How Governments Try to Take Away Binding Arbitration

Binding arbitration. For Physicians across Canada it represents the only meaningful tool in a labor dispute with government. For moral and ethical reasons physicians are not willing to strike.  Physicians are an essential service for all Canadians. I believe the public recognizes and supports that.

Furthermore, not only does the Canada Health Act support binding arbitration for physicians, but so does a legal interpretation by Justice Emmet Hall, in his landmark review of medicare.  From Goldblatt Partners:

• the Supreme Court of Canada has ruled that “binding arbitration must be made available to essential service providers, whenever society concludes that disputes over their compensation or working conditions should not be resolved by strikes”

• Justice Hall rejected any notion that government could unilaterally reduce or determine payments to doctors, characterizing it as “wrongful conscription” of physician services. He concluded that, if legislation is to prohibit doctors from opting out of medicare (or extra-billing), it must also provide that “when negotiations fail and an impasse occurs, the issues in dispute must be sent to binding arbitration”.

Yet, Provincial Governments have been historically resistant to provide this tool for physicians. BC, Quebec and the Yukon still don’t have some form of arbitration for their physicians.  Nova Scotia tried to take it away from physicians in 2015, under the Public Sector Sustainability Act.  Of course, nothing unites doctors better than fighting a militant government (see Ontario under Kathleen Wynne!) and once the dust settled in Nova Scotia, there actually was negotiated agreement.  But the ensuing bad feelings seem to persist to this day as reports suggest there is still a “fractured relationship” in Nova Scotia, and needed health care reforms are being jeopardized as a result.

Why the resistance to arbitration?  Because some governments want to set a pay scale, rather than accept an arbitrator who will independently, and after thorough research, come up with a value of what a service is worth.

In Ontario, we are now seeing a few doctors taking steps that may well jeopardize the future of binding arbitration. As most physicians realize, a small group of specialists is attempting to break away from the Ontario Medical Association (OMA) and form their own bargaining group. Separating from the OMA would be a violation of the Representation Rights Agreement and of current legislation.

As I’ve mentioned previously, I really value my specialist colleagues. They’ve bailed me out on numerous occasions with sick, complicated patients. I couldn’t practice without their support.  But I think that in their anger over certain decisions made by OMA Council, they are not seeing the big picture here.

Any government is unlikely to have an interest in self-determination for specialists, or in picking sides. There’s no reason for any government to get involved in a “family squabble.”  All governments want a positive working relationship with doctors (on governments’ terms of course!).  To that end it makes no sense for a government to work with a small breakaway group, knowing it will upset the rest.  There’s no political gain there.

Ontario was the most recent province to get binding arbitration.  It took years of refusing to back down by physicians to get it. Even after then Premier Wynne offered it to physicians, it took months to negotiate the final binding arbitration framework (BAF).  The government wanted to include some unreasonable clauses in the BAF.

1. They wanted to ensure there was a hard cap in the agreement (as opposed to letting the arbitrator decide if one was needed).
2. They wanted the fiscal situation to be the main determinant of the award (not the actual value of the services provided).
3. They wanted the award to be based on sustainability (the only way to sustain the system would be to cut physicians more).
4. Most importantly, the government did NOT want CMPA rebates to be arbitrable (this would enable them to get rid of these in the future without negotiations).

It was only because the OMA Negotiations Team held fast to their principles that we got the fair BAF that we did.

So now, if some specialists try to separate, what then?  In an FAQ they distributed on Sunday, they have admitted the next step is to ask the government to repeal the Representation Rights Agreement (RRA) that the OMA has with the government.  And surprise surprise, guess what happens to be an appendix to the RRA, and would have to be deleted as well?  Why none other than the BAF (yes folks the BAF is part of the Rep Rights Agreement).  Essentially, if you repeal the RRA, you rip up the BAF for ALL physicians.

Frankly it seems unlikely to me that ANY government would  willingly offer a new BAF to any group of physicians.  Again, in their FAQ the small group only “believes the government shares the same view” on BAF as them, but they have offered no written proof.  To my mind, if any government does offer a new BAF to doctors, it seems likely that the ‘new’ BAF offer would have some or all of the limitations that the Liberals tried to force on us back in 2017.  (I would do the same if I was government.  That whole “all’s fair in love and war” thing).

I hope for the sake of my colleagues that physicians take a good long look before risking the unravelling of binding arbitration by supporting the break up of the OMA, and handing government the tools to undermine what we have achieved under our Representation Rights Agreement. We’ve been treated unfairly and fooled too often in the past.  Let’s not add to our woes by making it easier for any government to take advantage of us in the future.

Author: justanoldcountrydoctor

Dr. M. S. Gandhi, MD, CCFP. Practicing rural family medicine since 1992. I still have active privileges at the Collingwood Hospital. One Time President of the Ontario Medical Association. Follow me on Twitter: @drmsgandhi View all posts by justanoldcountrydoctor