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The public interest in binding arbitration for doctors

Howard Goldblatt and Steven Barrett

March 15, 2017

Howard Goldblatt and Steven Barrett counter the Toronto Star’s editorial view of binding arbitration for physicians

In an op-ed, Howard and Steven disagree with Toronto Star editorials and columns that the Ontario government should not agree to binding arbitration for physicians, because it would result in unreasonable compensation increases.

Howard and Steven observe that the founders of medicare viewed binding arbitration as a principled and necessary trade off for having a publicly funded health care system in which physicians would be prohibited from opting out, or extra billing. The principle of binding arbitration is reflected in the Canada Health Act and was advocated in Justice Emmet Hall’s landmark review of medicare:

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.”

Howard and Steven also note that claims regarding inflated compensation are not borne out by the experience in other provinces that have systems of binding arbitration for physician compensation:

… the experience in provinces where binding interest arbitration for physician compensation is in place — which happens to be the majority of other provinces — is that, where physicians are treated fairly and respectfully, they have proven themselves to be more than willing and responsible partners in working with government to improve the health care system. Moreover, the norm for negotiated or arbitrated outcomes has not been one of excessive fee increases.

Moreover, 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”:

… Significantly, this is already the case for all other essential service providers in Ontario (including hospital workers, police and firefighters). Indeed, unless we want to face the continuing prospect of physician job action or unilateral government action in each successive round of negotiations, the only way to resolve legitimate differences at the bargaining table is through a fair and independent binding arbitration process.

The Ontario Medical Association has welcomed the Ontario government’s recent promise to negotiate an interest arbitration process when negotiations resume. However, as Howard and Steven explain, the OMA is concerned, based on the government’s previous actions, that the government may not follow through with the promise. In those circumstances, they suggest, it is understandable that the OMA is planning for that possibility, and admonish the Toronto Star’s attempt to sensationalize the issue:

… [T]he OMA has been clear that it would support job action only as a last resort, and only to secure a durable and lasting binding interest arbitration process — one intended to ensure physicians working within medicare will never have to resort to job action again. The OMA has also repeatedly emphasized that job action would never compromise access to essential and urgent medical care.

Read the entire op-ed here.


Howard Goldblatt, Steven Barrett

Practice Areas

Labour Law