Association of Ontario Midwives v. Ontario (Health and Long-Term Care), 2014 HRTO 1370

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Association of Ontario Midwives on behalf of Ontario Midwives

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by

the Minister of Health and Long-Term Care

Respondent

INTERIM DECISION

Adjudicator: Michael Gottheil

Date: September 17, 2014

Citation: 2014 HRTO 1370

Indexed as: Association of Ontario Midwives v. Ontario (Health and Long-Term Care)

APPEARANCES

Association of Ontario Midwives, Applicant ) Mary Cornish and ) Jennifer Quito, Counsel

Her Majesty the Queen in Right of Ontario, ) Robert E. Charney and as represented by the Minister of Health ) S. Zachary Green, Counsel and Long-Term Care, Respondent )

INTRODUCTION

1This is an Application brought under section 34(5) of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2On November 27, 2013, the applicant, Association of Ontario Midwives ("AOM"), filed this Application on behalf of its members, registered midwives currently practicing, or who had previously practiced, in Ontario. The Application alleges that the compensation and fee-setting frameworks established by the respondent Minister of Health and Long-Term Care "have since 1993 permitted perpetuated and condoned sex-based compensation for the complainant midwives." This Application is in the nature of a pay equity complaint, though as discussed below, the respondent denies the midwives are employees. Over 500 midwives have signed consents pursuant to section 34(5) of the Code to have the AOM represent them in this Application.

3The respondent filed a Response to the Application, and also filed a Request for Order during Proceedings. The Request seeks an Order, at this preliminary stage, dismissing the Application to the extent that it relates to matters outside the one-year limitation period set out in section 34(1) of the Code – that is, all allegations related to events and matters prior to November 27, 2012.

4The applicant opposes the Request. Following a case management teleconference, the parties agreed to provide written submissions on the Request, and the Tribunal scheduled a hearing for June 20, 2014 to hear oral submissions from the parties.

5In a "bottom line" decision, 2014 HRTO 1214, dated August 14, 2014, I held that:

I do not find that the Application as pleaded is untimely, and will not dismiss allegations which relate to events prior to November 27, 2012. In my view the events set out in the Application constitute a "series of incidents" within the meaning of subsection 34(1)(b) of the Code. This finding however, in no way limits any other arguments the respondent may seek to raise regarding the appropriate remedy that should be awarded if a violation of the Code is established by the applicant.

These are the Reasons for my Decision.

BACKGROUND

6As noted, the applicant filed this Application on November 27, 2013. It alleges discrimination in employment and contracts on the grounds of sex and association. The Application is highly particularized, comprising close to 450 paragraphs and includes two pay equity reports and nine volumes of supporting documents. It details events spanning two decades starting in the early 1990's when midwifery was introduced as part of the formal, publically-funded health care system in Ontario. It chronicles how the compensation rates and structures were first established for midwives in Ontario, and sets out the history of discussions, consultations, negotiations and meetings between the applicant and respondent from the early 1990's to the present. It also details the various consultant reports, memoranda of understanding, agreements, contracts, policies, regulations and frameworks relating to midwife practice and compensation over the years. All these events are set within the context of allegations of historical pay inequity and other claims of systemic discrimination experienced by women, individuals who provide services to women, and compensation for those working in women's health care. The applicant alleges, and it does not appear to be disputed, that 99.9% of midwives in Ontario are women.

7The Application seeks compensation for losses attributed to the alleged pay inequity back to 1994. The Application also seeks other remedies including a declaration of a Code violation and orders to ensure future compliance with the Code to address the alleged historical and ongoing systemic compensation inequities.

8The respondent has filed a full Response to the allegations. It does not appear to dispute much of the general historical narrative set out in the Application, though it characterizes the events quite differently. It denies that midwives have experienced gender-based compensation discrimination, and denies that it has violated the Code.

9It is not necessary for the purposes of determining this Request to set out the entire history of how the compensation rates and structures were established for midwives. It is important however to briefly explain how midwifery services are delivered in Ontario, and the relationship between the parties.

10To practice and be compensated by the respondent, midwives will form "midwife practice groups" (MPGs), which enter into contracts with "transfer payment agencies" (TPAs). The terms of these contracts are set by the respondent. Midwives are compensated by way of a block fee for a "course of care", and also receive compensation in the form of certain premiums, expenses, and contributions to a health benefit plan and a retirement plan (which are administered by the applicant). MPGs also receive payments for equipment, overhead and administrative expenses. The respondent also provides funding to the applicant for ongoing midwife professional development.

11The MPG-TPA template contracts established by the respondent generally run for three to four years, though they are sometimes extended past their expiry date until another comes into force. Since 1994, there have been a number of contracts under which midwives have been compensated.

12Compensation rates were initially established for midwives based on a 1993 consultant report which set rates as a percentage of compensation paid to physicians working in community health centres. Following the initial setting of midwife compensation, the applicant has advocated, not only for increases in compensation and benefits, but also for a re-evaluation of the basis on which midwifery services are valued and paid. Since 1994, there have been discussions between the parties on this issue, and a number of further studies conducted and reports commissioned. The applicant alleges, amongst other things, the respondent has failed in its obligation to ensure that midwives receive equitable compensation, has reneged on commitments to address alleged gender-based compensation inequity, while at the same time addressing the compensation demands of physicians and surgeons, which the applicant identifies as a traditionally male-dominated group.

13While the respondent denies that it negotiates contracts with the applicant (saying instead that it only consults), it is not disputed that the parties have entered into discussions with respect to terms and conditions of service delivery, and compensation rates for midwives. For a number of contracts, the parties have come to an agreement on the terms of the template contracts, and entered into a memorandum of understanding reflecting their agreement.

14The respondent also takes the position that midwives are not its employees, but are independent contractors. The applicant takes the position that, at least for the purposes of the Code, midwives are employees.

ANALYSIS AND DECISION

15The respondent's Request seeks an Order that the Tribunal define and narrow the issues in the Application, pursuant to Rule 1.7(h) of the Rules of Procedure, by dismissing the Application to the extent that it relates to matters outside the Code's one-year limitation period. In its written submissions on this Request, the respondent sets out the relief it seeks as follows:

a. Dismiss the Application to the extent that it relates to remuneration paid prior to November 27, 2012;

b. In the alternative, dismiss the Application to the extent that it relates to contracts that were terminated prior to November 27, 2012; and;

c. In any event, dismiss the Application as it relates to midwives who ceased practising prior to November 27, 2012.

16Although part of the relief requested by the respondent is framed in terms of dismissing the claim for alleged losses prior to November 27, 2012, the respondent's position as set out in its Request and in oral argument is broader. It seeks the dismissal of all allegations relating to events which occurred prior to November 27, 2012, on the basis they are untimely.

17Subsections 34(1) and (2) of the Code enable individuals to file applications to the Tribunal and set out the timeframes for doing so:

34(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

18The parties agree that at least some of the allegations in the Application relate to events within the one-year period preceding the filing of the Application. Accordingly, the question is whether the events alleged in the entire Application constitute a "series of incidents" within the meaning of subsection 34(1)(b) and, if not, whether the applicant can satisfy the onus of establishing that any delay in filing was incurred in good faith and there is no substantial prejudice to the respondent.

19The respondent makes a number of arguments in support of its Request. It says that the essence of the Application is a claim for compensation for alleged inequitable remuneration, which flows from the terms of the contracts in place over the years. It characterizes each contract as an independent, separate incident, not a series of incidents. It also argues that the temporal gap between the making of each contract is too large, which further undermines viewing the succession of contracts as a series.

20The respondent argues that subsection 34(1)(b) cannot be read to mean an applicant can go back 20 years (or more), to seek relief for incidents of alleged discrimination, of which it was aware, simply by asserting the incidents constitute a "series." It accepts that the applicant may rely upon the past events as context to those portions of the Application that are timely. However, it says that allegations relating to events prior to November 27, 2012 are outside the scope of the Code.

21The applicant argues first that the respondent is mischaracterizing the Application by focusing only on the contracts, and then further on the setting of the contracts as the alleged "incidents" of discrimination. It says the entire history, the discussions, negotiations and interactions between the parties, the reports, contracts, policies and practices, as well as the respondent's dealings with physicians, are all part of the allegations of gender-based systemic discrimination. The applicant also argues that this Application, one of the first cases of broad-based, systemic gender discrimination to be considered under the provisions of section 34(1), is distinguishable from the Tribunal's jurisprudence relied upon by the respondent.

22In analyzing the question before me, I will begin by considering the nature of the Application. I will then discuss the appropriate interpretation of the words "series of incidents" in the context of a claim of systemic discrimination. Finally, I will provide some comments on the scope of my determination, specifically related to the distinction between the finding that the Application is timely, and the question of what remedies might flow should a breach of the Code be established. Since I find that the Application constitutes a "series of incidents", I need not and will not address whether the applicant has met the onus under section 34(2).

23Consistent with Tribunal jurisprudence on preliminary Requests of this kind, I have assumed the allegations to be true, and in light of the comprehensiveness of the Application as pleaded, capable of proof.

Proper Characterization of the Present Application

24I agree with the applicant that the respondent mischaracterizes the Application. By focusing solely on the succession of contracts, and then further on the setting of each contract as the alleged incidents of discrimination, the respondent inaccurately describes the scope of the Application as pleaded, and misstates the nature of the claim being advanced. It is clear from a plain reading of the Application that it goes well beyond allegedly discriminatory contracts.

25The applicant's written submissions on this Request summarize the allegations being relied upon in the Application. It alleges that the respondent:

a. failed to rigorously monitor changes in the work (SERW) of midwives and their compensation and their relevant comparators, particularly the work of the male-dominated CHC family physician.

b. failed, in an ongoing way, to make visible and value the female work of midwifery. Although the Ministry stated it valued the work of the midwives, it failed to incorporate those statements of value into the compensation paid to midwives.

c. devalued, when setting midwifery compensation, the evidence of the benefits of midwifery while favouring the value and worth of the work of the male-dominated profession of physicians. This occurred despite the fact that the OMP's objectives include ensuring an "equitable funding mechanism that supports the integration of midwifery services into the health care system" and the Ministry's Excellent Care for All Act stating that "health care providers will be paid based on how well they make quality their main job."

d. ignored, despite policies that stipulate funding be "equitable and appropriate" and "consistent with the demand for and underlying value of the service," the high demand for midwifery services and the shortages of midwife providers and also failed to accord the appropriate compensation for the value of midwifery services that were consistently found to be of very high value and highly consistent with the objectives of the government's primary health-care reform.

e. failed, despite midwives meeting all the Ministry's objectives for a reformed primary health-care system, to reward midwives appropriately while substantially rewarding the male-dominated profession of physicians over the relevant period.

f. failed to incorporate a sex- and gender-based pay equity analysis into its compensation setting funding practices.

g. failed to have mechanisms in place to support and protect the midwifery profession from ongoing systemic prejudice and discriminatory barriers faced as a result of being a new small female profession being integrated into the healthcare system, where they provided care in a manner that challenged the status quo.

h. refused to contract with midwives on equal terms by outright refusing to negotiate pay equity-compliant compensation levels with their bargaining agent, the AOM.

i. refused to contract with midwives on equal terms by failing to have a negotiations process with the AOM in place to address required changes in compensation to ensure pay equity while at the same time engaging in negotiations with the Ontario Medical Association ("OMA"), the professional association of physicians, with respect to increasing their compensation and addressing changes in their work.

j. failed to actively, promptly and diligently ensure the compensation system continued to provide pay equity for midwives by conducting an ongoing pay equity analysis that reflected the significant SERW changes to their work since the Morton analysis (based on entry-level competencies) took place, and failed to address the lack of pay equity for midwives.

k. took advantage of the "caring dilemma" experienced by midwives and their professional requirements, i.e., midwives were conflicted about asserting their right to pay equity if it would impact the right of women to accessible and inclusive maternity and newborn care.

l. failed to adequately investigate and properly respond to and address the complaints made by the AOM on behalf of its members since 1994 about the inequitable gendered compensation midwives were receiving as a result of the Ministry's actions and instead denied that midwives were entitled to any pay equity entitlements as they were independent contractors.

m. failed to adequately respond to the 2003 and 2004 Hay Consultants reports on midwifery compensation and the Ministry's 2010 Courtyard Report, which it jointly commissioned with the AOM, all of which identified substantial pay equity gaps.

n. failed to accord sufficient value to women's health care by failing to pay midwives, who provide care for the gendered experience of pregnancy and birth, compensation which reflects the value of their work.

o. adopted an arbitrary and opportunistic approach by:

i. treating midwives as being bound by compensation restraint laws while also arguing midwives were independent contractors and therefore not covered by the Pay Equity Act.

ii. agreeing to negotiate with midwives when it suited the Ministry's agenda and declining to negotiate or refusing to characterize negotiations as such when it did not, though at all times it characterized such OMA interactions as "negotiations."

p. failed to exempt from restraint laws and policies required to ensure midwifery compensation is free of sex-based discrimination even though such laws and policies provided an exemption for adjustments required to comply with the Pay Equity Act or the Human Rights Code. This had an adverse effect on midwives who performed women's work since they were frozen at compensation levels that were not pay equity compliant.

q. failed to engage in any appropriate pay equity/human rights analysis with the AOM or otherwise so as to carry out appropriately its proactive Human Rights Code obligations.

r. permitted the midwives' pay equity gap to widen substantially over nearly 20 years, while at the same time arguing it is too costly to close it because the gap is so large.

26It is evident from the above summary that the alleged incidents of discrimination are not only the succession of contracts, nor do the alleged incidents relate solely to the contracts.

27Also, as noted earlier, the applicant seeks relief extending beyond remuneration for the alleged inequitable compensation structure and rates. It seeks a declaration of a Code violation, damages for injury to dignity and self-respect, as well as an order for future compliance, to ensure that the alleged discriminatory policies and practices, inequitable compensation, and injury does not reoccur. These remedies are significant aspects of the Application, and are not properly recognized by characterizing the claim as simply a complaint about compensation for a series of unfair contracts.

28In addition, viewing the claim in the way advanced by the respondent ignores the systemic dimension of the Application. The claim of systemic, gender-based discrimination is central to the Application, and therefore to a complete and proper analysis of its merits.

29The nature of systemic gender-based discrimination is in some respects unique as a form of discrimination, and has been recognized as such in academic literature, reports and jurisprudence. See, for example, Abella, Rosalie S., Report of the Commission on Equality in Employment. Ottawa: Minister of Supply and Services Canada, 1984; Ontario Human Rights Commission, Policy and Guidelines on Racism and Racial Discrimination, www.ohrc.on.ca; CN v. Canada (Canadian Human Rights Commission) 1987 CanLII 109 (SCC), [1987] 1 S.C.R. 1114 ("Action Travail des Femmes"); Public Service Alliance of Canada v. Canada (Treasury Board) 1999 CanLII 9380 (FC), [1999] F.C.J. No. 1531 ("PSAC"); Grange v. Toronto (City), 2014 HRTO 633.

30In Action Travail des Femmes, the Supreme Court of Canada adopted the concept of systemic discrimination as developed in the Abella report. At pp. 1138-9, the Court stated:

A thorough study of "systemic discrimination" in Canada is to be found in the Abella Report on equality in employment. The terms of reference of the Royal Commission instructed it "to inquire into the most efficient, effective and equitable means of promoting employment opportunities, eliminating systemic discrimination and assisting individuals to compete for employment opportunities on an equal basis." (Order in Council P.C. 1983-1924 of 24 June 1983). Although Judge Abella chose not to offer a precise definition of systemic discrimination, the essentials may be gleaned from the following comments, found at p. 2 of the Abella Report:

Discrimination … means practices or attitudes that have, whether by design or impact, the effect of limiting an individual's or a group's right to the opportunities generally available because of attributed rather than actual characteristics ….

It is not a question of whether this discrimination is motivated by an intentional desire to obstruct someone's potential, or whether it is the accidental by-product of innocently motivated practices or systems. If the barrier is affecting certain groups in a disproportionately negative way, it is a signal that the practices that lead to this adverse impact may be discriminatory.

This is why it is important to look at the results of a system ….

In other words, systemic discrimination in an employment context is discrimination that results from the simple operation of established procedures of recruitment, hiring and promotion, none of which is necessarily designed to promote discrimination. The discrimination is then reinforced by the very exclusion of the disadvantaged group because the exclusion fosters the belief, both within and outside the group, that the exclusion is the result of "natural" forces, for example, that women "just can't do the job" (see the Abella Report, pp. 9-10).

31In PSAC, Justice Evans discussed the particular nature of systemic gender-based wage discrimination, and how it must be understood through an examination of historical patterns (at paras. 117-118):

(....) the policy motivating the enactment of the principle of equal pay for work of equal value is the elimination from the workplace of sex-based wage discrimination. The kind of discrimination at issue here is systemic in nature: that is, it is the result of the application over time of wage policies and practices that have tended either to ignore, or to undervalue work typically performed by women.

In order to understand the extent of such discrimination in a particular employment context it is important to be able to view as comprehensively as possible the pay practices and policies of the employer as they affect the wages of men and women. (emphasis added)

32This perspective was also affirmed in Public Service Alliance of Canada v. Canada (Department of National Defence), 1996 CanLII 4067 (FCA), [1996] 3 F.C. 789 ("PSAC/DND"):

Systemic discrimination is a continuing phenomenon which has its roots deep in history and in societal attitudes. It cannot be isolated to a single action or statement. By its very nature, it extends over time.

33Systemic claims are about the operation and impact of polices, practices and systems over time, often a long period of time. They will necessarily involve an examination of the interrelationships between actions (or inaction), attitudes and established organizational structures. A human rights application alleging gender-based systemic discrimination cannot be understood or assessed through a compartmentalized view of the claim. Whether or not the applicant will be able to establish a violation of the Code remains to be seen. However, the applicant has filed an Application on behalf of over 500 individuals, particularized it in detail, and provided a clear theory that links the events to a claim of gender-based systemic discrimination. The applicant is entitled to have its claim understood, considered, analyzed and decided in a complete, sophisticated and comprehensive way.

"Series of Incidents": Interpreting s. 34(1)(b) in Context

34I now turn to the question of whether the allegations set out in the Application, and properly characterized, constitute a "series of incidents" within the meaning of section 34(1)(b) of the Code. As the applicant points out, this is one of the few cases in which section 34(1)(b) has been considered in the context of alleged systemic discrimination. This case appears to be the first instance in which the issue of timeliness has been considered in a case of gender-based wage discrimination.

35The starting point in any analysis of the Code, particularly where the facts are unique or a case is novel, is to reflect on the interpretive principles established by the Courts and the Tribunal: that human rights legislation must be given a fair, large and liberal meaning, and read in a purposive way which will best achieve its objects. It is also important to remember that the principle of a purposive approach relates both to the goals of achieving substantive equality and eliminating discrimination, as well as to reading the Code in a manner that ensures access to those who seek its protection. The words of Chief Justice Dickson in Action Travail des Femmes, above, remain among the most often cited and powerful statements of how human rights legislation must be interpreted:

(…) the case-law of this Court, some of which post-dates the judgment of the Federal Court of Appeal in the present proceedings, has a direct bearing on the outcome of this appeal. The Court has spoken on the proper interpretive attitude towards human rights codes and acts.

Human rights legislation is intended to give rise, amongst other things, to individual rights of vital importance, rights capable of enforcement, in the final analysis, in a court of law. I recognize that in the construction of such legislation the words of the Act must be given their plain meaning, but it is equally important that the rights enunciated be given their full recognition and effect. We should not search for ways and means to minimize those rights and to enfeeble their proper impact. Although it may seem commonplace, it may be wise to remind ourselves of the statutory guidance given by the federal Interpretation Act which asserts that statutes are deemed to be remedial and are thus to be given such fair, large and liberal interpretation as will best ensure that their objects are attained. See s. 11 of the Interpretation Act, R.S.C. 1970, c. I-23, as amended.

As Elmer A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87 has written:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

The purposes of the Act would appear to be patently obvious, in light of the powerful language of s. 2. In order to promote the goal of equal opportunity for each individual to achieve "the life that he or she is able and wishes to have", the Act seeks to prevent all "discriminatory practices" based, inter alia, on sex. (at pp. 1133-34, emphasis added)

See also Ontario Human Rights Commission v. Simpsons-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536 ("O'Malley"), at pp.546-47.

36The Tribunal has said that to constitute a "series of incidents", allegations must have some connection or nexus, such that they may reasonably be viewed as a pattern of conduct with a common theme, similar parties and/or circumstances, as opposed to events that are comprised of incidents relating to discrete and separate issues without some connection or nexus. See Alsaigh v. University of Ottawa, 2012 HRTO 2 at para. 8; Keith v. College of Physicians and Surgeons of Ontario, 2010 HRTO 2310 at para. 42. See also Duggan v. Villa Care Centre Nursing Home, 2010 HRTO 1695; Baisa v. Skills for Change, 2010 HRTO 1621.

37The Tribunal has also recognized systemic discrimination as a particular form of discrimination, and has accepted that in such cases, alleged incidents may find their connection and significance in patterns, practices and policies, a discriminatory culture, or a discriminatory environment. See for example Grange, Keith, and Alsaigh above. See also DeFreitas v. Ontario Public Service Employees Union, 2010 HRTO 618. Further, as I have discussed above, the Courts have emphasized that in a claim of systemic discrimination, allegations cannot be isolated to a single event or statement. Alleged incidents, along with particulars of historical practices, policies and attitudes, must be viewed comprehensively and in aggregate. It is this interwoven amalgam of conduct, actions, inaction, policies, practices, systems and attitudes which is alleged to result in differential treatment and discriminatory impact. The connections between incidents may not always be obvious and may not be purely linear or continuous. But together, the interconnected web is what constitutes the series of incidents.

38In this sense, the evolving Tribunal jurisprudence related to the question of timeliness in cases alleging systemic discrimination has been quite consistent: in order to constitute a series within the meaning of section 34(1)(b), the alleged incidents of discrimination must have some connection in terms of time, character, theme, ground and social area. In cases where systemic discrimination is alleged, the commonalities may be found in alleged patterns of conduct, policies, practices, organizational culture or attitudes that may not be discriminatory on their face.

39The issue the Tribunal has grappled with in these cases, and where there has been some divergence of approach, is whether to accept a simple assertion of a connection or nexus as sufficient to make seemingly separate and discreet allegations of discrimination, often with long gaps between them, and where the incidents may not appear to be related to a prohibited ground, a "series of incidents." Thus, in Alsaigh at para. 16, the Tribunal held that the "bare assertion of systemic discrimination cannot by itself create a nexus between separate occurrences". In that case, the Tribunal was not satisfied that the applicant had established a foundation for the claim of systemic discrimination, and therefore dismissed the allegations relating to events prior to one year preceding the application filing date. See also Keith at paras. 45-46.

40In Grange, however, the Tribunal questioned the extent to which the Tribunal should inquire into the strength of an assertion of systemic discrimination at a preliminary stage of a proceeding. In that decision the Tribunal took the view that it is generally not appropriate to embark on a searching inquiry about whether an applicant's claim of systemic discrimination could be sustained, because to do so would place an onus on an applicant not supported by the language of section 34(1). The Tribunal also noted that assessing the strength of a claim of systemic discrimination at a preliminary stage would require the Tribunal to make findings of fact without the benefit of a full evidentiary record. See para. 30 and ff.

41The issues noted in Alsaigh, Keith, and Grange do not arise in the present case. First, there is no question of whether I should determine, at this stage of the proceeding, if the allegations in the Application constitute a "series of incidents." The parties have jointly requested that I decide the question, and I am prepared to do so. Second, as I have already noted, the applicant in this case cannot be said to be making a "bare assertion" of systemic discrimination. To the contrary, the applicant has set out a detailed narrative of events, clearly connected in terms of subject, parties and time, articulated the theme which runs through the entire claim, and has supported the allegation of systemic discrimination with two expert reports. It is hard to imagine an application that provides more detail of connection, alleged patterns of conduct, common circumstances and unifying theme than the present Application. On the facts before me, I have no difficulty finding the allegations set out in the Application constitute a series of incidents. While the above reasoning is sufficient to reach this conclusion, as the respondent made a number of arguments based on existing tribunal jurisprudence, I will address those arguments.

The Application of the Tribunal's Established Interpretive Principles Regarding Timeliness: Continuing Breach, One Year Gap, and Due Diligence

42The respondent relies on a number of interpretive principles articulated in Tribunal jurisprudence, to support its claim that the allegations in the Application do not constitute a series of incidents:

a. whether alleged incidents constitute a "continuing breach" or a single incident with continuing effect: Keith; Garrie v. Janus Joan Inc., 2012 HRTO 1955; Leong v. Ontario (AG), 2014 HRTO 311.

b. that a gap between incidents of more than one year will generally break the series: Keith; Savage v. Toronto Transit Commission, 2010 HRTO 1360; Chintaman v. Toronto District School Board, 2009 HRTO 1225.

c. that an applicant is required to act with due diligence in advancing a claim of discrimination: Leong; Patterson v. Toronto District School Board, 2014 HRTO 635; O'Flanagan v. Ontario (Education), 2013 HRTO 121; Peixoto v. University of Ottawa, 2013 HRTO 150; Goodsell v. Ontario (Transportation), 2012 HRTO 2380; Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241.

43In my view, it is entirely possible to fit the present case within the ambit of the above principles (or their exceptions), and thus find that the Application constitutes a series of incidents. For example:

• The ongoing payment of compensation to midwives for services rendered (whether seen as wages or payments under contract) supports a finding of a continuous breach, rather than a single incident with continuing effect. I disagree with the respondent that the present case is similar to the facts in Leong. In Leong the applicant had not engaged in active employment for many years.
• If there is a continuing breach, there is no gap between incidents. In addition, the Tribunal has said the one-year gap principle should not be applied as a rigid rule. See Henry v. Waterloo (Regional Municipality), 2011 HRTO 1927. I would also suggest, consistent with the view expressed in DeFreitas and Grange, that the key question is whether there is a connection or nexus between incidents. The mere fact that there may be a gap of more than one year does not sever what is otherwise a clear series of incidents.
• The due diligence requirement has, by and large, been applied in cases considering whether the applicant has met its onus under section 34(2).

44Ultimately, however, and more importantly, I do not believe these interpretive principles provide for a complete or adequate analysis of what constitutes a series of incidents in a claim such as the one here. I reach this conclusion for three reasons.

45First, the respondent's framing of the Tribunal's jurisprudence might in some cases lead to a finding that the events pleaded in an application constitute a series of incidents, and in other cases may not. In either case, its rigid application could limit a complete consideration of a claim of systemic discrimination. For example, in the present case, the ongoing payment of compensation for services provided by midwives constitutes a continuing breach. But what of the respondent's practices and policies that are said to be inherently discriminatory? These allegations are fundamental to the Application. Arguably, viewed solely through the lens of the principles established in Garrie, the ongoing alleged discriminatory impact of these policies might not be considered as a continuing breach, but the continuing effect of a single incident – the imposition of the policy. If the policies were instituted prior to November 27, 2012, they might be considered as untimely and struck from the Application. Similarly, the applicant alleges that the institutional process for addressing alleged pay inequity was discriminatory and pleads various discussions, meetings and commissioned reports. If there are long gaps between these events, should this lead to a conclusion that the "series" of these events was broken by the passage of time? Would these aspects of the Application be struck, even though, from the perspective of systemic discrimination, they are clear part of a pattern of conduct alleged to violate the Code?

46In my opinion, to apply these principles as suggested by the respondent leads to an analysis that is both unduly limiting and unnecessary. It is unduly limiting because it ignores the very nature of systemic discrimination and how actions, inaction, policies and practice combine over time to result in systems that have a discriminatory impact on individuals and groups. It is unnecessary because it would require an applicant to show that each allegation had a linear and continuous connection to each other incident. Again this ignores the particular nature of systemic discrimination, and would undermine a full and proper consideration of cases of this type.

47Second, it is important to remember that these interpretive principles were developed by the Tribunal in the context of cases of individual discrimination. They are helpful in that context, but may not be in cases such as the one here. They should be applied in appropriate circumstances, where they assist in assessing whether allegations are properly seen as connected.

48Third, the phrase "series of incidents" in section 34(1)(b) is capable of encompassing both the notion that matters may be "connected" by way of a single chronological thread, and as an amalgam of events, policies, practices and attitudes. The phrase allows allegations to be viewed comprehensively and collectively. This view is consistent with a liberal and purposive reading of section 34(1)(b), and what one can presume the Legislature to have intended by using the words "series of incidents".

49Section 34 was part of the 2008 amendments to the Code. Previously, the Code required claims of discrimination to be filed with the Ontario Human Rights Commission ("OHRC"). The OHRC could refuse to deal with the claim if the facts upon which it was based occurred more than six months prior to its filing unless satisfied that the delay was incurred in good faith and there was no prejudice to any person affected by the complaint. In the previous legislation there was no reference to "series of incidents."

50The amended Code approaches timeliness quite differently. It introduces a limitation period of one year, and, if the "incident" (or incidents) of alleged discrimination occurs within the limitation period, the application is timely. It also introduces the concept of a "series of incidents", and provides that where the allegations constitute a series, so long as the last incident in the series is within the one-year limitation period, the entire application is timely. In these circumstances there is no requirement that the applicant satisfy the Tribunal that a delay in filing was incurred in good faith. Similarly, where there is sufficient foundation to consider the allegations as a whole, to be a series, the Tribunal is not asked to then scrutinize each incident in the series that may fall outside the limitation period and ask "could this claim have been brought sooner", or "would a reasonable person have known at an earlier stage that the events amounted to discrimination?"

51It is also important to note that the Legislature could have incorporated a good faith or due diligence requirement into the question of whether incidents in a series should be struck because they could have been advanced sooner. Similarly, the Legislature could have placed an express limitation period on claims of discrimination, where matters outside a particular period could not form part of a claim. See for example Employment Standards Act, 2000, S.O. 2000, c.41, s.111, and specifically ss. 111(4).

52The Code does not define the word "series." In my view, there is no reason to place a meaning on the word that would require, in all cases, regardless of context, a linear, continuous connection between all allegations. There is no basis for presuming the Legislature intended such an approach when it enacted section 34(1)(b). Quite the opposite; the concept of a "series of incidents" as comprising the whole of a claim is entirely consistent with the Legislature recognizing the unique nature of systemic discrimination (as well as other types of human rights claims), and that it intended that such claims could be brought and adjudicated in their full and proper context.

53At the time the amendments were introduced the concept of systemic discrimination was well-established and understood. Also, the Pay Equity Act was passed in 1987 to redress systemic issues of gender discrimination in compensation of employees in female job classes. In this light, it seems clear that the words "series of incidents" in section 34(1)(b) are capable of encompassing applications such as the one before me (and arguably specifically intended to do so). There may be a series of incidents, events, practices, that extend over a long period of time, which together form the claim of systemic discrimination. And that claim can be advanced, and will be considered timely, so long as it is brought within one year of the latest incident.

54Nothing I have said should be taken as addressing the general question of at what stage of a proceeding the Tribunal should consider whether an application alleging systemic discrimination should be determined to constitute a series of incidents. In any particular case, the Tribunal will need to consider how to exercise its discretion under Rule 1.7 to determine whether to entertain a request to dismiss an application as untimely, whether it should order further disclosure, particulars or hear evidence in order to properly consider the question. These are powers granted to the Tribunal under the Code in order to ensure that matters are dealt with fairly, justly and expeditiously, and on their merits.

55For all of the above reasons, I find that the events pleaded in the Application constitute a series of events within the meaning of section 34(1)(b).

Scope of the Findings

56My finding that the Application is timely does not mean that, if it is successful, the individuals on whose behalf it has been brought will be entitled to compensation dating back to 1994 as claimed. Indeed, many of the arguments advanced by the respondent in this Request may well be relevant to the issue of appropriate remedy should a violation of the Code be established.

57The Code provides the Tribunal with a broad remedial discretion. An applicant must establish that the relief requested is appropriate in all the circumstances. This may include issues of whether compensation is available under contracts that have long since expired and have been superseded by fresh contracts, the application of the principle of laches and estoppel. I make these comments to underscore the scope of my finding that the Application as pleaded is timely, but also to signal the issues I expect the parties may need to address at the appropriate time in respect of the appropriate remedy should the allegations succeed.