Last week, the Ontario Medical Association (“OMA”) challenged the constitutionality of the provincial government’s decision to cut fees for doctors. The OMA is relying on section 2(d) of the Charter of Rights and Freedoms (the “Charter) which expressly protects freedom of association – a right most often invoked by trade unions. The organization is seeking to have the court declare that its members have a constitutional right to a binding dispute mechanism for conflicts arising out of compensation issues.

This is not the first time that the OMA has launched a constitutional challenge against the provincial government over fee cuts. In July, 2012 a similar application was filed against the government. That challenge was withdrawn after negotiations resumed and an agreement was reached regarding a framework for future negotiations. While that framework was followed in this latest round of negotiations, the parties have still ended up before the courts.

The outcome of the application will be especially interesting in the context of two of the decisions in the recent Supreme Court of Canada labour trilogy. In Mounted Police Association of Ontario, the Supreme Court revisited the test established in Fraser v Ontario (Attorney General) (“Fraser”) for violations of section 2(d) in a labour context. In Fraser, the Supreme Court of Canada held that government action had to render the ability of workers to engage in meaningful association “effectively impossible”.  In Mounted Police Association of Ontario, a majority of the Court held that the applicant only has to establish that government action “substantially interferes” with the worker’s ability to engage in such association.

In Saskatchewan Federation of Labour, it is argued that the Supreme Court of Canada constitutionalized the right to strike. This decision could also have an effect on the OMA’s application. For providers of essential services who cannot strike, the decision appears to have established a right to a meaningful dispute resolution process as an alternative to a strike. It will be interesting to see whether, in the eyes of the court, these decisions provide the OMA with a right to a binding dispute mechanism for disputes arising out of compensation issues.

Written with the assistance of Andrew Nicholl, articling student.

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