A tale of two Charter challenges

Recently, the Ontario Medical Association (OMA) held an online webinar updating members on the status of its excruciatingly long gestating Charter challenge against the government of Ontario. The challenge was initiated in 2015 after the repugnant unilateral actions of the then governing Liberals. Ironically enough, last week the Ontario Nurses Association (ONA) also informed the public that they were moving forward with their own Charter challenge.On the surface, it would seem that the challenges are about the same thing. Both argue that the government has too much power. Both rely on the charter’s protection of freedom of association. Both say that meaningful collective bargaining requires more than simply sitting across a table and talking.But there is a crucial difference.The OMA’s challengeIn 2015, the disastrous duo of Health Minister “unilateral” Dr. Eric Hoskins, and Premier Kathleen Wynne claimed the absolute right to impose changes to physicians compensation. The OMA, through the challenge, made a pretty straightforward argument. If a government could impose compensation, and physicians were unable to strike to protest, the two sides do not have equal bargaining power. A meaningful way of resolving an impasse was needed. The OMA’s challenge argued that the Charter’s protection of freedom of association requires an effective dispute resolution mechanism. It further argued that a binding arbitration framework (BAF) is that mechanism.The Supreme Court of Canada had just handed down a decision in the Saskatchewan Federation of Labour case that recognized that the right to strike for non-essential services is constitutionally protected because it can be an essential component of meaningful collective bargaining. This seemed to be very supportive of the OMA’s position that an alternate mechanism is therefore required for essential workers like physicians who can’t strike. However, the court did not say that every group deprived of the right to strike must automatically receive binding interest arbitration. That distinction matters (more on that later).Eventually of course, Premier “No-Wynne” realized the problems with her health minister as as the system was collapsing under his watch. She forced him to give doctors a fair BAF even though he was on record as opposing it. The OMA’s challenge shifted from asking the Supreme Court to impose a BAF, to asking the court to recognize that physicians have a constitutional entitlement to a BAF, so that no premier/health minister could take it away in the future. (I guarantee you that at some point in the future, some bumbling government will try to do this.)The nurses charter challengeIn contrast, Ontario’s nurses have had access to arbitration for over half a century. The Hospital Labour Disputes Arbitration Act (HLDAA) of 1965 states clearly that when collective bargaining reaches an impasse with essential employees, disputes are sent to binding arbitration. This was meant to prevent strikes and lockouts. (Physicians are considered independent contractors, so HLDAA does not apply to us.)The nurses are arguing that this is not enough. Their argument appears to be that taking away a worker’s most important bargaining weapon (the right to strike) and enforcing compulsory arbitration doesn’t make the system fair. Essentially, if employers know employees can’t strike, there is less incentive to compromise. They will just send everything to arbitration. This removes too much bargaining power according to the nurses.ONA says that this is particularly problematic when the issues being negotiated are not simply wages, but staffing levels, working conditions, patient safety and the ability of nurses to provide appropriate care.ONA is not saying arbitration is bad, just that being forced into it without both sides agreeing is bad.What has the Supreme Court been up to?Since 2015, the Supreme Court has continued to develop law around freedom of association and collective bargaining. It has made clear that meaningful collective bargaining is constitutionally protected. It has also recognized that the right to strike can be an essential part of that process.But there is an important limitation.The court has suggested that the charter does not necessarily guarantee a particular bargaining system. It protects the ability to engage in meaningful collective bargaining, rather than guaranteeing that negotiations must occur according to the precise system preferred by a union or professional association.Which really is where the difficulty lies for the OMA. The court would likely say that there must be a fair negotiations process, but may not impose the preferred option. They may also say: “well, doctors have a BAF now, come back to us when some future government unilaterally rips it up, and we can discuss it then.”The other issueONA represents employees in a conventional unionized labour relationship. The OMA represents physicians who, for the most part, are independent contractors rather than employees of the Ontario government. That distinction could become important in court. Not sure how, like I said, I'm a doctor, not a legal expert.The ironyThat is what makes these two Charter challenges particularly interesting.The OMA is saying: “We need constitutionally protected binding arbitration because we don’t have enough bargaining power.”The ONA is saying: “We don’t have enough bargaining power because we are forced into binding arbitration.”HoweverThe cases are connected by the same fundamental question. Exactly how much constitutionally protected bargaining power are representative organizations and people entitled too? That is why these two Charter challenges deserve to be watched together (assuming the OMA carries through). They may ultimately tell us something much bigger than whether nurses can strike or whether doctors are entitled to arbitration. They may define how much bargaining power the Constitution requires when the government is on the other side of the negotiating table.And in Ontario’s publicly funded healthcare system, that is a question with consequences far beyond the courtroom.Addendum:For physicians in Ontario, it does appear that the OMA is laying the groundwork to stop pursuing the challenge. There may be many good reasons for that (wait till a government takes away BAF and fight the issue then for a better chance of success). I encourage you to check out the recorded version of the OMA webinar on the Charter challenge, and to fill out the survey on the member survey on the issue.Dr. Sohail Gandhi is a former president of the OMA and opinions are his and not necessarily the opinions of the OMA Board. This article is a reprint from his blog site: justanoldcountrydoctor.com.

A tale of two Charter challenges

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