31 thoughts on “Looking for Reasons to Oppose Binding Arbitration”

1. On the whole I agree with you but there is a clause that says the Arbitrator can take into account current economic conditions in his decision. This does open us up to the government in effect doing just what you said in Big Decision section. We should also have recourse to recover the unilateral clawbacks. I regard it as a singular failure of the OMA not to go after this in the past.

   1. Thanks Ernest.

      You mentioned economic conditions: good point. IF that were a trump card for the government, I agree, this offer would not be a good one. But this offer specifically puts ‘economic’ concerns as only one of many criteria, in no order of importance, than the arbitrator can consider. Again, the arbitrator gets to consider it, NOT government. Government loses its trump card of, “Oh dear, the economy is so bad. Sorry. We cannot do what we said we would.” [I’m going way over the top here, but I do so to make a point that a number of people have raised.]

      You make another good comment about recovering clawbacks. I agree! That happens in the PSA negotiations. This BA negotiation was only about process, not outcomes.

      Thanks again!

2. Congrats again Shawn!

   Thanks for the article. My only question and hesitation with the proposed BA agreement is in regards to the issue around job action. My understanding is that if this ratified by the membership, any type of job action that affects patient care in the future will essentially be outlawed.

   I think 2023 will be a very significant year for physicians, in that the current agreement for CMPA reimbursement will be up for renegotiation. I don’t think it’s a secret that the government is going to try and make physicians pay a much larger proportion of fees than what we pay now. Even small changes to the system could really cripple some specialties financially and make any (hopeful) gains in this upcoming contract seem like peanuts. In that case, I don’t think it would be a bad idea to be able to have options, which may include some type of job action to try and gain leverage. Would activities like what the OB’s did in the 90’s be off the table if this is passed (my father is an OB and so I remember this action quite well).

   Thanks!

   1. Thanks Harpaul!

      Good point about 2023. There are a number of ‘job actions’ that we can take. In fact, everything is open EXCEPT withdrawal of patient care. We can march, protest, demonstrate and otherwise cause havoc. We just cannot leave our patients to suffer. Seeing that most doctors do not want to stop seeing their patients, this seems like a good thing.

      Also, we argued for BA because we cannot strike. We argued for something new, because of something we lacked. It would be odd to ask for BA and strike action. It’s like arguing for a boat because we cannot swim. And then after we are offered a boat, we say that we want to go swimming.

      Sure appreciate your comments!

      Cheers

      1. Thanks for the reply Shawn. Fair enough. I suspect this agreement will pass very easily from the membership, and hopefully then discussions can take place about a new TPSA.

         I assume I am in the minority here, but I personally have never felt strongly about getting BA. The history in other provinces shows that the government of the day can take it away when they want (Manitoba and NS), and also ignore the arbitrators decision (BC) if they don’t like it. I think having the possibility to engage in job action is the ultimate trump card to keep the government honest. The things that we will still be able to do as a result of this BA proposal, is in my mind not effective (writing letters/disengaging form LHIN). I would hope that no physician would ever engage in job action that would directly harm patients or cause them to suffer. I certainly wouldn’t. But I think there are many ways of doing job action that can avoid this, but still allow us to get our point across. To give this up is something that I would not do, and that is why I plan to vote no.

         Huge thanks to everyone who put this together. This is only the start, I assume the TPSA negotiations will be even more important.

         Good luck,

      2. Shawn, I’d like to add that we too share the concern with respect to the CMPA subsidy in 2023. Under the status quo, the government could unilaterally decrease or even end the CMPA subsidy. For that reason we insisted that this be inclduded in the scope of arbitration. Therefore if the BAF is ratified, a dispute that leads to impasse over the government’s requirement for CMPA premium relief would be decided by the board of arbitration. Hope that helps to clarify.

3. Economic situation means things like GDP, CPI, etc. Ontario is currently one of the better performing provinces in Canada. It does not mean “fiscal” ie budget deficits. We resisted this language. It also does not contain “ability to pay” which is pretty much standard in all other BIA agreements we saw.

   Fee cuts can be addressed by Charter Challenge, which continues but will take many years to complete, or during PSA Negotiations, which will only occur once BAF is ratified. GMOM motion instructed OMA not to negotiate a new PSA without binding arbitration.

   1. Darren, thanks for that clarification, that does makes sense to me and I am somewhat mollified. On the reclaiming of clawbacks, this could be on the table during negotiations and admitted to the arbitrator.

   2. Thanks Darren! Great comments. I sure appreciate you taking time to answer here and on FB, etc…. way too much for me to keep up with. You (and others) ROCK!!

   3. My big concern is the “economic situation” clause. Darren – you mentioned that this means things like GDP and not fiscal situation but why isn’t that specifies? Some may argue that economic situation means the same thing as fiscal situation and ability to pay. I just wish that it was specified that economic situation was a reference specifically to economic growth etc.

   4. Interesting Darren. Right after the most recent $millions clawed back from Doctors, OHIP made sex change operations and fertility management insured by OHIP. They took money from us to pay for these services. There does not seem to be an inability for government to pay us properly and it’s all political. I’m glad the you state the “fiscal” language was resisted. Haven’t read the details yet.

4. The whole point of BA is to replace the right to strike, which we have already been stripped of (so BA is not so much something to be negotiated, as it is something we are owed and is overdue).

   We have been clamoring for BA for a LONG time (because it is our just dues.) So why would I vote against THIS particular deal?

   Three reasons:
   1) The definition of “strike” has been greatly expanded. Up to two weeks ago, “Strike” meant really strike, as in, go out on the picket line and don’t go to work! Now, in this BA, strike means that and a whole lot more: it now includes ANYTHING that impacts patients, such as not answering my phone, reducing office hours, only seeing walk-ins, having a daily cut-off, etc. That leaves us with only milquetoast marshmallows in our arsenal, in place of arrows: things like writing to MPPs, putting cranky signs up in our waiting rooms, and going to Queen’s Park to stomp about (on our own days off, not impacting patients!).

   2) The government put a statement in about sustainability, at which the OMA apparently insisted they add the phrases “high-quality” and “patient-centred”. To most of us on the front lines, this is tantamount to saying, “please let’s just keep right on going, pretending that this Canada Health Act stuff actually works.” The status quo is NOT SUSTAINABLE, period. Our only hope of ever getting renumerated fairly is if we go to two-tier, allow user fees, or delist services massively. So this type of talk, right in the body of the BA, seems like adding a bit of gunpowder to my muffin recipe and hoping they still turn out alright.

   3) Similar to above, this BA also has a statement about “considering the Ontario economy.” Add three more pinches of gunpowder in my recipe, two teaspoons of arsenic, stir, bake, and hope for the best!

   I certainly didn’t want to vote NO on this BA, but in the state it’s in, I will. I trust that our “New and Improved OMA” will tweak this, and bring it back to Membership shortly, with these issues amended!

   1. Thanks so much, Jodie!

      I really appreciate you taking time to comment here and on FB.

      I responded to Harpaul’s comments about striking with this: “…we argued for BA because we cannot strike. We argued for something new, because of something we lacked. It would be odd to ask for BA and strike action. It’s like arguing for a boat because we cannot swim. And then after we are offered a boat, we say that we want to go swimming.”

      We cannot demand the ability to strike at the same time that we argue for BA because we cannot strike. It is illogical.

      But we can still protest, demonstrate, advocate and generally cause havoc to raise awareness of our concerns. We only agree to not withdraw patient services.

      Please check out Darren’s comments about economics, and my response to Ernest about the same.

      Thanks again for digging into this.

      Best regards,

      Shawn

      1. Great and thought-provoking writing as always, Shawn! Of course we are not demanding the ability to strike as we also demand BA. That would be ridiculous! We lost the ability to strike a long time ago. We face CPSO punishment if we close our offices. What I object to is that today’s Job Action, which I am free to do, will be outlawed under this BA.

         This BA proposal is lumping “Job Actions Involving Patients” in with strike, and that is what I do not want to see happen.

         Currently, there are three basic levels of protest we have access to: 1) Weak Job Action: “protest, demonstrate, advocate, and generally cause havoc” (complaining, stomping about, and handing out leaflets is useless as patients don’t give one lick about their doctor’s problems until it impacts them)
         THIS IS CURRENTLY ALLOWED AND WILL REMAIN ALLOWED UNDER NEW BA
         2) Strong Job Action: escalate inconveniences to patients, such as stopping the phone line, stopping appointments and doing walk in only, cutting hours, stopping call, limiting daytime total, etc. These are powerful and the more they annoy patients, the faster results happen!
         THIS IS CURRENTLY ALLOWED AND WILL NOT BE ALLOWED ANY MORE UNDER NEW BA
         3) Strike: stop working altogether until the pressure on the govt forces them to cave. Doctors arrange emergency coverage to keep ERs and/or select urgent cares open.
         THIS IS CURRENTLY NOT ALLOWED AND WILL REMAIN NOT ALLOWED UNDER NEW BA

         We are arguing over this point because your definition of strike is including job action, and I am saying keep strike meaning true strike, and leave our job action alone!

5. Harpaul, only strike action is prohibited. Strike is narrowly defined as withdrawal of service to patients. All other forms of job action are permitted. We were able to achieve BA without resorting to service withdrawal. This is a major win.

   FYI CMPA subsidy will be arbitrable.

   1. Thanks Darren!

   2. Thanks for the reply Darren. So I assume that what the OB’s did back in the 90’s would not be allowed under the proposed agreement? I would say that was the most effective form of job action that has ever occurred in Ontario, and as far as I remember, did not last long enough to impact patient care at all.

      Thanks again for all your work with the OMA.

6. Being all for BA….I still worry that any agreement will be binding only on the medical profession, with the government being able, via various machinations, to break any agreement it signs.

7. Maybe BA isn’t good for us after all . What makes us think that the arbitrator will be any different from the mediator / conciliator we had last time – who agreed with that government .
   I think Jodie is correct. We need to protect our right to strike. So if the government legislated return to work – are they going to put us all in jail if we don’t go ? We can’t fear them . No change would ever happen in the world if any disruption could just be “legislated ” away !
   Accepting this BA just means we get muzzled before election time , then PSA finalized and we won’t like it. …. and arbitrator will lean towards government priorities and we won’t be allowed to vote against it.
   Instead of BA, our starting point should be return all stolen funds with interest. Then we should start PSA discussion immediately and hold the MOH’s feet to the fire as we get into election season.
   Why is it that they have given us a sept time line to agree whereas we have been waiting 4 years for a contract ( do ya think it may be something to do with muzzling us just before election time ….) .
   We should say funds back immediately and PSA by Dec 1st . And if we don’t like it – the liberals should start packing their bags . We have the power Shawn , don’t give it away . We did that last election time – we did that in the 2012 contract – let’s not do it again !
   Why is the ” return of funds ” discussion not able to be arbitrated ? Red flag right there .
   I hope the membership votes NO .

8. Some of my many concerns is that the term “Binding Arbitration” is used interchangeably with “Binding Interest Arbitration”. They are not the same. This agreement is not in the profession’s best interests. I agree with the concerns already stated regarding job action, etc. I would also like to comment on your statement, “Even if we had the right to withhold patient services, many of us would see our patients through the emergency department, just to make sure all patients who wanted medical care could see a doctor.” The operative word here is “want”, which is very different than “need”. Much of what clogs the system and uses valuable limited resources is unnecessary demands by an entitled society. Curb their demand for their perceived need and there is more than enough money in the system. Quit making the profession responsible for everything!

9. Andris, government always has the ability to legislate or create new laws. Having said that, any breech of this agreement can be referred to the Referee. Should the government choose to legislateBA away from us, our remedy would be another legal challenge. The case law is much different now than in the 1990s when the PC’s took BA away from doctors. My understanding is also that it is always viewed as more agregious when you take rights away than when you ask for a right and are denied. Once we have BA, our case is more favourable should they later decide to take it away.

   1. I am so glad this question was asked and answered. Obtaining BA is a huge benefit to the profession. My only concern was the ability for governments to legislate away the right at their whim as has happened in other provinces. The ability to obtain BA is important. The ability to keep BA will be crucial especially to protect the profession from unilateral attacks in the future. Reacquiring what has been lost over the past 3 plus years is another topic for another day but equally important. The Liberals have just promised another 21 Billion in “gifts” over the last 2 days. Let’s see how focused they are to get physician peace prior to the next election.

      1. Hi Robert,

         Government will always have the ability to legislate. They are elected by voters to do so.

         However, should they attempt to set aside an arbitrator’s decision, it would abrogate their duties under the contract and render it null and void. Legislating away our right to BA would result in a Charter Challenge. My understanding (not a lawyer but know some good ones) is that it is always a more serious breech to take away a right that has already been in place.

10. Elizabeth,

    Please see my article in the Med Post today. We will have both interest and rights arbitration under the BAF.

    http://www.canadianhealthcarenetwork.ca/physicians/discussions/opinion/understanding-the-rules-of-the-game-in-ontario-49904

    “As previously noted on the Medical Post’s website, The Ontario Medical Association (OMA) announced that it has reached an agreement with the Ministry of Health to implement binding interest arbitration (BIA), a new mechanism that would allow an independent third party to make a final decision in contract negotiations when disputes occur. The binding arbitration framework (BAF) has been unanimously endorsed by the OMA negotiations committee and the OMA board of directors has recommended it to its members for ratification.

    To help members understand some of the nuances of the binding arbitration, I have developed the following analogy:

    Binding interest arbitration is like agreeing to the rules of a game before you play. Binding rights arbitration is like the referee enforcing the rules during the game.

    Up until now, the government wielded a significant advantage. Negotiating a Physician Services Agreement (PSA) without BIA meant the government always held a significant power imbalance in their favour. The analogy is that we were playing a game without rules and without a referee. Instead we relied on the “honour system” to negotiate in good faith. In recent years, the government decided to make use of this advantage to meet their fiscal agenda, a balanced budget. It fielded more players, called unfair penalties and used unequal goal posts. Ontario physicians experienced this as unilateral action.

    What the proposed BAF does is “level the playing field.”

    Accepting the BAF will mean that we would now have commonly agreed rules for negotiations and a referee to enforce the terms of any future PSA agreements. These rules apply to how the game is played (interest arbitration—how we negotiate a PSA) but also how to deal with infractions that arise during the game (rights arbitration).

    The purpose of the rules is not to get a predetermined outcome but rather to make sure that the process used to arrive at the outcome is fair. When disputes arise, we will now have a way to settle these without resorting to strike or unilateral action, both of which are not advantageous to patient care. When disagreement arises, each side will argue their case to a neutral third party. For interest arbitration that would be the arbitration board; for rights arbitration it would be the referee. While the process is not slanted in favor of one group or the other, we feel that if the game is a fair one, we have the right players (doctors), right coaches (our negotiators) and the right strategy (high quality patient care) to make our case heard.

    It also bears mentioning that the OMA and Ontario ministry of health have not yet begun to negotiate the substantive matters associated with a Physician Services Agreement. The “game” has not yet begun. Ontario’s doctors were clear that we should not engage in any future negotiations without the ground rules in place for a fair and reasonable negotiation.

    But healthcare is not a game. Patients’ lives and well-being are at stake as is the ability for doctors to provide the care our patients deserve. In a perfect world, we would be working in collaboration with the government, not in opposition. But we needed a dispute resolution mechanism to settle disagreements before we can begin to rebuild trust and a working relationship with government. Trust is not given, it’s earned. The past four years have been toxic and counterproductive to that relationship. This BAF represents the first step on a journey back to a more respectful and productive relationship between Ontario’s doctors and government.

    “Trust, but verify.” —Russian proverb

    The purpose of this analogy is to help our members understand the complexity of the proposed BAF and why it is important for current and all future doctors in the province of Ontario. I would encourage all OMA members to attend the upcoming education sessions in your area, tele town-halls when available or send your questions to BindingArbitration@oma.org for any and all concerns regarding this agreement.”

    Dr. Darren Cargill is the medical director for the Hospice of Windsor and Essex County, a member of the OPCN clinical advisory council and the Ontario Medical Association negotiations committee. He was formerly the chair for the section of palliative medicine at the OMA and the regional lead of Cancer Care Ontario.

11. Elizabeth,

    Regarding BIA and BA, here is my post today in the Medical Post.

    Understanding the rules of the game in Ontario

    Written by Dr. Darren Cargill on May 24, 2017 for CanadianHealthcareNetwork.ca
    Email Print Text size Comment

    Dr. Darren Cargill
    As previously noted on the Medical Post’s website, The Ontario Medical Association (OMA) announced that it has reached an agreement with the Ministry of Health to implement binding interest arbitration (BIA), a new mechanism that would allow an independent third party to make a final decision in contract negotiations when disputes occur. The binding arbitration framework (BAF) has been unanimously endorsed by the OMA negotiations committee and the OMA board of directors has recommended it to its members for ratification.

    To help members understand some of the nuances of the binding arbitration, I have developed the following analogy:

    Binding interest arbitration is like agreeing to the rules of a game before you play. Binding rights arbitration is like the referee enforcing the rules during the game.

    Up until now, the government wielded a significant advantage. Negotiating a Physician Services Agreement (PSA) without BIA meant the government always held a significant power imbalance in their favour. The analogy is that we were playing a game without rules and without a referee. Instead we relied on the “honour system” to negotiate in good faith. In recent years, the government decided to make use of this advantage to meet their fiscal agenda, a balanced budget. It fielded more players, called unfair penalties and used unequal goal posts. Ontario physicians experienced this as unilateral action.

    What the proposed BAF does is “level the playing field.”

    Accepting the BAF will mean that we would now have commonly agreed rules for negotiations and a referee to enforce the terms of any future PSA agreements. These rules apply to how the game is played (interest arbitration—how we negotiate a PSA) but also how to deal with infractions that arise during the game (rights arbitration).

    The purpose of the rules is not to get a predetermined outcome but rather to make sure that the process used to arrive at the outcome is fair. When disputes arise, we will now have a way to settle these without resorting to strike or unilateral action, both of which are not advantageous to patient care. When disagreement arises, each side will argue their case to a neutral third party. For interest arbitration that would be the arbitration board; for rights arbitration it would be the referee. While the process is not slanted in favor of one group or the other, we feel that if the game is a fair one, we have the right players (doctors), right coaches (our negotiators) and the right strategy (high quality patient care) to make our case heard.

    It also bears mentioning that the OMA and Ontario ministry of health have not yet begun to negotiate the substantive matters associated with a Physician Services Agreement. The “game” has not yet begun. Ontario’s doctors were clear that we should not engage in any future negotiations without the ground rules in place for a fair and reasonable negotiation.

    But healthcare is not a game. Patients’ lives and well-being are at stake as is the ability for doctors to provide the care our patients deserve. In a perfect world, we would be working in collaboration with the government, not in opposition. But we needed a dispute resolution mechanism to settle disagreements before we can begin to rebuild trust and a working relationship with government. Trust is not given, it’s earned. The past four years have been toxic and counterproductive to that relationship. This BAF represents the first step on a journey back to a more respectful and productive relationship between Ontario’s doctors and government.

    “Trust, but verify.” —Russian proverb

    The purpose of this analogy is to help our members understand the complexity of the proposed BAF and why it is important for current and all future doctors in the province of Ontario. I would encourage all OMA members to attend the upcoming education sessions in your area, tele town-halls when available or send your questions to BindingArbitration@oma.org for any and all concerns regarding this agreement.

12. Harpaul, at the very least, the actions taken by OBs in the 90s would be referred to the Referee for consideration as strike action – limiting, restricting or withdrawing service to patients.

    Having said that, they were protesting the CMPA subsidy, which is now an arbitrable issue under the BAF. A dispute about CMPA subsidies will now go to an arbitrator (beginning in 2023; s.21 iii e)

13. I agree that physicians should have binding arbitration. No other profession is as hamstrung when it comes to dealing with the government as doctors are…

    However, be aware that binding arbitration with an “employer” that has an unfair power advantage (i.e., legislative power), can end up backfiring.

    I would point out that this has historical merit in that in British Columbia in 2002, binding arbitration granted physicians a justified windfall in fee increases, only to have the (Liberal) provincial government of the day cry “poverty” and then cancel the whole thing. And, BC wasn’t $354+ billion in debt at the time…

    https://www.theglobeandmail.com/news/national/cash-poor-bc-cancels-part-of-doctors-hefty-raise/article1021912/

    http://www.vancouversun.com/Vaughn+Palmer+binding+arbitration+Liberals+fooled+again/10179417/story.html

    All I am saying is to count on the fact that politicians will be politicians (and this government has placed Ontario in a mind boggling sinkhole of debt) and to have a well formulated plan B, C, and D in your strategy if west coast history repeats itself with this Ontario Liberal government (or their likely successors who will have one heck of a mess to try and clean up with only a small broom and rusty shovel left in the closet by the spending spree Liberals to do it with…).

    Best of luck,

    MM – not a physician, but an interested stakeholder as a resident of the province of Ontario.

14. One last reference link…

    http://www.harrisco.com/resources/legal-news/801

    1. Thanks Mitch!

       So sorry for being late on responses…I’m finding it hard to keep up…

       s

15. The real issue that should concern us is not the specifics or minutiae of the BIA. It should be the big picture, the way that healthcare is funded, and sustainability of the present system. The health services budget is by far the single most onerous item in any provincial budget, and as it continues to swallow ever more resources to keep up with an expanding and aging population, it must somehow be constrained.
    One way is to be open to other funding mechanisms aside from public taxes.This is what is done virtually everywhere in the world, with very significant successes, especially in the Western world countries most similar to our economic system. I am obviously talking about the hybrid public-private system, which is unfortunately viewed as anathema and heresy by the governments of Ontario and those of most other Canadian provinces (except Quebec) which threatens the very foundations of our national identity. So the present system continues on in the other way, all publicly funded, despite the fact that it is doomed to economic failure, even in the analysis offered by the OECD, and produces some of the costliest and worst outcomes in the Western world in analyses done by the WHO.
    Why is this important in the present BIA discussion? Because no matter what deal we negotiate under the BIA, it can, and ultimately will, be cancelled by government action (witness Manitoba, British Columbia) as it inevitably struggles to balance its books. That is exactly how Ontario balanced its books in the past two years , by simply cutting our incomes by billions of dollars using the sledgehammer of legislation. The issue really is not whether the government can do it – of course it can- but rather how likely it is to do so – very likely given the totally unsustainable nature of the present system. Instead of setting the stage for another future fiasco, by agreeing to the BIA and rescinding our rights to meaningful job action, we should be campaigning for a hybrid
    funding system, and by postponing any agreement until after the election, making sure that this government is not re-elected; they need for us to be brought into the fold in order to keep power, and hence the sudden wave of “concessions” such as BIA. It will come back to bite us hard in the next two years, just as the 2012 agreement did. Incidentally, I do not fully trust our present legal negotiating team, the same people who strongly advised us to accept the old tPSA as the best deal that we could get, and are now saying the same about the BIA. They have shown bad judgment in the past, and may well be doing the same now.

    We should not naively co-operate in our own demise by quickly embracing the BIA and implicitly shoring up the present government, since history has an uncanny way of repeating itself.

    1. Solid comments, Felix. We need a bigger conversation, for sure.

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