR, V7, T5(18), p 11868-11871; Courtyard Report, MPMR, V4, T4(69), p
11 4812-2227-7581, v. 1
913; Affidavit of Sue Davey, para 186-194, MPMR, V2, T4(4), p 261-63;
Appendix 1
24. 2004 Hay Compensation Report. The Hay Group, retained by the AOM, issued a report in 2004
which confirmed the appropriateness of the Morton comparison analysis as a reasonable equity
structure relative to other health professionals, and highlighted the midwives’ more onerous 24/7
schedule required by the midwifery model of care compared to other health care comparators. Hay
recommended a $31,800 increase to the compensation of a top-level, fulltime midwife.
Decision, [171, 216]; Hay Report, MPMR, V7, T5(18), p 1663-1670, 1676-77;
Affidavit of Moshe Greengarten, MPPR, V5, T5(10), p 1460; Affidavit of Remi
Ejiwunmi, para 107-134, RR, T2, p 54-60
25. 2005 AOM-MOH Agreement. At this time, the MOH was in a joint process with the AOM
and considered both the Morton and Hay reports. The parties negotiated a new contract which
covered April 1, 2005 to March 31, 2008, which the Tribunal found did not violate the Code as
the MOH’s compensation-setting had sufficient connection to the 1993 funding principles and
there was “insufficient evidence of adverse impact connected to gender”. The AOM was told by
the MOH it would have to wait for further compensation adjustments to address fully the years
from 1993 to April 1, 2005 when midwives’ compensation was frozen given fiscal restraints.
Decision, [6, 40, 47, 51-2]; Liability Decision, [164, 287, 291-2]
2. AOM Equity Requests, 2008-2011 Agreement and Commitment to Study
26. Since 2005, the AOM repeatedly raised that midwives were falling behind CHC physicians and
being positioned too closely to nurses. As a result of the CHC physicians obtaining Ontario Medical
Association (“OMA”) representation in 2004 and being afforded a harmonization alignment process
with non-fee for service male predominant family physicians, the midwives’ CHC comparator salary
had risen from $117,669 in 2005 to $181,233 in 2010. During the same period, the top-level midwife’s
compensation increased from $93,600 in 2005 to $104,847. As of 2010, the top-level Nurse Practitioner
12 4812-2227-7581, v. 1
was earning $89,203. The compensation gap between midwives and CHC physicians had increased to
$76,386 by 2010 from $3,000 at the time of regulation with no intervening study as to whether
midwives’ compensation remained properly aligned with their comparators.
Decision, [56, 114]; Liability Decision, [294]; Courtyard Report, sec. 1.5, 4.7,
MPMR, V4, T4(69), p 872-874, 895-900; Affidavit of Katrina Kilroy, paras 168-
198, MPMR, V5, T5(2), p 1268-1276 [“Kilroy Aff”]; Appendix 1
27. Due to fiscal restraints, the MOH held midwifery compensation increases to 2% each year
in the contract covering the period from 2008 to the March 31, 2011 expiry date.
Decision, [42]; Liability Decision, [157, 175]; Remedy Decision, [27];
Memorandum of Understanding between AOM and MOH (May 7/09), Art. 7,
MPMR, V11, T5(70), p 3390-96 [2009 MOU]
28. By abandoning other issues, the AOM persuaded the MOH to include in the 2008-2011 contract
an obligation that the parties would retain an objective independent third party to conduct a joint non-
binding “compensation review of midwifery services”. The report was to inform the negotiations
leading to the next 2011 contract. The Memorandum of Understanding between the parties noted the
OMP objective to “provide equitable funding mechanisms that support the integration of midwifery
services into the funded provincial health care system”. This would be the first joint compensation
study of the parties since 1993.
Decision, [51, 130, 234]; Liability Decision, [38, 39]; 2009 MOU, Art. 3, 7,
MPMR, V11, T5(70), p 3390-91, 3393-94; Request for Services (Jun 8/10),
MPMR, V11, T5(71), p 3405
3. Courtyard Compensation Review and Report
29. The joint compensation study, conducted by compensation experts (the Courtyard Group),
commenced in July 2010 and considered the funding principles set out in the Morton and Hay reports.
In September 2010, the Courtyard Group released its report which generally followed the 1993 joint
working group process and funding principles to recommend a fair and appropriate compensation
adjustment for midwives. Courtyard found that the 1993 funding principles remained relevant, were
13 4812-2227-7581, v. 1
followed in the Hay report, and had been reinforced over the years. After analysing the scope of
practices and work differences between midwives and their comparators, as well as educational
differences, Courtyard found a significant inequitable compensation gap between midwives and CHC
physicians, as well as an inappropriate closeness with Nurse Practitioners. Courtyard made numerous
recommendations including a “one-time equity adjustment to midwifery compensation” of 20% which
“would restore midwives to their historic position of being compensated at a level between that of nurse
practitioners and family physicians”. Courtyard further recommended more regular negotiations, noting
that the irregular negotiations “hurt the compensation of midwives” and contributed to the need for the
review, with no true negotiations or compensation increases between 1994 and 2005.
Decision, [52, 56-8]; Remedy Decision [127-128]; Courtyard Report, MPMR,
V4, T4(69), p 863-916, see especially p 902-906
30. MOH rejects Courtyard and freezes midwifery compensation until 2017. The MOH
refused to implement the Courtyard report "despite having been a full and active participant" in
the joint study. The MOH later raised criticisms of Courtyard before the Tribunal which were not
raised at the time of the joint process. The Tribunal noted that the Courtyard report was
“sufficiently compelling for the MOH to realize that the AOM’s claim of gender discrimination
had some validity” and that contrary to OHRC policies, the MOH "took [no] reasonable steps to
understand and evaluate the allegations of discrimination”. The MOH instead imposed wage
restraint policy on midwives in accordance with the Public Sector Compensation Restraint to
Protect Public Services Act, “without examining the gender implications” of freezing midwifery
compensation at inequitable levels. In doing so, the MOH refused to apply the exemption under
the wage restraint law and policy “for human rights entitlements”.
Decision, [59-62, 71, 75, 113-14, 216, 219]; Liability Decision [196, 207-08,
297, 303, 307-308]; Remedy Decision, [7]; Public Sector Compensation
Restraint to Protect Public Services Act, 2010 S.O. 2010, c. 1, Sched. 24, ss.
12(3); Affidavit of Laura Pinkney, para 113-14, 117-19, RR, T3, p 105-108;
14 4812-2227-7581, v. 1
Kilroy Aff, para 243-44, 248-49, MPMR, V5, T5(2), p 1285-87; Transcript of
Laura Pinkney (Nov 4/16), MPMR, V9, T5(46) p 2844; Affidavit of Kelly
Stadelbauer, para 142-155, 162-69, MPMR, V5, T5(3), p 1358-64
31. The MOH rejected the AOM’s multiple requests to implement Courtyard, and from
October 2010 to Spring 2013, the MOH continued to freeze the compensation of midwives. By
2012, the gap between the compensation of the CHC physicians and the top midwife was now
$80,579 (compared to $3,000 at the time of regulation). This led to the AOM filing its Code
Application on November 27, 2013.
Decision, [60-63]; Remedial Decision [144]; Appendix 1
C. Proceedings Before Tribunal
32. On September 18, 2018, after more than 50 hearing and special examiner days, the Tribunal
issued a 90-page decision in which it concluded the MOH had discriminated against midwives:
After 2005, and particularly the period following the release of the Courtyard
report, the MOH unilaterally withdr[ew] from the principles established at
regulation which protected the compensation of midwives from the effects
of gender discrimination. In 1993, the parties were aware of the pervasive
nature of discrimination in compensation, the stereotypes associated with
women’s work and the necessity to ensure that women are paid by reference
to objective factors like SERW. The MOH’s failure to maintain a
perspective consistent with the principles set out in the Code in negotiations
with the AOM after the Courtyard report it created a series of
consequences, when considered together, constitute discrimination under the
Code. …
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 disadvantaged midwives have experienced as sex-segregated
workers. It also undermines the dignity of midwives who now find
themselves having to explain why they should be compared to physicians
for compensation purposes more than 20 years after this principle was
established. It is a denial of substantive equality that midwives must negotiate
in a context where there is no recognition of the potential negative impact of
gender on their compensation. … [Emph. added.]
Decision, [3, 9]; Liability Decision [234, 236, 242, 274, 322, 324]; violations of
Code, ss. 3, 5, 12
15 4812-2227-7581, v. 1
33. Contrary to the MOH’s misleading summary of the decision, the Tribunal’s findings of
discrimination were based on a comprehensive analysis of the cumulative adverse impacts of the
MOH’s acts, omissions, and policies on midwives which were connected to their gender and which
led to an increasing compensation gap between midwives and CHC physicians. These adverse
gender impacts included the MOH: 1) unilaterally abandoning the funding principles which,
together with midwifery, was connected to and “imbued with gender” and provided for an
“equitable formula” for making visible and valuing midwifery work, without providing any Code
compliant replacement tool for setting midwifery pay free of sex bias; 2) unfairly positioning
midwives’ pay too closely to other predominantly female professions (nurses and midwives from
other provinces) at the same time as affording CHC physicians a relative alignment process with
other male predominant primary care providers despite fiscal restraints; 3) denying midwives
regular negotiations and compensation studies (in contrast to the robust bargaining processes
afforded to the OMA); 4) denying midwives the CHC physician comparator – a proxy for male
work – in order to “ensure that their compensation corresponded with the work itself and not the
gender of the person doing the work”; 5) failing to recognize the “connection between midwifery
and gender …[to be] informed about the effects of gender on the compensation of sex-segregated
workers” and to account for such effects when arguing that bargaining strength, occupational
differences and labour market forces justified the substantial and increasing compensation gap
with midwives; 6) permitting a substantial pay equity gap to emerge between midwives and CHC
physicians; 7) imposing compensation restraints on midwives after the release of the Courtyard
report, when there was an exemption for Code adjustments, compounding the effects of the loss
of the funding principles; 8) failing to resolve any perceived flaws in the Courtyard report; 9)
failing to properly investigate the AOM’s discrimination allegations; and 10) failing to proactively
16 4812-2227-7581, v. 1
prevent systemic gender discrimination in midwives’ compensation, in contrast to the MOH
proactively monitoring the compensation of the CHC physicians to ensure it was “fair and aligned
with other physicians”. Contrary to the MOH assertion, the Tribunal found that the MOH’s “failure
to act proactively is just one factor from which I draw an inference of discrimination”.
Factum of the Applicant (Moving Party), the Minister of Health, para 10 [MOH
Factum]; Decision, [3, 9-11, 65, 71]; Liability Decision, [12-17, 27, 37, 42-45,
62, 97, 99, 139-142, 173-177, 182, 191, 206, 274-324, 303, 317]; Remedy
Decision, [7, 20, 30, 36, 102, 118]
34. While the Tribunal found that the 1993 funding principles could evolve and be adapted
and that there was no single compensation-setting methodology for compliance with the Code, it
held that the MOH had failed in its obligation to take “steps which are effective and proportional
to its obligations under the Code to both prevent and remedy discrimination”. As a result of the
above cumulative adverse gender impacts, midwives were “exposed to the well-known effects of
gender discrimination on women’s compensation”.
Decision, [70, 72]; Liability Decision [317, 323]
35. As the Tribunal found that the AOM had established prima facie discrimination, the burden
shifted to the MOH to provide a non-discriminatory justification. The Tribunal rejected the MOH’s
explanations for the adverse treatment and that sex was not a factor in such treatment, including
its argument that the pay gap was due to occupational differences and market forces, both of which
the Tribunal found were connected to gender. The Tribunal ultimately concluded that the MOH
“failed to adequately explain its methodology for setting compensation for midwives”, had no
Code compliant mechanism in place to assess for SGDC, and tendered no expert evidence or
compensation study to establish that its compensation practices were free of SGDC.
Decision, [120, 141-42, 144-46, 158, 165]; Liability Decision, [15, 267, 303, 318]; Remedy
Decision, [36, 58-59, 102, 118-120]
36. In its Remedy Decision, the Tribunal ordered the MOH to implement Courtyard’s
17 4812-2227-7581, v. 1
recommended 20% adjustment as of April 1, 2011 on the basis that the Courtyard report
"represents the best evidence" of midwives' losses. It awarded eligible midwives damages of
$7,500 for injury to dignity, feelings, and self-respect. Further, the Tribunal made several orders
to promote Code compliance, including, directing the MOH to "reinstate the [lost compensation]
benchmarks, including an appropriate physician comparator, [and] to address the need for ongoing
comparison with male work or proxies for male work in future compensation studies”.
Remedy Decision, [9-11, 102, 184, 187-192, 205]
D. Proceedings Before Divisional Court
37. The MOH applied for judicial review of both decisions, citing over 40 grounds for review.
The MOH, in effect, requested that the Divisional Court engage in a wholesale reassessment of
the Tribunal’s fact finding and reasoning.
Decision, [91, 110-112, 210]
38. The Divisional Court unanimously rejected the MOH’s application. Applying Vavilov, the
Court ruled that the Tribunal’s findings of systemic gender discrimination in midwives’
compensation setting and its remedies for such discrimination were reasonable. The Court held
that the Tribunal’s reasoning and conclusions were “transparent, intelligible and justified” and
“fall within a range of possible, acceptable outcomes which [were] defensible in respect of the
facts and law”. The Court emphasized that the MOH “argued this judicial review application on
the basis that gender and the systemic nature of the claim are nonexistent” and rejected the MOH’s
“overarching position… that gender ha[d] never been a factor in determining compensation for
midwives and that midwives’ compensation was never set in relation to a male comparator”.
Decision, [102, 249]
39. In a strong rebuke of the MOH’s argument, the Court found the MOH’s assertion that there
was no gendered adverse treatment of midwives “disingenuous”. Contrary to MOH’s assertion
18 4812-2227-7581, v. 1
that the Court “merely repeated and accepted as reasonable” the Tribunal’s conclusions, the Court
engaged in an extensive factual and legal analysis, ultimately concluding that the Tribunal’s
findings that the MOH actions and inactions resulted in adverse treatment connected to gender
which violated the Code were reasonable.
Decision, [112-113, 119-121, 249], MOH Factum, para 33
40. The Court detailed twelve Tribunal findings to support its conclusion and to show that such
findings did not lead to circular reasoning as alleged by the MOH. The Court rejected the MOH’s
assertion that the Tribunal “made no finding that there was any direct or circumstantial evidence
that sex was a factor” in MOH decisions regarding midwives’ compensation after 2005. The Court
reiterated the Tribunal’s findings, including the key finding that “the MOH then gradually lost
touch with those principals and methodology [the Equity Tool], eventually abandoning the CHC
physicians as a comparator altogether, without developing an alternative methodology for
midwives’ compensation that ensured they would be paid for the value of their work, a benefit
routinely enjoyed by men”. The Court accepted as reasonable the Tribunal’s approach hat “it was
the systemic nature and cumulative effect of the MOH’s policies and conduct over time on the
compensation of midwives that the Tribunal found made gender more likely than not a factor in
the midwives’ adverse treatment and the breach of the Code clear” and that the Tribunal’s
conclusions in light of this were eminently reasonable.
Decision, [102, 113-117, 119-120, 149, 157]
41. The Court upheld the Tribunal’s finding that the MOH had a proactive obligation to
monitor midwives’ compensation for discriminatory impacts. The Court stated:
Central to the Tribunal’s liability finding was the MOH’s admission that it had
taken ‘no proactive steps’ to monitor the compensation of midwives for the
impact of gender discrimination on the fairness of their compensation.
Consistent with the well-established jurisprudence, the OHRC policies and
extensive evidence before it, the Tribunal found that the MOH ‘must take
19 4812-2227-7581, v. 1
steps which are effective and proportional to its obligations under the Code
to both prevent and remedy discrimination.” … The Tribunal’s findings in
this regard are reasonable. Indeed, they are consistent with the SCC’s
decision in Moore and the Canadian Human Rights Tribunal’s decision in
Caring Society, two cases concerning systemic discrimination in government
funding policies.
Decision, [188-189, 196 Emph. added; see generally 182-196]
42. The Divisional Court rejected the MOH’s argument that the Tribunal reversed the onus by
requiring the MOH to prove that sex was not a factor in the adverse treatment. The Court found
that the Tribunal’s conclusion that the MOH’s rebuttal evidence was not a full answer to the
compensation gap was “amply supported by the evidentiary record”. The Court noted that the
MOH’s failure to provide a job evaluation establishing that midwifery compensation was free of
sex bias was simply one reason the Tribunal did not accept the MOH’s rebuttal evidence:
Instead of applying a gender-sensitive evaluation mechanism, the MOH asserted
that CHC physicians were no longer appropriate comparators because of alleged
occupational differences that arose since 1993. Yet, as found by the Tribunal,
the MOH did not lead any expert evidence or study to rebut “the ongoing
relevance of the comparison” which was validated by the 1993 Morton Report,
the 2004 Hay Report and again in the 2010 Courtyard Report … There is no
merit in the argument that this is a reversal of the burden of proof. It simply
provides one reason why the Tribunal did not find the MOH’s non-
discriminatory evidence was persuasive to fully explain the compensation gap.
Decision, [171; see generally, 163-166, 170-173]
43. Finally, the Court found that the Tribunal gave rational and logical reasons for adjusting
midwives’ compensation back to April 1, 2011 in accordance with Courtyard, and for declining to
discount the monetary remedies on the basis of the evidence which showed midwives had endured
many years of fiscal restraint with no consideration of their Code entitlements. The Court rejected
the MOH’s argument that the Tribunal’s order resulted in midwives being compared to CHC
physicians in perpetuity unless the AOM agreed otherwise. The Court found that the MOH
mischaracterized the Tribunal’s order on this point; the order sought to reset the funding
20 4812-2227-7581, v. 1
principles/Equity Tool and to restore the midwives to the position they would have been in but for
the discrimination. The order provided that the parties would conduct a joint compensation study
which would allow them, among other things, to consider any comparators they deem appropriate.
Decision, [211-248]
PART III: ISSUES AND LAW
44. The MOH seeks leave on the following three issues: 1) did the Divisional Court err in its
articulation and application of the reasonableness standard as set out by the Supreme Court in
Vavilov?; (2) did the Divisional Court err in upholding as reasonable the Tribunal’s finding that
the MOH had a proactive obligation arising from the Code to take steps to prevent systemic gender
discrimination in pay by using CHC physicians (a female predominant group) as a comparator in
setting midwives’ compensation?; and (3) did the Divisional Court err in upholding as reasonable
the Tribunal’s conclusion that the MOH had the onus under the Code to produce a job evaluation
to demonstrate that a comparison to CHC physicians was not appropriate?
Canada v Vavilov, 2019 SCC 65 [Vavilov]
45. In deciding whether to grant leave, the foremost consideration is the impact a decision will
have on the development of Ontario’s jurisprudence. Where the questions to be raised on appeal
are not of public importance, leave should be denied. Leave should also be denied where the appeal
does not raise an "arguable" question of law or mixed fact and law.
Re Sault Dock Co. Ltd. and City of Sault Ste Marie, 1972 CanLII 572 (ON CA);
Courts of Justice Act, RSO 1990, c C 43, s. 6(1)(a)
46. The AOM submits that leave ought to be denied. The MOH’s issues are not issues of public
importance that will have an impact on the development of Ontario law. In contrast, ensuring
midwives have certainty and finality in achieving equitable compensation is of public importance.
47. Further, the MOH has no arguable case on any of the alleged Divisional Court errors. The
21 4812-2227-7581, v. 1
Divisional Court’s determination was based on well-established legal principles and was highly
contextual, driven by the particular facts relating to midwifery compensation. The Court properly
articulated and applied the reasonableness standard as set out by the SCC in Vavilov and applied
by the Court of Appeal in its recent jurisprudence. Further, the Divisional Court correctly found
as reasonable the Tribunal’s factual findings and reasoning underpinning its conclusions that (i)
the MOH had a proactive obligation arising from the Code to take steps to prevent systemic gender
discrimination in midwifery compensation and to compare such compensation to CHC physicians’
compensation; and that (ii) the MOH's lack of evidence to validate its compensation practices was
a relevant factor for the Tribunal to consider in assessing the MOH’s rebuttal evidence. While the
MOH continues to disagree with the Tribunal’s factual findings, this is no basis for appeal.
A. Issue 1 – Standard of Review Properly Interpreted and Applied
48. No issue of public importance. The Divisional Court’s articulation and application of the
Vavilov reasonableness standard follows well-established legal principles and will not have an
impact on the development of the law. The Vavilov framework has not resulted in a material change
to reasonableness review where, as here, the presumption of reasonableness is not rebutted. The
standard of reasonableness continues to require a deferential approach with the reviewing Court
paying respectful attention to the administrative decision-maker’s expertise and experience.
Contrary to the MOH’s position, this Court has affirmed that the standard requires substantial
deference to the “specialized knowledge and expertise” of administrative decision-makers and that
a decision is reasonable when it is “both internally coherent and justified in light of the legal and
factual constraints, including the evidence before [it]”. The Divisional Court’s treatment of the
standard follows this Court’s guidance on the reasonableness standard post-Vavilov.
MOH Factum, para 3-5; Vavilov, para 75, 92-93; Fotiou (Re), 2020 ONCA 153,
para 5-10, 14; Murray (Re), 2020 ONCA 547, para 10; see also e.g. Nguyen (Re),
22 4812-2227-7581, v. 1
2020 ONCA 247, para 28-31
49. No arguable case. The Divisional Court’s deference to the Tribunal is not an error. The
MOH asked the Divisional Court to engage in a wholesale reassessment of the evidentiary record
before the Tribunal, which the Court properly refused to do. The MOH now points to the Divisional
Court holding that the Tribunal was entitled to “substantial deference” and that its “findings and
reasonings should not be interfered with ‘absent exceptional circumstances’” as a basis to argue
that the Court misapplied the reasonableness standard per Vavilov. In another mischaracterization,
the MOH argues that the Divisional Court is making a “suggestion that a more deferential standard
applies to the Tribunal as a result of its relevant expertise” inferring that the Divisional Court
applied a different standard of reasonableness to the Tribunal because it is an expert body. The
MOH has no basis for making this assertion. There is no need for this Court to consider the
reasonableness standard post-Vavilov as it applies to the Tribunal specifically as there is not a
different standard applied to the Tribunal.
MOH Factum, para 3, 25; Decision, [89-91, 118, 249]
50. The Divisional Court correctly considered and then rejected the MOH arguments
challenging the Tribunal’s factual findings, concluding that the Tribunal’s findings were supported
by the record and its reasoning was logical and coherent. The MOH seizes on the Divisional
Court’s use of the phrase “absent exceptional circumstances” to argue that the Divisional Court
declined to meaningfully consider “whether the finding of discrimination was the result of a
rational reasoning process that could be justified in light of the relevant factual and legal
constraints bearing on the decision, as required by Vavilov”. In stark contrast to the MOH’s
assertions, the passage “absent exceptional circumstances” is taken directly from Vavilov: “It is
trite law that the decision maker may assess and evaluate the evidence before it and that, absent
exceptional circumstances, a reviewing court will not interfere with its factual findings”. It is well-
23 4812-2227-7581, v. 1
established that a reviewing court should not interfere with an administrative decision-maker’s
factual findings absent exceptional circumstances. Reviewing this established legal principle is not
an issue of general importance warranting leave.
MOH Factum, para 24-25, footnote 18; Decision, [91; see e.g. 112-115, 119-
120, 126-127, 215]; Vavilov, para 125, Emph. added
51. Contrary to the MOH’s assertions, the Divisional Court acknowledged and applied the test
that a reasonable decision is one that provides an internally coherent and rational chain of analysis
and which is justified based on the legal and factual constraints. It also cited extensively to Vavilov
for support that deference is still owed to the Tribunal’s decision-making:
The Court in Vavilov also makes clear that a reasonableness review is anchored
“in judicial restraint and respect [for] the distinct role of administrative decision
makers” [Vavilov, para 75]. The Tribunal’s reasons are to be read as a whole and
“not to be assessed against a standard of perfection” [Vavilov, para 91]. It is not
a “line-by-line treasure hunt for error” [Vavilov, para 102]. It need not “respond
to every argument or line of possible analysis” or include all “jurisprudence or
other details the reviewing judge would have preferred” [Vavilov, para 91, 12].
Nor must they make “an explicit finding on each constituent element, however
subordinate, leading to [the Tribunal’s] conclusion” [Vavilov, para 128] A
decision is reasonable where the reasoning process is “transparent, intelligible
and justified” [Vavilov, para 15] and the outcome is one that “falls within a range
of possible, acceptable outcomes which are defensible in respect of the facts and
law” [Vavilov, para 86; see also Dunsmuir]. The SCC also cautions that in areas
within the purview of the Tribunal: “It is the Tribunal’s task to evaluate the
evidence, find the facts and draw reasonable inferences from the facts”, and to
interpret the Code “in ways that make practical and legal sense in the case before
it, guided by the applicable jurisprudence” [see Elk Valley]. Such findings and
reasonings should not be interfered with “absent exceptional circumstances”
[Vavilov, para 125].
MOH Factum, para 28; Decision, [89-91]; Vavilov, para 15, 18, 75, 86, 91-94,
100, 125, 128; Dunsmuir v New Brunswick, 2008 SCC 9, para 47; Stewart v Elk
Valley Coal Corp., 2017 SCC 30, para 20-22, 27
52. In asserting that the Divisional Court erred in applying the reasonableness standard, the
MOH cites to six alleged errors which all stem from factual findings by the Tribunal that were
accepted by the Divisional Court as reasonable. The AOM responds to the MOH examples of
24 4812-2227-7581, v. 1
alleged error at subparagraphs 33(a), 33(c), and 33(f) of the MOH factum as follows.
53. First, the Divisional Court carefully reviews the Tribunal’s findings on the adverse
treatment of midwives, as well as the findings that sex was a factor in the adverse treatment, and
accepts that the Tribunal’s systemic discrimination holding was reasonable. The Court did not
identify any circular reasoning in the Tribunal’s findings and reasons. The Tribunal’s
discrimination holding was based on various findings, including reasonable inferences drawn
from, among other things, the MOH's failure to take any steps whatsoever to monitor midwifery
compensation for the well-know effects of SGDC. The Court did not identify incoherence in this
inference; indeed, the inference of discrimination – that gender was a factor in the adverse
treatment – was open to the Tribunal on the record, including the fact that the MOH admitted that
it took no proactive steps to identify whether gender bias contributed to the compensation gap.
Decision, [114-115, 118, 120, 124, 126-127, 134-139, 142, 146, 149, 160-162,
165-166, 185, 188-191, 249]
54. Second, the Court considered at length the MOH’s argument that the Tribunal
unreasonably found that CHC physicians who had become female predominant over the years
could be midwives’ comparator for male work. As noted by the Court, “[t]he Tribunal gave cogent
reasons based on history and evidence in this case for why CHC physicians being female does not
affect their ongoing relevance to maintaining equitable compensation for midwives”. The Court
found there was “no merit” to the MOH's argument, soundly rejecting its formalistic premise that
a male comparator who statistically becomes female predominant cannot continue to be a proxy
for male work, particularly where, as here, the CHC physician comparator has its compensation
set in alignment with physicians who remain male predominant and with whom midwives, as
primary care providers, share an overlapping scope of practice.
Decision, [174-181]
25 4812-2227-7581, v. 1
55. Third, the MOH asserts that the Divisional Court did not address how the Tribunal’s
decision was justified, transparent and intelligible in light of its allegedly non-discriminatory
explanations for why CHC physicians received larger compensation increases from 2005 to 2012.
The Court adopted the Tribunal’s reasoning on the basis that it was intelligible and reasonable.
The Tribunal found on the evidence that while the MOH provided “reasonable explanations” for
why CHC physician compensation increased, “it failed to adequately explain its methodology for
setting compensation for midwives after the 2005 agreement”, including how it set midwives’
compensation free from sex discrimination. The Court concluded that the MOH’s argument
“misses the point” as the “Tribunal accepted that there were [non-discriminatory factors, such as]
occupational differences and market factors, but found that gender remained a factor”.
Decision, [167-169]; Remedy Decision, [36, 58-59, 118]
B. Issue 2 – Proactive Duty To Prevent Discrimination Is Settled Law
56. No issue of public importance. It is established law that the Code places a proactive
obligation on duty-holders (including employers and compensation setters) to prevent and remedy
discrimination. It is neither novel nor a rewriting of the Code and its legislative scheme. As stated
by the Tribunal, and as accepted by the Divisional Court, “it would diminish the fundamental
nature of rights and protections enshrined in the Code to have the right to have discrimination
remedied but not prevented”. The Tribunal’s and Divisional Court’s application of this established
duty in the compensation-setting context does not raise an issue of public importance that warrants
consideration by this Court. Rather, ensuring the timely enforcement of this duty by denying leave
to the MOH is a matter of public importance.
Decision, [184]; Remedy Decision, [309]
57. No arguable case. In seeking leave, the MOH advances the same meritless argument that
26 4812-2227-7581, v. 1
it has no duty to prevent discrimination which was aptly rejected by the Tribunal and the Divisional
Court. The Court found that rather than rewriting the Code, as alleged by the MOH, the Tribunal
reasonably concluded that the MOH “has a positive and continuing legal duty under the Code to
proactively secure conditions of substantive equality even in the absence of a formal human rights
complaint”, on the basis of the Code, OHRC policies, and caselaw including the SCC’s decision
in Moore and the Canadian Human Rights Tribunal’s decision in Caring Society. The Court noted
that OHRC policies make clear that monitoring and reviewing policies and decision-making for
adverse impacts on Code-protected groups ensures an organization does not unintentionally
engage in or choose to remain ignorant of systemic discrimination. Contrary to the MOH’s
assertion [para 33b], specific OHRC policies were put in evidence before the Tribunal and the
MOH cited the OHRC policies as the relevant government policies in the proceedings.
Decision, [185, Emph. added, 184-186, 189-190]; Liability Decision, [226, 304, 307-309,
315, 317-18, 321]; Moore v British Colombia, 2012 SCC 61 (“Moore”); First Nations
Child and Family Caring Society of Canada et al. v AG of Canada, 2016 CHRT 2 (“Caring
Society”); OHRC (2013), “A policy primer: Guide to Developing Human Rights Policies
and Procedures”; OHRC (2005), “Policy & Guidelines on Racism & Racial
Discrimination”; MOH Response to AOM Request for Particulars, RR, V1, T4, p 126
58. Proper adherence to legal and factual constraints. Contrary to the MOH’s assertions [36],
the Divisional Court engaged in a robust analysis of the legal constraints on the Tribunal,
considering the Code, its statutory scheme, OHRC policies, and discrimination law jurisprudence
in which a duty-holder's proactive obligation is well-established, and concluded that the Tribunal
acted reasonably within such constraints. In addition, and per Vavilov, the Divisional Court
considered the factual constraints on the Tribunal imposed by the evidentiary record before it.
59. The uncontested evidence is that the MOH abandoned the funding principles and took no
steps to monitor midwives’ compensation for gender bias. Nor did the MOH respond to the AOM’s
repeated equity concerns, including following the 2010 Courtyard report’s recommended 20%
27 4812-2227-7581, v. 1
equity adjustment which the MOH refused to implement. The MOH ignored its Code obligations
to proactively prevent discrimination and investigate the AOM’s equity complaints. Instead, the
MOH maintained a gender-avoidant stance and argued, contrary to the jurisprudence, that there is
no obligation “to act proactively, monitor workplace culture and systems, take preventative
measures to ensure equality, identify and remove barriers, [and] take positive steps to remedy the
adverse effects of practices and policies that appear neutral on their face”.
60. The MOH wrongly asserts that there is no such obligation in the compensation-setting
context, or if there is one, it is a “novel legal duty” for which it cannot be liable retrospectively.
Upon review of the legal constraints on the Tribunal alongside the uncontroverted evidentiary
record and MOH policies and conduct, the Divisional Court concluded that the Tribunal acted
reasonably within such constraints in finding that the MOH failed to meet its proactive obligations,
and that the MOH’s admitted inaction on monitoring midwives’ compensation for gender
discrimination in response to the AOM’s equity concerns (unlike its proactive monitoring of CHC
physicians’ compensation) compounded the adverse impacts experienced by midwives from losing
the funding principles and was itself properly found to support an inference of discrimination.
There is no arguable case that the Divisional Court erred in upholding the Tribunal’s findings on
the MOH’s proactive obligation.
Decision, [71-73, 191, 196; also 182-196]; MOH Factum, para 33(b), 38-39
61. Not a novel application. An organization’s duty to take proactive steps to monitor
compliance with the Code, including the monitoring of compensation-setting to ensure it is free of
discrimination, is neither novel nor unwieldy. It is well-established that the Code's proactive duties
extend to workplace standards, including compensation policies, to ensure they are designed from
the outset in a manner that promotes substantive equality and prevents discriminatory effects. The
scope of this duty was not enlarged by the Tribunal's and Divisional Court’s decisions. The Code
28 4812-2227-7581, v. 1
does not prescribe a process for monitoring Code-compliant compensation for women workers
akin to how the Code does not expressly prescribe a process for monitoring Code-compliant hiring
practices for workers or for implementing the duty to accommodate to the point of undue hardship
Contrary to the MOH’s assertion, the lack of a prescribed process does not mean the duty on the
persons or organizations who employ or contract with workers does not exist, nor that the duty is
incapable of principled application. The notion that this duty is “unbounded in scope and incapable
of principled application” and ought to be considered by this Court as a matter of general public
importance, ought to be rejected. As before, there is an obligation on persons or organizations who
employ or contract workers to ensure that they do not discriminate against them on the basis of
Code-protected grounds, regardless of whether it is in compensation-setting or other contexts, such
as hiring and accommodation.
Decision, [114, 194, 196]; Liability Decision, [319]; MOH Factum, para 39-40;
British Columbia v BCGSEU, [1999] 3 SCR 3, para 39-42, 68 (“Meiorin”);
Caring Society, para 384-88, 403-04; Moore, para 43-48, 52
C. Issue 3 – Tribunal And Court Properly Applied Burden of Proof
62. No issue of public importance. The MOH’s failure to adduce evidence, such as a job
evaluation, to rebut the prima facie case does not amount to a reversal of the burden of proof and
is not an issue of public importance. The law on the burden of proof is settled; the evidentiary
burden shifts to the respondent to rebut the prima facie case of discrimination once it is established.
The Divisional Court did not err in accepting the Tribunal’s rejection of the MOH’s rebuttal
evidence as a full answer to the prima facie case. Upon reviewing the Tribunal’s findings and
reasoning, the Divisional Court concluded that the MOH reversal of the burden argument lacked
merit. The MOH now advances the same argument before this Court and again mischaracterizes
the Tribunal's findings, erroneously asserting that the Tribunal concluded that a job evaluation was
“required by the Code”. It was not the Code per se that required an objective evaluation of
29 4812-2227-7581, v. 1
midwifery work and compensation in the circumstances; but rather, the evidence establishing that
the MOH had prima facie discriminated against midwives in setting their compensation and that
sex was more likely than not a factor in the compensation gap with CHC physicians.
MOH Factum, para 33(d), 33(e); Decision, [171; see generally 98, 170-73];
Liability Decision, [257-262]; Ont. Human Rights Comm. v. Simpsons-Sears,
1985 CanLII 18 (SCC); Shaw v Phipps, 2012 ONCA 155, para 29-36
63. No arguable case. The Divisional Court correctly concluded that the Tribunal did not
reverse the burden of proof. The AOM established a prima facie case of discrimination with the
evidential burden shifting to the MOH to provide a credible, reliable, non-discriminatory
explanation for why sex was not a factor in the adverse treatment of midwives. The MOH did not
meet this burden. It could have easily tendered an objective, gender-sensitive job evaluation yet
did not. This would have been “an explanation that could have been very easily given”. The
MOH’s failure to tender any job evaluation whatsoever reasonably resulted in an adverse inference
drawn by the Tribunal. As the Divisional Court affirmed, the MOH chose to deny “the relevance
of gender to setting compensation for midwives as an almost exclusively female profession”,
notwithstanding the parties’ own recognition of its relevance in 1993 and the substantial evidence
of its continuing relevance and the importance of not taking a “gender insensitive” approach when
setting compensation for a highly sex segregated profession like midwifery.
Decision, [171, 173]; Remedy Decision, [58, 120, 186]; Peel Law Association v
Pieters, 2013 ONCA 396, para 97; Decision, para 171; MOH Factum, para 21,
33(d); see para 33 above (list of gendered nature of impacts); Pay Equity Act,
R.S.O. 1990, c. P.7, Preamble; Quebec v Alliance du personnel professionnel et
technique de la santé et des services sociaux, 2018 SCC 17, para 6-9, 29;
Centrale des syndicats du Québec v Quebec, 2018 SCC 18 , para 2-4, 24, 29, 34
64. The Tribunal’s reasons for concluding that the MOH’s non-discriminatory explanations
were inadequate and themselves connected to gender were transparent, intelligible, and justified.
The Divisional Court correctly upheld the Tribunal's finding that the MOH did not lead sufficient
30 4812-2227-7581, v. 1
evidence of non-discriminatory explanations to rebut the prima facie case. The MOH’s failure to
adduce a compensation study “simply provides one reason why the Tribunal did not find the
MOH’s non-discriminatory evidence was persuasive to fully explain the compensation gap”.
Decision, [171]; Liability Decision, [15, 257-262, 297-299]
D. Interests Of Justice Favour Denying Leave To Appeal
65. Contrary to the MOH’s assertions, the interests of justice are not served by permitting the
MOH to use scarce Court of Appeal resources to once again make arguments which have been
decisively, unanimously and comprehensively rejected by both the Divisional Court and the
Tribunal. The MOH’s issues advanced on this motion continue its practice of mischaracterizing
evidence and findings, and applying a narrow, formalistic and gender avoidant analysis which
ignores, decontextualizes, and misstates the complex, systemic factual and legal context in which
midwives were discriminated against by the MOH.
66. The public interest is best served by denying leave to ensure that compensation-setters
comply with their well-established legal obligations under the Code and to send a strong signal
that a non-proactive, gender-avoidant approach to systemic gender discrimination in compensation
is untenable. Denying leave would further result in midwives realizing more timely access to
human rights justice. This litigation has been ongoing for nearly seven years and ought to stop
now as the issues raised by the MOH are neither of general public importance nor amount to an
arguable case in light of the Tribunal’s and Divisional Court’s cogent decisions.
PART IV: ORDER REQUESTED
67. For these reasons, the motion for leave to appeal ought to be dismissed with costs.
ALL OF WHICH IS RESPECTFULLY SUBMITTED this 2nd day of October, 2020.
Mary Cornish / Adrienne Telford / Lara Koerner Yeo, Counsel for the AOM
31 4812-2227-7581, v. 1
CORNISH JUSTICE SOLUTIONS
355 St. Clair Avenue West, Suite 2105
Toronto, ON M5P 1N5
Mary Cornish, LSO# 15908J
Tel: 416-576-3851
CAVALLUZZO LLP
474 Bathurst Street, Suite 300
Toronto ON M5T 2S6
Adrienne Telford, LSO# 56169T
Tel: 416-964-5548
Lara Koerner Yeo, LSO# 75765B
Tel: 416-964-1115
Fax: 416-964-5895
Lawyers for the Respondent (Responding
Party), Association of Ontario Midwives
Appendix 1: Male Predominance of Ontario Physicians (1978-2013) and Compensation Gap
between Midwives and Comparators, 1992-2013
Compensation Gaps Between Midwives and Comparators (1992-2015)2
Year Midwife
(Top Level)
CHC Senior
Nurse/Nurse
Practitioner
(Top Level)
CHC Physician
(Lowest Level)
Compensation
Gap
(Midwife &
Physician)
Compensation
Gap
(Midwife &
Senior Nurse/NP)
1992 $20,000 $56,000 $80,000 $60,000 $36,000 more
1993 $77,000 $56,000 $80,000 $3,000 $21,000 less
2003 $77,000 $80,000 $110,599 $33,599 $3000 more
2005 $93,600 $80,000 (Apr 1) - $113,259
(Oct 1) - $117,669
(Apr 1) $25,068
(Oct 1)- $24,069 $13,600 less
2009 $100,440 $89,203
(Apr 1) - $124,460 plus
incentives valued
$38,421=$162,881
(Oct 1) - $130,435 plus
$38,421 incentives-
$168,856
(Apr 1) $62,441
(Oct 1) $68,416 $11,237 less
2010 $104,847 $89,203 $181,233 $76,386 $15,644 less
2011 $104,847 $185,426 $80,579
2012 $104,847 $185,426 $80,579
2013 $104,847 (Jan 1) 183,426
(Apr 1) $182,509
(Jan 1) $78,569
(Apr 1) $77,662
2015 $104,847 $177,673 $72,826
1 CIHI Physicians, by speciality and gender, and percentage distribution, by gender, Canada
(1978-2014), MPMR, V12, T5(91), p 3822 2 Liability Decision, [28-30, 36-37, 121-22, 149, 163-64, 178-80]; Remedy Decision, [27];
Courtyard Report, MPMR, V4, T4(69), p 872, 896-98; Spreadsheet of CHC Salary Scales (Apr
1/04 – Apr 1/13), MPMR V11, T5(67), p 3374-75; Update on CHC Compensation for CHC
Executive (March 2/10), MPMR, V11, T5(84), p 3596-98
Male Predominance of Ontario Physicians (1978-2013)1
Year All Physicians
(Male %)
Family Physicians
(Male %)
CHC Physicians (Male
%)
1978 88.1 85.7 Majority Male
1988 79.6 75.6 Majority Male
1993 75.3 71.0 Majority Male
2005 68.4 64.0 Majority Female
2010 65.1 60.0 Majority Female
2013 63.2 58.4 Majority Female
4812-2227-7581, v. 1
SCHEDULE “A”
LIST OF AUTHORITIES
Tab Authority
1 Association of Ontario Midwives v Ontario (Health and Long-Term Care), 2018
HRTO 1335
2 Association of Ontario Midwives v Ontario (Health and Long-Term Care), 2020
HRTO 165
3 British Columbia (Public Service Employee Relations Commission) v. BCGSEU,
[1999] 3 SCR 3
4 Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65
5 Centrale des syndicats du Québec v Quebec (Attorney General), 2018 SCC 18
6 Dunsmuir v New Brunswick, 2008 SCC 9
7 First Nations Child and Family Caring Society of Canada et al. v. Attorney
General of Canada (for the Minister of Indian and Northern Affairs Canada),
2016 CHRT 2
8 Fotiou (Re), 2020 ONCA 153
9 Moore v British Colombia (Education), 2012 SCC 61
10 Murray (Re), 2020 ONCA 547
11 Nguyen (Re), 2020 ONCA 247
12 Ont. Human Rights Comm. v. Simpsons-Sears, 1985 CanLII 18 (SCC)
13 Ontario v Association of Ontario Midwives, 2020 ONSC 2839
14 Peel Law Association v Pieters, 2013 ONCA 396
15 Quebec (Attorney General) v Alliance du personnel professionnel et technique de
la santé et des services sociaux, 2018 SCC 17
16 Re Sault Dock Co. Ltd. and City of Sault Ste Marie, 1972 CanLII 572
17 Shaw v Phipps, 2012 ONCA 155
18 Stewart v Elk Valley Coal Corp., 2017 SCC 30
4812-2227-7581, v. 1
Secondary Sources
19 OHRC (2005), “Policy & Guidelines on Racism & Racial Discrimination”
20 OHRC (2013), “A policy primer: Guide to Developing Human Rights Policies and
Procedures”
SCHEDULE “B”
TEXT OF STATUTES, REGULATIONS & BY-LAWS
Human Rights Code, RSO 1990, c H 19, ss. 3, 5, 12
Contracts
3. Every person having legal capacity has a right to contract on equal terms without
discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed,
sex, sexual orientation, age, marital status, family status or disability. R.S.O. 1990, c. H.19, s. 3;
1999, c. 6, s. 28 (4); 2001, c. 32, s. 27 (1); 2005, c. 5, s. 32 (4).
Employment
5. (1) Every person has a right to equal treatment with respect to employment without
discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed,
sex, sexual orientation, age, record of offences, marital status, family status or disability. R.S.O.
1990, c. H.19, s. 5 (1); 1999, c. 6, s. 28 (5); 2001, c. 32, s. 27 (1); 2005, c. 5, s. 32 (5).
Harassment in employment
(2) Every person who is an employee has a right to freedom from harassment in the workplace
by the employer or agent of the employer or by another employee because of race, ancestry,
place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status,
family status or disability. R.S.O. 1990, c. H.19, s. 5 (2); 1999, c. 6, s. 28 (6); 2001, c. 32,
s. 27 (1); 2005, c. 5, s. 32 (6).
Discrimination because of association
12. A right under Part I is infringed where the discrimination is because of relationship,
association or dealings with a person or persons identified by a prohibited ground of
discrimination. R.S.O. 1990, c. H.19, s. 12.
4812-2227-7581, v. 1
Public Sector Compensation Restraint to Protect Public Services Act, 2010 S.O.
2010, c. 1, Sched. 24, ss. 12(3)
Conflict with this Act
12 (3) Nothing in this Act shall be interpreted or applied so as to reduce any right or entitlement
under the Human Rights Code or the Pay Equity Act. 2010, c. 1, Sched. 24, s. 12 (3).
Courts of Justice Act, RSO 1990, c C 43, s. 6(1)(a)
Court of Appeal jurisdiction
6 (1) An appeal lies to the Court of Appeal from,
(a) an order of the Divisional Court, on a question that is not a question of fact alone, with
leave of the Court of Appeal as provided in the rules of court;
Pay Equity Act, R.S.O. 1990, c. P.7, Preamble
Whereas it is desirable that affirmative action be taken to redress gender discrimination in the
compensation of employees employed in female job classes in Ontario;
Therefore, Her Majesty, by and with the advice and consent of the Legislative Assembly of the
Province of Ontario, enacts as follows:
4812-2227-7581, v. 1
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO AS
REPRESENTED BY THE MINISTER OF HEALTH AND LONG-
TERM CARE
-and- ASSOCIATION OF ONTARIO MIDWIVES et al.
Applicant, (Moving Party) Respondents, (Responding Parties)
Court File No. M51703
COURT OF APPEAL FOR ONTARIO
PROCEEDING COMMENCED AT
TORONTO
FACTUM OF THE RESPONDENT (RESPONDING PARTY),
ASSOCIATION OF ONTARIO MIDWIVES
CORNISH JUSTICE SOLUTIONS
355 St. Clair Avenue West, Suite 2105
Toronto, ON M5P 1N5
Mary Cornish, LSO# 15908J
Tel: 416-576-3851
CAVALLUZZO LLP
474 Bathurst Street, Suite 300
Toronto ON M5T 2S6
Adrienne Telford, LSO# 56169T
Tel: 416-964-5548
Lara Koerner Yeo, LSO# 75765B
Tel: 416-964-5543
Fax: 416-964-5895
Lawyers for the Respondent (Responding Party),
Association of Ontario Midwives
