Vavilov's "Polar Star": Legislative Intent And Analysing Impacts In Midwives

• Published date: 16 June 2022
• Subject Matter: Employment and HR, Government, Public Sector, Litigation, Mediation & Arbitration, Discrimination, Disability & Sexual Harassment, Trials & Appeals & Compensation, Human Rights
• Law Firm: Lerners
• Author: Mitchell C. Brown

The Supreme Court of Canada's now famed Vavilov decision¹ sought to cut through the fog of how courts should undertake judicial reviews of administrative decisions. Ever since, lawyers and adjudicators have been closely watching how the courts apply Vavilov's revised framework - in particular, its presumption of a "reasonableness" standard and its reinvigorated approach to that reasonableness analysis.²

In the Court of Appeal for Ontario's recent decision in Ontario (Health) v Association of Midwives, 2022 ONCA 458 ("Midwives"), we see a significant step in clarifying Vavilov's legacy.

Quick Facts

In 2013, the Association of Ontario Midwives ("AOM"), on behalf of more than 800 midwives, brought a human rights claim against the Ontario Ministry of Health and Long Term Care alleging systemic discrimination for their compensation decisions going back to 1994, when midwives became a regulated profession.³

The hearing before the Human Rights Tribunal of Ontario ("HRTO") spanned nearly 50 days, with dozens of fact witnesses, ten experts, and thousands of pages of transcripts, affidavits, and exhibits.⁴

At the end of the hearing, the HRTO found there was insufficient evidence of discrimination for the period from 1994 to 2005 since the parties operated under a mutual commitment to agreed-upon equitable compensation principles established in 1993 that were specifically designed to mitigate against the "harmful assumptions and stereotypes concerning the value of women's work."⁵

However, the HRTO went on to find that after 2005, the Ministry of Health gradually (and then explicitly) withdrew from those principles in its compensation decisions, which resulted in the adverse gender-based treatment of midwives in the form of a widening compensation gap.⁶

Ultimately, the Ministry of Health was found liable for discrimination under the Human Rights Code, with the Tribunal later issuing a remedial order granting a 20% compensation adjustment back to 2011, as well as compensation for injury to dignity and self-respect in the amount of $7,500 per eligible midwife.⁷

The Ministry of Health then applied to the Divisional Court for judicial review of both the liability and remedial orders from the HRTO.⁸ These judicial reviews were unsuccessful, leading to the Midwives' appeal.

Applying Vavilov - Legislative Intent and "Patent Unreasonableness"

As with all judicial reviews, the key preliminary issue in Midwives was whether (post-Vavilov) the standard of review for the HRTO's...