Written by Claire Michela, 3L, University of Ottawa
Women are overrepresented in precarious and low wage work in Canada. Pay equity remains elusive and, overall, women are paid $0.87 on the dollar compared to men. The recent decision of the Ontario Human Rights Tribunal (Tribunal) in Association of Ontario Midwives (AOM) v Ministry of Health (MOH) provides a framework for equity-seeking groups under the Human Rights Code to argue that their work is undercompensated. Precarious workers have little recourse to remedy pay discrepancies. However, human rights tribunals may provide an avenue for challenging these discrepancies.
The Midwives decision provides a case study on how human rights tribunals may remedy pay equity issues for contract workers. In 2013, midwives in the AOM brought their pay discrimination case to the Tribunal. The AOM decided not to pursue their complaint under the Pay Equity Act, because they are independent contractors and not employees. Ontario’sHuman Rights Code prohibits discrimination with respect to contracts. As independent contractors, the AOM Midwives claimed discrimination under the Code. The argument made by the AOM Midwives could serve as a framework for other precarious workers in other contexts. The AOM’s choice to bring a pay discrimination case to the Tribunal has precedent in Ontario.
Midwives in Ontario
Midwives have been a regulated profession in Ontario since 1993. They provide healthcare in a patient-centred manner for normal to low-risk pregnancies, and the profession is overwhelmingly female dominated. Third party assessors have looked into appropriate compensation for these workers by comparing midwives’ level of skill, effort, responsibility, and working conditions to those of other health practitioners in the province.
In 1993, the MOH and AOM agreed that family doctors working in Community Health Centres had similar skill, effort, responsibility, and working conditions as Midwives. The third party assessment was similar to an assessment under the Pay Equity Act, and formed the basis of funding principles the parties relied on to negotiate. The AOM agrees family physicians and Midwives need not have the exact same compensation, but they should be relatively on par according to those funding principles. Yet, the government of Ontario has allowed the pay gap between midwives and other health care professionals to widen, undervaluing their labour in part, as found by the Tribunal, because they are female dominated.
Pay Equity and Discrimination Under Ontario’s Human Rights Code
The Pay Equity Act and the Human Rights Code have similar purposes: to remedy discriminatory treatment. The Pay Equity Actis far more specific, applying only to pay discrepancies between male and female dominated jobs.The Human Rights Code applies to discrimination other than gender discrimination, but the Tribunal has found that pay discrimination on the basis of gender is included under the Code. In other words, the Codecan be used to achieve pay equity where complainants can prove they or their job class is paid less than a male dominated job class with the same employer. The AOM used evidence from the multiple assessments about Midwives’ skill, effort, responsibility, and working conditions to show how Midwives are undercompensated as a female dominated job.
Many workers in Ontario have access to the Pay Equity Act’s protection, and a complaint process exists to enforce pay equity among female dominated positions compared to male dominated positions in the same establishment. Ontario’s Pay Equity Act applies to all employers, except private-sector employers with ten or fewer employees. However, the Pay Equity Actonly refers to employees, so its scope likely excludes independent contractors. Independent contractors, like midwives, are not employees. Still, the Human Rights Code provides a viable option for contract workers to challenge pay discrimination based on a Code-protected characteristic.
The Tribunal’s Finding and Remedies
The Midwives decision on the merits was rendered in 2018, and the Tribunal ordered the parties to negotiate a solution after finding discrimination. The parties failed to negotiate and, in 2020, the Tribunal rendered its decision on remedies, ordering the MOH to:
- Pay a 20% increase for Midwives retroactive to 2011
- Pay human rights damages of $7500 for each Midwife who signed on to this complaint
- Pay legal interest
- Conduct a compensation study with AOM, at MOH’s expense. The compensation expert conducting the study must be agreed upon by both parties.
The last Order is similar to the remedies the Pay Equity Actaffords to employees.
An Ongoing Struggle for Midwives
The MOH sought judicial review for both the decision on the merits and the remedy decision at the divisional court. The Court’s decision is delayed due to the ongoing COVID-19 pandemic, yet midwives are still working.The MOH claims the Tribunal’s finding of discrimination was unreasonable because the Tribunal failed to consider that most family doctors working in Community Health Centres are women.The MOH also alleges the Tribunal failed to consider the doctors’ and midwives’ different roles. However, both of these issues were addressed in the Tribunal’s 2018 decision.
Contrary to the MOH’s claim, a pay discrimination case need not rely on a precise comparator group. While such a comparison would be required under thePay Equity Act, the Code does not require it. Following the Supreme Court in Withler, an equality rightsChartercase, the Tribunal made clear that a perfect comparator group is unnecessary for a robust discrimination analysis.The AOM agrees that family doctors at community health centres and Midwives do not do exactly the same work.Further, community health centre doctors are historically a male dominated position, while midwives remain overwhelmingly female-dominated.While doctors’ pay increased over 7% in 2004, the MOH continued a wage freeze for midwives, and their wage gap widened.The Tribunal found that the MOH knew of a pay discrepancy between Midwives and other health care workers and, contrary to the funding principles established with Midwives in the 1990s, the MOH failed to take any steps to determine whether pay discrimination existed, much less to close the gap.
Applicability to Other Cases
One challenge for future complainants is finding evidence of pay discrimination. The equity-seeking group claiming pay discrimination must demonstrate a discrepancy between their (lower) wages and others’ (higher) wages in the same organization.
Where workers experience pay discrimination, the human rights process has several remedial advantages compared to pay equity statutes. First, the Pay Equity Act only refers only to employees, so independent contractors would likely be excluded.By bringing forward claims through the Tribunal, independent contractors can seek remedies for pay discrimination without being excluded. Second, complainants could rely on grounds other than gender in order to prove discrimination. For example, complaints could be based on race, the nexus between race and gender, or disability, rather than pay discrimination solely between male and female job classes. Third, multiple parties can be named as respondents, so employment relationships involving more than one employer could be challenged under human rights statutes. The Midwives decision reminds legal practitioners that pay discrimination can be remedied by human rights tribunals in Ontario.
Claire Michela, “Arguing for Pay Equity Based on Ontario’s Human Rights Code” Canadian Law of Work Forum (May 27 2020): http://lawofwork.ca/?p=12559
Brian May, “Precarious Work: Understanding the Changing Nature of Work in Canada” (2019), online: House of Commons at 10-11 https://www.ourcommons.ca/Content/Committee/421/HUMA/Reports/RP10553151/humarp19/humarp19-e.pdf.
Melissa Moyser, “Women and Paid Work” (2017), online: Statistics Canada https://www150.statcan.gc.ca/n1/pub/89-503-x/2015001/article/14694-eng.htm.
Pay Equity Act, RSO 1990, c P.7.
Human Rights Code, RSO 1990, c H.19, s 3.