Province pulls out of arbitration with Ontario Medical Association

TheStar.com
December 12, 2018
Theresa Boyle

The provincial government has pulled the plug on arbitration with the Ontario Medical Association, stating it has lost confidence in the organization’s ability to represent its members after some high-paid specialists voted to break away.

But the OMA still plans to participate in the process and argues that provincial law allows for arbitration to continue, even if one side pulls out.

The Ford government sent a letter to arbitrator William Kaplan on Monday evening saying it “lacks confidence that the OMA can deliver on the outcome of any arbitration decision.”

The OMA charges that the government is violating a legal agreement for a “binding arbitration framework” that the two parties signed off on last year. The majority of OMA members also voted in favour of the process.

The development is the latest snag in what has been a tumultuous, almost five-year dispute aimed at achieving a new fee contract.

It comes two weeks after a group of high-billing specialists -- faced with the prospect of fee cuts -- voted to split from the OMA. The group, which calls itself the Ontario Specialists Association (OSA), wrote to Health Minister Christine Elliott on Nov. 30 and requested that the arbitration process, as it relates to them, be “immediately suspended pending the extraction of the OSA specialist groups.”

The letter, a copy of which has been obtained by the Star, is signed by radiologist Dr. David Jacobs, who has spearheaded the split. He is the vice-president of the Ontario Association of Radiologists and an outspoken supporter of Premier Doug Ford.

The government’s negotiating team sent a letter to arbitrator William Kaplan on Monday evening, saying it “lacks confidence that the OMA can deliver on the outcome of any arbitration decision.”

The letter, which has also been obtained by the Star, goes on to say: “Consequently, the (health ministry) cannot agree to the continuation of the arbitration proceeding.”

But a subsequent letter to Kaplan, this one from the OMA, quotes the Arbitration Act, which states that arbitration must continue, even if one party fails to appear, unless a “satisfactory explanation” is provided.

“It is our position that the hearings must proceed as scheduled,” states the letter signed by lawyers Howard Goldblatt and Steven Barrett, who represent the OMA in the proceedings.

“The (government’s) suggestion that it can unilaterally discontinue these proceedings is unprecedented (and) an affront to the rule of law which insists the government is not above the law, and must comply with its legal and contractual commitments,” it reads.

The letter goes on to argue that the arbitrator should not take heed of the government’s “unfounded and totally erroneous” suggestion that the OMA is unable to deliver on the outcome of an arbitration decision.

The letter finishes with: “We assume that the (government) and its council is aware of the potential consequences of their non-attendance.”

It’s unclear what those consequences would be.

Press secretaries for Ford and Elliott did not respond to numerous questions contained in emails from the Star on Tuesday.

For more than a week, the Star has been asking the government if it will recognize the breakaway specialist group. All the government would say was that it was seeking legal advice.

Late Tuesday, the leadership of the OMA emailed a statement to the organization’s 31,000 practising members, calling the government’s move “shocking” and charging that it is trying to “undermine the OMA’s legal right to represent Ontario’s doctors.”

“Election promises by the premier included fair treatment of doctors. Ending the arbitration process does not serve the interests of doctors or the 13.7 million patients we serve,” reads the statement, which is signed by OMA president Dr. Nadia Alam, board chair Dr. Tim Nicholas and CEO Allan O’Dette.

“We know this will be upsetting to members but we are moving quickly to manage the situation,” it continues, noting that the OMA board and its legal counsel plan to discuss next steps on Wednesday.

In the flurry of back and forth letters, Craig Rix, a lawyer representing the government, wrote to the OMA on Tuesday to say the province wants to “have a broader dialogue” with doctors to address representation and compensation issues and will be in touch in the new year.

It says the specialists who voted to separate from the OMA represent 10 per cent of all doctors and approximately 17 per cent of billings.
Golblatt and Hicks wrote back, disputing the results of the vote -- as many others have -- and charging that less than 5 per cent of the profession voted in favour of splitting from the OMA.

The stakes are high in the dispute. The government pays doctors more than $12 billion dollars, or 10 per cent of the entire provincial budget.

Achieving a new contract is also important because it has a huge impact on how services are delivered.

Arbitration hearings started prior to June’s election. They were already called off once, within days of the Conservative’s victory, because the new government wanted to try to reach a negotiated settlement. But talks between the new government and OMA broke down in early October, prompting the dispute to go back to arbitration.

Arbitration hearings were set to resume on Saturday and wrap up before Christmas.