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Vavilov’s “Polar Star”: Legislative Intent and Analysing Impacts in Midwives

10 minute read

The Supreme Court of Canada’s now famed Vavilov decision[1] 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 decisions should be reasonableness or correctness. Complicating this question was legislative intent.

In Vavilov, the Supreme Court reaffirmed that legislative intent is the “polar star” of judicial review;[9] as a result, the new presumption of a “reasonableness” standard will be rebutted where the legislature indicates a clear intention to do so.[10]

In Midwives, the Court of Appeal for Ontario faced precisely one such polar star: s. 45.8 of the Human Rights Code, which states that decisions of the HRTO cannot be subject to an appeal or judicial review unless they are “patently unreasonable.”[11]

Despite this standard of “patent unreasonableness” no longer forming part of the common law landscape,[12] the HRTO and AOM sought to revive this third option under the light of Vavilov’s polar star: they argued that the clear language of s. 45.8 required the court to afford the “utmost deference” to the HRTO’s decision rather than engage in its now presumptive reasonableness analysis.[13]

The Court of Appeal rejected this argument, holding that Vavilov’s reinvigorated “reasonableness” analysis was capable of affording the requisite level of deference to the HRTO, consistent with the legislative intent resonant in s. 45.8.[14] Importantly, the court relied on the Shaw v Phipps decision,[15] which had previously ruled that the standard of “patent unreasonableness” found in s. 45.8 of the Code was capable of being incorporated into the (then) post-Dunsmuir landscape that recognized only reasonableness and correctness and rejected the argument that Vavilov’s affirmation of the primacy of legislative intent somehow overturned or reversed Shaw v Phipps.[16]

Following its fulsome reasonableness analysis, the court ultimately dismissed the appeal.

Midwives makes clear that there remain only two standards of review – no matter how bright a polar star. And with a new and improved approach to the presumptive “reasonableness” standard, it may be difficult for even the legislature to wedge a third option back onto the table.

Life after Vavilov – Impacts, Vulnerabilities, and Reasonableness

Not long after Vavilov was released, Justice Lorne Sossin noted that one of its subtler legacies may be its novel inclusion of impacts and vulnerabilities as part of the broadened reasonability analysis.[17] In his paper, Justice Sossin explored whether the robustness of this presumptive reasonableness standard could be a step towards a more “holistic” approach that properly weighs the impacts experienced by parties affected by the administrative decision under review or their unique vulnerabilities to that decision.[18]

Midwives reflects a step toward Justice Sossin’s “holistic” approach.

The first line of Midwives squarely places the vulnerability of the affected group at the centre stage: “Ontario midwives are almost exclusively women.”[19] These opening paragraphs go on to emphasize key findings by the HRTO that frame this vulnerability, noting that the administrative compensation decisions left Ontario midwives “exposed to the well-known effects of gender discrimination on women’s compensation.”[20] Before reviewing any of the specific facts surrounding the Ministry of Health’s impugned conduct, the court states that “it is important to acknowledge that the midwife profession is the ultimate sex-segregated profession: women providing a service for women in relation to women's health,” which creates “an obvious risk that midwives as a group would be under-compensated.”[21]

The court affords similarly diligent treatment to the question of impact. Immediately after its introductory overview, the court undertakes a careful review of the nature of the claim AOM was bringing – a claim for adverse impact discrimination and systemic discrimination.[22] This diligent unpacking of the pernicious nature of systemic discrimination sets an important tonal foundation to the Vavilov analysis that follows, one that centers impacts as part of its core analysis. The court goes on to highlight the specific findings of the HRTO that elaborate on the impacts of this discrimination, namely that given “the systemic nature and cumulative effects of policies and conduct on the compensation of midwives,” these midwives were subjected to systematic discrimination that “had the effect of ‘perpetuat[ing] the historic disadvantage midwives have experienced as sex-segregated workers’ and ‘undermin[ing] their dignity.’”[23]

The court in Midwives did not expressly compartmentalize its consideration of impacts or vulnerabilities within its Vavilov analysis. Vavilov’s answer, I suspect, is that it didn’t need to (“[t]hese elements are not a checklist for conducting a reasonableness review”).[24] However, it remains apparent in the framing and structure of the reasons in Midwives that these elements are not just one of many on a checklist; they are a foundational guiding light.

[1] Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (“Vavilov”); see also companion decisions that followed in Bell v. Canada, 2019 SCC 66 and Canada Post Corp. v. Canada Union of Postal Workers, 2019 SCC 67.

[2] See, for example, Awad, Dina, “Judicial Review post-Vavilov: Are Courts “correcting” administrative decisions?” Canada Regulatory Review. August 27, 2020.

[3] Midwives, para 1.

[4] Ontario v. Association of Ontario Midwives, 2020 ONSC 2839, para 3.

[5] Midwives, para 3.

[6] Midwives, para 4.

[7] Midwives, para 5.

[8] Ontario v. Association of Ontario Midwives, 2020 ONSC 2839.

[9] Vavilov, para 33, citing C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29, para 149.

[10] Vavilov, paras 33-35.

[11] RSO 1990, c. H. 19 (the “Code”). See also Midwives, paras 48-51, summarizing the legislative history of the amendments including the 2006 Human Rights Code Amendment Act, S.O. 2006, c. 30, which introduced this privative clause.

[12] See Dunsmuir v New Brunswick, 2008 SCC 9.

[13] Midwives, para 46.

[14] Midwives, para 77-82.

[15] 2010 ONSC 3884; aff’d 2012 ONCA 155.

[16] Midwives, para 76.

[17] Sossin, Lorne. “The Impact of Vavilov: Reasonableness and Vulnerability.” The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference 100; see Vavilov, para 106.

[18] Sossin, pp 271-277.

[19] Midwives, para 1.

[20] Midwives, para 4.

[21] Midwives, para 13.

[22] Midwives, paras 9-10.

[23] Midwives, para 12.

[24] Vavilov, para 106.

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