Written by Caleb Henry, J.D. Candidate, Robson Hall, Faculty of Law, University of Manitoba
In February 2020, the Alberta government walked away from negotiations with the Alberta Medial Association (AMA), and introduced legislation that unilaterally terminated its long-standing master agreement with Alberta physicians. The negotiations involved, among other issues, two points of contention: “complex modifiers” and call compensation. Complex modifiers are extra fees tagged onto a base fee that physicians charge in recognition that some patients are especially complex and require more time per clinic visit. Call compensation compensates physicians for waiting at home to be “called” to the hospital, thus incentivizing physicians to take on unpopular additional shifts, and also assisting smaller, rural hospitals with few or no in-house physicians.
In October 2019, the Alberta government introduced the Ensuring Fiscal Sustainability Act, 2019, also called Bill 21 (the Bill). The Bill sought to amend various laws to bring fiscal sustainability, which introduced many changes in labour and employment relations, such as requiring employment standards officers to refuse complaints by unionized employees, and lifting the ban on using replacement workers during strikes or lockouts. However, there is one amendment that has concerning implications to the freedom of association: section 40.2 of the Alberta Health Care Insurance Act. The Act states:
40.2(1) In this section, “regional health authority” means a regional health authority established under the Regional Health Authorities Act.
(2) The Lieutenant Governor in Council may, by order, terminate
(a) an agreement referred to in section 40(1),
(b) the AMA Agreement, or
(c) any other agreement between the Crown in right of Alberta and the Alberta Medical Association, or any other person, respecting compensation matters.
(3) An agreement that is the subject of an order made under subsection (2) is terminated and is of no force and effect on the date specified in the order.
(4) For greater certainty, on the termination of an agreement under subsection (2),
(a) any dispute resolution process that had commenced under the agreement and had not concluded is terminated, and
(b) all rights, privileges, obligations and interests arising out of the agreement, or out of any decision or award resulting from a dispute resolution process concluded under the agreement, cease to exist.
(5) No action or other proceeding that is based on or is in relation to an agreement referred to in subsection (2) or the termination of an agreement under subsection (2) lies or may be instituted against the Crown, any Minister of the Crown, a regional health authority or any employee or agent of the Crown or of a regional health authority for anything done or omitted to be done, or for anything purported to have been done or omitted to be done.
(6) For greater certainty, section 40.1(4) applies to the making of an order terminating an agreement under subsection (2).
This provision effectively gives the government unilateral power to terminate physician master agreements without legislative debate or negotiation with the AMA. In fact, this very situation happened on February 20, 2020 when the Minister of Health signed an Order in Council terminating the current master agreement with Alberta physicians.
The level of disregard for Charter rights of the AMA in unilaterally terminating the master agreement is chilling. Without judicial check, this behaviour sets a dangerous precedent for future labour negotiations between the Alberta government and other labour collectives. Predictably, the AMA decided to file a lawsuit against the Alberta government, alleging a violation of section 2(d) of the Canadian Charter of Rights and Freedoms (the Charter), the Alberta Bill of Rights, breach of contract, and that the law violates International Labor Organization (ILO) standards. The claim relies heavily on section 2(d) arguments.
As the exclusive representative of physician interests pursuant to section 22.1 of the Regional Health Authorities Act, the AMA alleges that its section 2(d) Charter rights were breached because the government’s conduct substantially interfered with its ability to engage in a “process of meaningful and good faith collective bargaining” of terms within its master agreement. The crux of the AMA’s argument is that notwithstanding the right to strike under section 2(d), physicians are ethically and professionally barred from striking as they provide essential services, and, therefore, are entitled to an independent third party dispute resolution process. Under the master agreement, the AMA was entitled to arbitration. But, earlier in the negotiations, the AMA, in good faith, agreed to an extension of 90 days of negotiations rather than proceeding to serve a notice to arbitrate. Instead of negotiating during that 90-day extension, the government amended the Act and ordered the termination of the master agreement. Now that the government terminated the master agreement, which contained the arbitration clause, the AMA argues that it was effectively denied any of its section 2(d) rights. The AMA’s argument is further supported by section 12(2) of the Canada Health Act, which requires binding arbitration on disputes relating to physician compensation.
Furthermore, the AMA alleges that the government could not justify this infringement under section 1, which is likely correct since the Crown would not likely demonstrate that the purpose is pressing and substantial to justify an infringement of section 2(d). In Schachter, the Supreme Court of Canada stated that financial considerations alone are insufficient to justify a Charter infringement. In this case, though the Act itself does not give an objective, the impetus for adding section 40.2 to the Act was purely in the name of “fiscal responsibility.” In Hansard, the Alberta Minister of Finance stated that the purpose of the Bill, which contained section 40.2 as a proposed amendment to the Act, was to “help government control growth and program spending, eliminate duplication and make government more efficient, effectively oversee and co-ordinate all public-sector collective bargaining, and update current fiscal rules and reporting.” As such, it is not likely that section 40.2 could be saved under section 1 as its purpose of enactment was purely for fiscal reasons, which has not been traditionally found as pressing and substantial by the Supreme Court of Canada, and would likely be severed from the Act.
Even if section 40.2 is found to be pressing and substantial, it would not likely pass the minimal impairment step of the Oakes test because there are other avenues to which the government could implement fiscally responsible policies without breaching the AMA’s section 2(d) rights. A significant and patently obvious way to minimize the effects on the AMA’s rights is for the government to continue with good faith negotiations to find appropriate measures to cut costs. In fact, during negotiations, the AMA acknowledged the government’s goal to decrease its health budget and demonstrated a commitment to helping the government find a fiscally sustainable outcome for both parties. It is not entirely clear why the government opted for such a hardline path to enforce its policy when it could have easily accomplished those goals without infringing Charter rights.
All-in-all, this case highlights two issues. First, the case demonstrates the need for individuals and organizations to stand-up for their rights in the face of overreaching government action that threatens them. Second, in times like these, when attentions are focussed elsewhere, government must be especially held accountable for their actions. The freedom of association is imperative to uphold and maintain, as it protects individuals from the overwhelming power of larger entities – namely, the government. For the AMA and Alberta physicians, the arbitration process, guaranteed by section 2(d), was unilaterally dismantled by a larger, more powerful entity. If the government’s actions are not checked now, I fear for the future of collective labour disputes with the government in Alberta.
Caleb Henry, “The Alberta Government Versus its Physicians: Is Freedom of Association at Risk?” Canadian Law of Work Forum (May 4 2020): http://lawofwork.ca/?p=12427
Bill 21, Ensuring Fiscal Sustainability Act, 2019, 1st Sess, 30th Leg, Alberta, 2019 (assented to 5 December 2019).
Field Law, “Bill 21: Key Aspects for Alberta Employers” (November 2019)
Alberta Medical Association v HMTQ (Alberta) (Statement of Claim) (a copy of the statement of claim at https://www.albertadoctors.org/services/media-publications/presidents-letter/pl-archive/charter-challenge-due-process-fair-negotiations).
Licia Corbella, “Corbella: UCP’s shameful treatment of Alberta doctors leads to lawsuit”, Calgary Herald(9 April 2020)
Supra note 4.
See discussion in Delayne Sartison, Q.C., “Resolving Strikes in Essential Services – The Supreme Court of Canada Weighs In” (April 2015)
See Barbara Von Tigerstrom, “Health Care Reform and the Law in Canada” in Timothy A. Caulfield & Barbara Von Tigerstrom, ed, Health Care Reform and the Law in Canada, (Edmonton: University of Alberta Press, 2002) 157 at 176.
“Bill 21: Ensuring Fiscal Sustainability Act, 2019 ($) (Toews)”, 1st reading, Hansard, (28 October 2019) at 2026 (Hon Travis Toews).
Christine P. Molnar, “New Legislation – AMA Agreement and Physician Supply” (30 October 2019)