Court File and Parties

CITATION: Ontario v. Midwives, 2020 ONSC 2652 DIVISIONAL COURT FILE NO.: 131/19 DATE: 2020-05-04

SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT

RE: Her Majesty the Queen in right of Ontario as represented by the Minister of Health and Long Term Care, Applicant/Moving Party AND: Association of Ontario Midwives, Respondent

BEFORE: Backhouse, Pattillo and Lederer JJ.

COUNSEL: Zachary Green, Courtney Harris and Yashoda Ranganathan, for the Applicant/Moving Party Mary Cornish, Adrienne Telford and Lara Koerner Yeo, for the Respondent

HEARD at Toronto: April 23, 2020

Endorsement

BY THE COURT

[1] At the conclusion of the Minister of Health and Long-Term Care’s (the “Ministry”) Judicial Review Application in respect of the September 24, 2018 and February 19, 2020 decisions of the Human Rights Tribunal of Ontario (the “Tribunal”), we allowed the Applicant’s motion to stay the February 19, 2020 decision (the “Remedy Decision”) for a period of 10 days following the release of our decision on the Application, with brief reasons to follow. These are our reasons.

[2] The Tribunal’s September 24, 2018 decision found the Ministry liable for discrimination under the Human Rights Code in relation to its compensation of midwives in Ontario but deferred the issue of remedy to allow the parties to resolve the issues identified directly. This was unsuccessful.

[3] The Application was commenced in November 2018. The parties subsequently returned to the Tribunal to deal with the issue of remedy. Following written submissions, the parties made oral submissions to the Tribunal on May 26, 2019.

[4] The Remedy Decision made remedial orders requiring the Ministry to pay $7,500 to each midwife eligible for compensation (potentially 1,150) plus interest from the date of the midwives’ application to the Tribunal in 2013 within 90 days (May 19, 2020); requiring the Ministry to compensate the midwives for lost income for the period from April 1, 2011 to 2014 within six months (August 19, 2020); to conduct (beginning May 19, 2020) and complete (by September 19, 2020) a compensation study to review the compensation paid to midwives for the period 2014 to 2020; and conduct a gender-based analysis to assess the gender impacts of the policies and practices associated with the compensation of midwives.

[5] Although initially scheduled to be heard in January 2020, the Ministry’s Application was adjourned to April to await the release of the Remedy Decision. With the onslaught of Covid-19 and the subsequent closure of the courts, the hearing was again postponed, this time indefinitely. Given the pending deadlines for compliance in the Remedy Decision, the Ministry commenced its motion to stay the Remedy Decision until its Application had been decided. In early April, when the court started to again hear non-urgent matters, the Application was scheduled to be heard for three days beginning April 21, 2010. At the same time, the stay motion was scheduled to be heard by the court, if required, following the hearing of the Application. As we reserved our decision at the conclusion of the Application, the Ministry proceeded with its stay motion.

[6] The Ministry submitted that the Remedy Decision should be stayed until the court releases its decision in the Application together with a further 90 days on the ground that compliance with the Remedy Decision would divert the Ministry’s staff and financial resources away from the Province’s critical and time-sensitive response to the current state of emergency caused by the Covid-19 pandemic crisis. The Ministry further submitted that the Tribunal’s requirement to pay the eligible midwives $7,500 prior to the court’s decision in its Application would result in it being onerous and practically impossible to recover those monies in the event it was ultimately successful on its Application.

[7] While the midwives opposed the motion given their frustration with the Ministry’s significant delay in properly compensating them, they acknowledged the seriousness of the current health crisis and its impact on the Ministry’s resources. They too have been actively working to assist with the crisis. Given the history, however, they submitted that the monies directed by the Tribunal to be paid to them should be paid into escrow by the Ministry to await the court’s decision.

[8] Given the evidence and the circumstances which exist, we are satisfied that the Ministry has met the three-part test for a stay as set out in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R 311.

[9] Both parties agree that the Application presents a serious issue to be decided. Further, permitting the Remedy Decision’s remedial orders to come into effect prior to our decision in the Application will, in the present circumstances and as the evidence establishes, directly impact upon the Ministry’s actions and resources in dealing the Covid-19 crisis. Such an outcome will be injurious to the public interest and result in irreparable harm.

[10] Finally, we consider that the balance of convenience favours granting a stay of the Tribunal’s remedial orders until we are in a position to release our decision in the Application. The current situation arises primarily from the late release of the Remedy Decision coupled with the subsequent events arising because of Covid-19. There is no question, in our view, that the Ministry’s staff and resources need to be focused on dealing with Covid-19. On the other hand, at its worst, while payment to the midwives will be delayed, they will be paid interest on the money for the delay.

[11] In granting the stay, we did not feel it appropriate to extend it for a period of 90 days after the release of our decision as requested by the Ministry. At present, we are unable to say when our decision will be released. Nor do we know what the status of the fight against Covid-19 will be at that time. In our view, a period of 10 days following the release of our decision is sufficient to enable either party to consider their position and respond accordingly.

[12] Finally, there is no basis in the evidence to require the Ministry to pay into escrow the monies due to the midwives on May 19, 2020 pursuant to the Remedy Decision. In the event the Application is unsuccessful, we are satisfied they will receive their money.

[13] The Ministry was successful on the motion but indicated it does not seek costs. The Midwives do not seek costs. Accordingly, there is no order as to costs.

”N. Backhouse J.”________________ Backhouse J.

“L.A. Pattillo” __________________ L.A. Pattillo J.

”T. Lederer J.”_______________ Lederer J.

Date: May 4, 2020