For the third time in three years, the Ontario government has moved to unilaterally cut the fees it pays to Ontario physicians.

In response, Ontario doctors have taken to the social media airwaves, engaging in a Facebook and Twitter campaign opposing the cuts and attempting to convey that cuts to physician compensation will lead to cuts to care.

Perhaps because this strategy hasn’t gained much traction among Ontarians, last week the Ontario Medical Association (OMA) commenced a legal challenge to the constitutionality of the government’s unilateral actions, arguing that doctors have a constitutional right to binding and independent arbitration.

Readers may recall that the OMA brought an earlier constitutional challenge in 2012, but that was withdrawn when the government agreed to a non-binding conciliation and fact-finding process, which I described here.

The basis for the OMA’s constitutional challenge

The OMA’s constitutional challenge relies on the January, 2015 Supreme Court of Canada ruling in the Saskatchewan Federation of Labour case. The Court ruled for the first time that the right to strike is constitutionally protected by the freedom of association guarantee, as an integral part of the right to a meaningful process of collective bargaining. The Court described the right to strike as “the ‘powerhouse’ of collective bargaining” without which “bargaining risks being inconsequential — a dead letter.”

However, the Court also ruled that the right to strike can be legislatively restricted in essential services (as in Ontario for hospital workers, police, firefighters, and more recently TTC employees). Importantly for the purpose of the OMA challenge, however, the Court also held that where this restriction occurs, affected employees are entitled to a system of independent and binding arbitration, whereby a neutral third party determines their terms and conditions of employment.

Would this ruling apply to the OMA and Ontario doctors who, with some exceptions, are not employees but rather self-employed professionals? As I pointed out in a post on the earlier OMA Charter challenge, the government can be expected to argue, as a preliminary matter, that these constitutional protections do not apply to independent, self-employed physicians, who simply bill the government for the services provided. However, in response, the OMA has a reasonable argument that the constitutional guarantee of freedom of association extends to “everyone” and not only employees. Furthermore, given that Ontario physicians are legally precluded from privately charging patients for medically necessary services, they would appear to be at least as dependent as ordinary employees on a single funder or paymaster.

Assuming doctors are covered by constitutional protection for collective bargaining and the right to strike, the OMA’s central argument will be that, without an independent and binding arbitration process, physicians are deprived of the right to the meaningful bargaining process that forms part of the freedom of association guarantee. This argument has three stages.

First, the OMA will argue that physicians provide essential services, and that as a result of their professional and ethical obligations, and associated legal restrictions, they cannot as a practical and legal matter engage in various forms of “job action” by restricting or withdrawing their services.

Second, the OMA will contend that, as a result of physicians being precluded from engaging in strikes or other job actions, there is a significant power imbalance between the government and OMA, with the government being able to unilaterally implement its proposals. In the absence of the right to strike, the OMA will argue physicians are left with little, if any, countervailing power.

Third, the OMA will argue that the current process for determining physician compensation falls short of constitutional requirements. This is because it provides only for non-binding facilitation and conciliation resulting only in public recommendations, but does not afford doctors the right to a binding decision by an independent arbitrator, as the recent Supreme Court decision requires for essential service workers denied the right to strike.

Assessing the merits of the OMA’s charter challenge

The OMA’s position that Ontario physicians are obligated to a binding and independent arbitration process is in large measure premised on the assertion that they are legally and/or practically unable to engage in strike action.

Thus, a critical issue in any litigation will be whether the OMA can establish that the professional, ethical and legal constraints on the ability of doctors to engage in job actions are sufficiently extensive and intrusive as to undermine its ability to meaningfully bargain with government. On this front, it will likely not be sufficient for the OMA to point to a risk of limited public support for job action, or to a concern that a strike would not have its desired effect in pressuring government, or to the fact that doctors may be reluctant to engage in job action. Rather, the OMA will have to establish that, as a result of legal, binding professional/ethical restrictions on physician job actions, the OMA’s overall ability to engage in meaningful strike action is substantially curtailed.

On this score, the OMA would likely point to various degrees of professional, ethical and legal constraints on the ability of doctors to engage in job actions, including those contained in the CPSO Policy on Providing Physician Services During Job Actions. Notably, the CPSO policy does not appear to ban job actions altogether. Instead, it requires physicians to first explore all alternative options, including the need to first “proceed with the facilitation and conciliation process set out in the MOHLTC-OMA Memorandum of Agreement.” Then, if the dispute remains unresolved, as in the present circumstances, the policy seemingly permits physicians to engage in some forms of job actions, provided that the adverse impact on patients and/or the public is sufficiently mitigated. This includes the requirement that during any job action, physicians must provide medical care “that is urgent or otherwise necessary to prevent harm, suffering and/or deterioration,” including “ensuring health-care concerns are assessed and appropriately triaged so that urgent and/or necessary medical care can be obtained.”

The CPSO rules would appear to impose considerable restrictions on the ability of physicians to engage in job action. As well, the OMA may emphasize that, at the level of individual physicians, the extent of permitted job action is somewhat vague. Therefore, individual physicians may not know when withholding labour is permitted or prohibited, which in turn may deter physicians from engaging in any job actions for fear not only of risking harm to their patients but also of the consequences of running afoul of the CPSO restrictions.

Furthermore, the OMA will likely point to the fact that in at least seven of the remaining nine provinces, some form of binding and independent arbitration determines disputes over physician compensation. This, the OMA will argue, reflects a near consensus that physician job action is not, from a public policy perspective, an effective or appropriate mechanism for resolving negotiating impasses.

For its part, the government will likely respond that, while the CPSO policy and similar professional and ethical obligations place some restrictions on the scope of permitted job actions, physicians face no such outright legal prohibition on engaging in strike activity. This is in contrast to hospital workers, police and firefighters – all of whom are deemed to be essential and altogether legally prohibited from engaging in strike action.

Moreover, the government may well point to the decades-long history of physicians throughout Canada, including in Ontario, resorting to various forms of job action (or making credible threats to do so), and doing so without facing professional disciplinary consequences. This has included work to rule, phased-in withdrawals of services, voluntary office closures, cancellation of elective and non-emergency services, resignation of hospital privileges, and targeted time-limited rotating strikes.

Thus, for example, job actions by Canadian physicians include not only the 1961 Saskatchewan strike against medicare and the 1986 Ontario strike against the ban on extra-billing but also smaller job actions in B.C., Alberta, Manitoba, and Quebec in the late 1990s, a 2001 strike in New Brunswick, and a 17-day strike in Newfoundland in 2002 (one that incidentally resulted in an agreement to arbitrate).

Even in Ontario, in the mid and late 1990s, certain specialists (including obstetricians and orthopedic surgeons, joined by some general surgeons and family doctors) engaged in one- and two-day withdrawals of services, while ophthalmologists and anesthesiologists threatened job action as recently as 2012.

Finally, the government may argue that it is premature to determine whether any legal or ethical restrictions on physician job action are so substantial as to undermine meaningful collective bargaining. In this respect, the government may argue that it is not legal or professional/ethical restrictions that explain why physicians have not engaged in job action; rather, the government may suggest that the OMA has made a deliberate decision to avoid taking job action because the public would perceive it as adversely affecting patients, and/or that the OMA’s strategy has been to highlight that it is government cuts that will have that same adverse impact. In addition, the government may argue that the OMA is not taking job action because it is concerned that neither physicians nor the public will support job action.

Notably, one implication of the government’s likely emphasis on the legitimacy of job action is that if the government were successful, this would potentially institutionalize physician strikes as the appropriate mechanism when compensation disputes arise with government.  Given the extent to which physicians seemingly perceive themselves as being increasingly under siege by unilateral government action, if they are told by government and by the courts that job action is the only way they can legally and constitutionally respond, then this may be precisely what will occur. Whether nor not this type of adversarial conflict and confrontation is in the public interest, and is an outcome the government wants to encourage, is a matter the government may want to seriously consider.  The warning to be “be careful what you ask for” may be particularly apposite in this context.

By way of summary, if the court concludes that the OMA has established that the legal and professional/ethical restrictions on physician job action are sufficiently extensive so as to undermine the OMA’s ability to engage in meaningful bargaining, then the OMA will have a strong argument that the government cannot act unilaterally. Instead, the current and any future compensation disputes will need to be resolved by binding and independent arbitration.

On the other hand, if the court concludes that the restrictions on physician job actions are not so substantial as to preclude physicians from engaging in meaningful strike activity, then the traditional rules of the right to strike in a collective bargaining context will apply. This would mean that the government would be legally permitted, once an impasse is reached, to impose its last offer to the OMA. In turn, the quid pro quo would be that, if the OMA and its members did not agree with or accept the terms of that offer, they would have the right to respond by engaging in concerted job actions.

Implications of shifting the dispute to the courts

Clearly, the OMA has determined that it has no choice but to resort to legal action.

To some extent, this now leaves the ball in the government’s court. It can choose to continue down the unilateral path it has chosen, including the ongoing imposition of claw-backs and fee cuts over the many years that litigation with the OMA is likely to ensue.

However, as I have suggested in an earlier post, the Ontario government, which professes to be strongly committed to a single payer public health system, should be more concerned than it appears to be about the real possibility that both physician leaders and mainstream physicians who would otherwise be supportive of the public medicare system may be pushed into support for a right to practice outside of the public system if they feel that they cannot be treated fairly within the system.

Moreover, constructive engagement by the OMA and physicians is necessary if we are to see the successful implementation of the structural reforms needed to preserve and improve our public health care system. This will inevitably be undermined by perpetual conflict with the OMA, and by a collective perception by physicians that they are being treated unfairly.

As a result, rather than engaging in what would likely be years of courtroom battle by trial and then appeals, it is to be hoped that, as in 2012, the pending specter of litigation will enable both the government and the OMA to find common ground in the public interest.