The Devil is in the Detail

Richard Charney's Response to the OMA's Reaction to His Analysis.

By now, many of us have had enough information on the tentative binding interest arbitarion (tBIA) deal the OMA and Ontario Liberals have offered us to vote on. But just as voting began, we received still more information from the OMA's lawyers refuting the legal analysis by prominent labour lawyer Mr. Richard Charney, a result of your support and our teaming up with Dr. Kulvinder Gill, president and co-founder of Concerned Ontario Doctors (COD), In rebuttal, Mr. Charney's supplemental response to the OMA was released shortly after and appears below.

But, before we get into the details of Mr. Charney’s response, it is important to understand more details about the OMA:

  • It’s about the leadership signing legally binding agreements to toe the party line no matter what side of the line each individual is on.
  • It's about leadership that pressures and controls its subordinates to fall in line and even controls the content of what its subsections communicate with their members.
  • It's about pushing its own agenda and an unwillingness to reveal the downside.

It’s that simple.

So, when you think about it, the whole thing is a bit like a used car salesman who'll tell you what a great deal you're getting and will brush you off if you have any concerns.

With the tBIA, the OMA is giving us the privilege and responsibility to vote on it. But, it's also telling us we have to vote yes. Thanks OMA.

As they say, “I’m just saying…”, but this is what we get with our OMA with its corporate structure and culture. Oh, don’t forget the Ontario Medical Association Dues Act, 1991. Furthermore, unlike the federal or provincial governments, there is no official opposition. Voluntary, grassroots groups like DoctorsOntario, the COD, and Doctors For Justice end up having to take on this role thanks to your support.

But wait, there's more you should know:

  1. OMA Chief Strategist then CEO Ron Sapsford 2010-2015: With over 3 decades working as a government health bureaucrat including Deputy Minister of Heatlh twice including 5 years with the McGuinty Liberals and working directly under Minister of Health Deb Matthews, it boggles our minds why the OMA hired him.
  2. "The Multiplier": 25 years ago, OHIP fees were 90% of the OMA fee schedule. The OMA's economics department annually calculated the OMA fee increases based upon inflation and the increasing costs to run our practices. Currently, the OMA fees are a factor called "the multiplier" applied to the OHIP fees. The current 2017 "multiplier" is 2.22 (OMA Uninsured Servoces References List 2017). Doing the math (OMA fee = 2.22 x $OHIP fee), you'll find that the current OHIP fees are only 45% of the OMA rate, yes only 45%. Ontario's doctors know the primary function of the OMA is to negotiate our OHIP fees. To say this is an utter disappointment is an understatement. We'd love to hear what you say. Why not let the OMA know too?
  3. Lawyer Steven Barrett: He is one of the OMA's current tBIA lawyers from Goldblatt Partners. He is married to Dr. Danielle Martin, the founder and current Past Chair of Canadian Doctors for Medicare. This is an unacceptable conflict of interest. To make matters worse, we have learned that the OMA is not only aware of this, but also spent considerable funds, our dues, to acquire a legal opinion that apparently nullifies it. We beg to differ and ask why didn't the OMA leadership inform us of this?

Still want to know more OMA devilish details? Read this article by Certified Health Law Specialist Tracey Tremayne-Lloyd: When is a Bargaining Agent not a Bargaining Agent in Democratic Society

Turning now to the the tBIA. The devil is in the detail as well. We urge you to review the expert supplemental rebuttal provided by your grassroots efforts from Mr. Richard Charney. You know that we want Ontario doctors to have a binding arbitration dispute mechanism in place to avoid the mess we are currently in. But, given this expert legal analysis and painstaking review, we urge you to vote no so the major pitfalls stacked against us in favour of the Ontario government can be fixed. Please read Mr. Charney's entire supplementary below even if you've cast your vote. But, first think about these details before you do:

  1. The $3 billion unilateral government cuts have been excluded. Would the Ontario government negotiate a Master Agreement in good faith knowing this $3 billion dollars would disappear if it simply lead us down the garden path to an impasse?
  2. The OMA is dangling a carrot in front of us saying that the Charter Challenge will be allowed to continue and will help us get the $3 billion cut. Why would the Charter Challenge stop? Who can stop it? What did the OMA give away to include it in the tBIA? Legal analysis confirms we are highly unlikely to reclaim our lost $3 billion through it.
  3. The “strike ban" includes a ban on engaging in and even threatening job action. Furthermore, unlike anywhere else in Canada, it extends beyond the items being arbitrated. Lastly, it is even positioned to take effect immediately after a "yes" vote.
  4. The Ontario government could unilaterally invalidate portions of the tBIA and the OMA will be powerless to do anything about it.
  5. The agreement calls for no "caps". But, to quote Mr. Charney, we will forced to provide "some form of co-management" with the "ultimate fiscal determinations....made by the government." To be blunt, the agreement lends itself for the Ontario government's enforcing caps with arbitration criteria.
  6. The OMA is again selling out its membership permanently in a perpetual binding interest arbitration contract to further enshrine it as our sole, legal representative and negotiator.
Lastly, consider this. The Ontario Liberals are eager to find more ways to be re-elected again. This fall, they will be facing 4 legal battles (Will Wynne call an early election? Toronto Sun) with the media eager to cover them. Premier Wynne would love us to vote "yes" on the tBIA. Trust us, this is on her mind. The question is, do we trust her?

Vote by June 17th and urge all your colleagues to vote

Douglas Mark MD, Interim President
and the Board of DoctorsOntario