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Canada Ontario doctors to launch Charter suit against province over fee cuts

Dr. Ved Tandan, president of the Ontario Medical Association, speaks to reporters during a press conference in on January 15, 2015.

Darren Calabrese/The Globe and Mail

Ontario doctors are ratcheting up their fight with the province over compensation, taking the government to court over its refusal to settle a lengthy dispute over fees through arbitration.

The Ontario Medical Association announced Thursday that it will launch a Charter challenge against the province – its second in the space of three years – asking the Ontario Superior Court of Justice to strike down two recent rounds of fee cuts imposed this year by the government. It is asking for the court to rule that any future differences in bargaining be resolved through binding dispute resolution.

Ontario doctors have been without an agreement for more than a year and this latest action follows the imposition of a 1.3-per-cent reduction to fee-for-service rates on Oct. 1 and deeper cuts targeted at specific services. The latest changes come after a 2.65-per-cent across-the-board cut imposed by the province in January after contract talks with doctors collapsed.

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Doctors have been calling for the government to settle the matter through binding arbitration – an option rejected by the province earlier this month, which prompted the OMA to consider legal options.

"We believe the actions they have taken are unconstitutional," Ved Tandan, the OMA's past-president, said Thursday in an interview following a board meeting that endorsed the action.

Dr. Tandan said the OMA, which represents the province's 34,000 doctors and medical students, has done everything it can to resolve the dispute over payment with the province. The Charter challenge, he said, is about process.

"We believe we have a strong case," Dr. Tandan said, pointing to recent rulings that he said support the doctors' case.

He also noted that eight provinces and one territory have binding arbitration in place for their doctor negotiations.

In response, Health Minister Erik Hoskins said in a statement that by refusing to continue to negotiate, doctors left the government with no option but to impose a plan. The province, he said, is continuing discussions with the OMA, including a meeting this week with its president.

Still, Dr. Hoskins said, "the government must take steps to ensure other key priorities are well funded and expanded. If every dollar of budgetary increase goes to higher [doctor] salaries, we cannot tackle other patient priorities."

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Toronto lawyer Steven Barrett, a constitutional and labour law expert with Goldblatt Partners who has acted for the OMA in the past, said recent case law on freedom of association has established that the right to strike is constitutionally protected and that where those providing essential services can't strike, they are entitled to independent and binding arbitration.

"The OMA has a pretty respectable argument," Mr. Barrett said, but it will need to establish that its members do not have the right to strike.

Keeping wage increases for physicians in check is key if the Liberal government hopes to tame the provincial deficit. Doctors' pay accounts for about 25 per cent of health spending and 10 per cent of the provincial budget.

Late last year, the OMA rejected a three-year deal that offered to increase the pool of funds available for doctors' pay by 1.25 per cent each year, saying the extra money wasn't enough in a province where the population and number of doctors continue to go up.

The group turned to the courts under similar circumstances in 2012 after the Liberal government imposed cuts, but that challenge was withdrawn after a deal was struck with the province in which it agreed to a framework for future negotiations. That process was followed for these latest contract talks, but the result – which was not binding – failed to achieve a settlement.

The challenge will formally be launched next week, a spokeswoman for the OMA said.

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