Ontario Binding Arbitration Framework

The OMA and the Ontario Government, against all odds, have come to an agreement. A preliminary one. On how to approach a real agreement. This isn't a physician services agreement, which is what would be needed to provide for a real update of physician funding schemes, but it's a start. Effectively, this sets the stage for negotiations and provides a framework to come to an agreement through a binding arbitration system.

In rejecting the previous tentative physician services agreement, I had two main concerns. First, that the presence of a defined, limited physician services budget with clawbacks on physicians as a whole put too much responsibility on individuals physicians for results beyond their power to affect. Worse, it set up an economic situation that would further encourage physicians to bill and practice in ways that advantaged them at the expense of patients, taxpayers, and their own colleagues. Second, it did not provide any protections for physicians against decision-making of the Ontario government, which is vitally important as physicians have minimal protections from current labour laws and no practical ability to strike in the event of a protracted labour dispute.

This agreement, the Binding Arbitration Framework, effectively has the Ontario government yielding the second point entirely. If this framework is agreed to, we have binding arbitration now and, by the looks of it, moving forward to future negotiations. It appears to be a reasonable solid arrangement, without much in the way of loopholes. The worst criticism I've read is that the government maintains policy-making rights, including which services should be funded which... of course they do. I doubt we could remove that in an agreement regardless of how it was written, thanks to the current Canadian constitution and the Canada Health Act. This was always going to be a loophole, but it'd be extremely inconvenient - politically and legally - for the government to take advantage of this under the proposed framework.

More interestingly, the framework touches on the first point of concern I had as well. It doesn't remove a set physician services budget, which I still find worrisome, but neuters its effectiveness considerably. First, it makes the budget subject to binding arbitration. Second, it explicitly dictates factors that an arbiter should consider, most importantly demographic changes. It does include consideration for the economic situation in Ontario, which is troublesome from an administration that has used any hint of economic weakness to justify public service cuts, but could end up being beneficial as well, as economic strength should work in our favour. Third, and most importantly, breaches in the cap on the physician services budget do not automatically result in punitive action against physicians. Rather, breaches will be subject to arbitration, where it can be determined to what extent, if any, physicians are responsible. Additionally, any punitive actions are subject to negotiation and arbitration, meaning more targeted cuts are possible, in contrast to the current approach of across-the-board cuts. I'd rather see the physician services budget cap removed entirely, but this is a reasonably well-tailored way to maintain its existence while blunting the more objectionable aspects to such a cap.

Some other objections to this agreement have been raised, however. First is that it generally precludes negotiation on the unilateral changes enacted since 2014. Yet, I haven't seen any indication this would be on the table - even the most favourable labour decisions wouldn't include significant back-payments and the OMA has little bargaining power for this time (due in no small part to its own actions). There's what's ideal and there's what's realistic; getting any meaningful compensation for the last 3 years during (failed) negotiations seems like a pipe dream more than anything. Second, the agreement limits ability to engage in strikes or job actions that directly affect patient care... which we couldn't (and shouldn't) do anyway. Job actions that negatively affect patient care in a meaningful way, including strikes, contravene recommended ethical guidelines, including those listed by the CPSO, our regulatory body. Furthermore, physician strikes don't work. The history of them in Canada is full of physicians losing badly. While recognizing a significant desire among Ontario physicians to engage in job actions, if this agreement prevents that, it'll only be saving us from ourselves.

I think I've painted a fairly clear picture of where I stand on this framework. It's not perfect, far from it. Yet, it gives Ontario physicians clear, long-term wins that looked unlikely even a few months ago. The compromises for those wins, while not insignificant, are tolerable. Critically, these benefits come before money is even on the table - I honestly figured that to gain some of these concessions moving forward, physicians would have to endure more financial pain in the short-term. To have them arranged in advance of the negotiations for the current physician services agreement would be a welcome surprise. I rejected the previous tPSA, loudly and proudly. I just voted in favour of this framework.