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 That challenge was withdrawn after negotiations resumed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
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
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
Written with the assistance of Andrew Nicholl, articling
Norton Rose Fulbright Canada LLP
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