The Ford government is appealing February’s landmark Ontario Human Rights Tribunal pay equity decision that ordered the province to boost midwives’ wages by 20 per cent retroactive to 2011.

If upheld by Ontario Divisional Court, the decision could mean a payout of as much as $186,000 for a midwife with 10 years of experience and cost the province as much as $135 million, according to government estimates.

During a three-day hearing before the court this week, which is being held virtually due to the COVID-19 crisis, government lawyers argued the tribunal heard no evidence that sex is a factor in midwives’ pay.

The tribunal ignored evidence that most physicians in community health centres — the job midwives say is their closest pay equity wage “comparator” — are women, they said.

And the tribunal failed to consider evidence concerning the differences in training, responsibilities, patient populations and scope of work between physicians and midwives, the government argued.

No matter what the court decides, the government says it can’t implement the tribunal’s orders due to the global pandemic, the lawyers added in a separate motion to put the orders on hold.

The tribunal’s decision, which flows from a 2018 interim finding of gender discrimination covering the province’s 963 registered midwives, means salaries could jump to as much as $130,000 from about $107,000 today, according to the Association of Ontario Midwives, which launched the pay equity case in 2013.

That interim finding concluded that the midwifery profession has been chronically undervalued because it is primarily staffed by women, is concerned with providing care to women, and deals with a health-care issue associated with women.

Midwives, who must complete a four-year bachelor of health sciences degree and are on call 24 hours a day, seven days a week, currently earn between $82,000 and $107,000 a year. Annual salaries for family physicians working in community health clinics — a historic wage comparator for Ontario midwives — run between $190,000 and $220,000.

Last year, midwives supported 25,283 Ontario births, or about 18 per cent of all births in the province.

Midwives acknowledge the predominance of female physicians in community health centres, but note that the tribunal accepted midwives’ view that power and decision-making within medical institutions is still dominated by men.

“The government is taking a very narrow and technical approach to the issue of equity and human rights (in its appeal) that really misses the spirit of human rights law,” said association spokesperson Juana Berinstein. “Instead of seeing the forest, they are just focusing on the trees.”

Since this is the first time the tribunal has heard a case of systemic and historic gender discrimination, adjudicator Leslie Reaume’s ruling was most concerned about the impact of ministry funding, Berinstein added.

In response to the government’s motion to delay implementing the tribunal’s orders, midwife Elizabeth Brandeis, president of the Association of Ontario Midwives, said midwives are tired of waiting for their human rights to be recognized.

“The affront to our dignity, and economic and material well-being is made worse by the fact that we are being asked to do our part in the health crisis …without appropriate PPE (personal protective equipment),” she said.

Loading... Loading... Loading... Loading... Loading... Loading...

However, given the circumstances, Brandeis said midwives are prepared to delay the tribunal’s May 19 deadline to begin compensation to Sept. 1.

The hearing concludes Thursday.