Victory for Midwives as Divisional Court Dismisses Ontario’s Judicial Review Application

  • July 08, 2020
  • Saba Ahmad

Ontario’s midwives have won another round of litigation, in a pay equity saga stretching back almost a decade. Late last month, the Divisional Court rejected the province’s Judicial Review application of two decisions of the Human Rights Tribunal (“Tribunal”).

The Tribunal (i) accepted the midwives’ claims of gender-based pay discrimination, (ii) ordered a 20% compensation increase to midwives, retroactive to April 1, 2011, and (iii) awarded each eligible midwife an award of $7,500 for injury to dignity. The Tribunal further ordered the province to work to redress systemic discrimination with studies and analyses designed to promote a gender-sensitive approach to determining compensation levels.[1]

Standard of Review

As the Tribunal is an administrative body – and not a court – appellate review was taken to a panel of three judges of the Divisional Court, who adjudicated the government’s claims under the landmark framework, recently enunciated by the Supreme Court of Canada in Vavilov.[2] The panel declined to resurrect the “patent unreasonableness” standard of review, deciding it must  not interfere with the Tribunal’s decisions if they were justified in relation to the facts and law, and followed a line of analysis “that could reasonably lead the Tribunal from the evidence before it to the conclusion at which it arrived.”[3]