‘It’s a constant struggle; there’s no straight line forward,’ says Cornish on achieving equality
After more than four decades of practising equity-focussed law, Mary Cornish has had a front-row seat on the changes that have been won over time.
Cornish’s practice has included human rights, disability rights and gender equality issues. “One of the things about the expansion of the realization of all of those rights is that they keep going back and forth; we progress and then we regress,” says the Toronto-based lawyer, who today is principal of Cornish Justice Solutions.
“It’s a constant struggle; there’s no straight line forward.”
On the issue of pay equity, for example, “in some respects we’ve regressed in that area, because it’s very difficult to enforce it,” says Cornish. Although Ontario has had “very progressive laws” since 1988, “we still have a very large pay equity gap, because essentially employers and governments don’t actually want to pay women fairly.”
Cornish chaired the Equal Pay Coalition, which she co-founded, from 1974 to 2016, and in this role played a key role in lobbying for and obtaining the passage of Ontario’s Pay Equity Act in 1987 and subsequent amendments to expand pay equity to women in predominantly female workplaces. The federal government, she says, has taken a long time to get one; Minister of Labour Filomena Tassi recently announced that the Pay Equity Act, which received royal assent in December 2018, will come into force on Aug. 31.
“There’s a lot of hostility from employers to [pay equity], and there’s a very powerful federal employer lobby.”
One of her fights has been for pay equity for Ontario midwives. In 2013, the Association of Ontario Midwives filed a complaint alleging the provincial government had discriminatory compensation practices towards midwives on the basis of gender. In 2018, the Human Rights Tribunal of Ontario issued a decision in favour of the midwives, and in 2020 it ordered a series of remedial relief actions, including back pay to 2011, which Ontario appealed to the Divisional Court. That court upheld the HRTO’s decision in June 2020, but “Ontario is still fighting it” with another appeal, says Cornish.
Mary Cornish is among the lawyers working today who, in 1997, appeared in the very first edition of Canadian Legal Lexpert® Directory; in April the 25th-anniversary edition was published.
In 1997, “there was a big win” on pay equity, Cornish notes; when the Tories came into power in 1995 they repealed the proxy comparison sections of Ontario’s Pay Equity Act, capped pay equity funding and introduced a new schedule abolishing the proxy method of comparison and eliminating the obligation for proxy workplaces to pay further adjustments above a certain amount. Cornish and her colleagues brought a Charter challenge, with Cornish acting on behalf of the Service Employees International Union (SEIU), representing female workers in long-term care homes.
The government defended the challenge, but in 1997, Ontario Court Justice Dennis O’Leary agreed that the new Schedule J of the Act violated women’s equality rights under section 15 of the Charter in discriminating against women in proxy sector workplaces: the women whose wages are most discriminatory compared to men.
When the government refused to fund the required adjustments when the legislation was brought back into force, another Charter challenge was brought in 2000, and a settlement of about $420 million was won, Cornish says; but then “it stopped funding [pay equity] again.”
Cornish’s work in advancing equality rights has been rewarded with the Order of Canada (2017), the Society of Ontario Adjudicators and Regulators’ Medal of Honour for outstanding contribution to the administrative justice system, and the Law Society of Upper Canada’s Law Society Medal for outstanding contribution to the legal profession.
As the chair of Ontario’s Human Rights Code Review Task Force in 1992, which undertook a comprehensive review the legislation, the task force’s report recommended transformative system changes which were the basis of Ontario’s 2006 human rights reforms.
Her work in labour law firms saw her representing unions that could afford large-scale litigation such as in the SEIU case, “because a lot of those Charter challenges can't be done without substantial resources.”
She has also done work for the World Bank, and a variety of consulting and publishing on international pay equity strategies.
Jane Doe and other cases
One of her best known and most rewarding cases saw her representing “Jane Doe,” a Toronto woman who was raped in her apartment in downtown Toronto in 1986 by a serial rapist who had attacked other women in the neighbourhood in the same manner. Doe successfully sued the Metropolitan Toronto Board of Commissioners of Police for damages, arguing that police should have warned women in her neighbourhood of the threat.
The victory in the case was important from a public safety standpoint, says Cornish, and in ending discriminatory policing practices; police “didn't warn women because they thought they'd get hysterical,” she says; at trial, the police said they didn’t warn women they knew to be at risk on the basis that the attacker would relocate and continue to offend. Jane Doe herself became quite active in working to get police to make changes, her lawyer adds.
Cornish also represented lawyer and disability advocate David Lepofsky on a pro bono basis in his successful fight to get stops announced on Toronto subway trains, to benefit the visually impaired.
Access to justice
And another positive change in the past 25 years? Technology has simplified hearings and expanded access to justice, Cornish notes. A Divisional Court hearing in the Midwives case was conducted last April over Zoom in three days, she says, and many of the technological changes made during the pandemic will be kept. This served to make the justice system more accessible, as individuals avoid the travel time and cost of getting to hearings.
“I think you’ll see some of those changes stay,” she adds. “The justice system is expensive, … so we have to figure out a way to have it and manage the cost as well.”