Doctors association suing Alberta government for alleged breach of charter rights

The association representing Alberta doctors is suing the provincial government for tearing up and replacing their agreement.

Lawsuit seeks $255 million in damages from province

A doctor wearing a white coat and stethoscope.
A statement of claim filed by Alberta's doctors Thursday accuses the government of entering negotiations in bad faith and creating an environment where meaningful negotiations were impossible after terminating their contract. (David Donnelly/CBC)

The association representing Alberta doctors is suing the provincial government for tearing up and replacing their agreement.

The government violated doctors' charter rights by passing legislation that gives political leaders the power to unilaterally end their deal, the Alberta Medical Association (AMA) said in a statement of claim filed in Edmonton court Thursday.

"I will not back down from us seeking to have our rights that are guaranteed to physicians in the Canada Health Act and in the charter." AMA president Dr. Christine Molnar said in an interview Thursday.

She said the government left them few alternatives but to defend doctor and patient interests in court. The lawsuit will not affect doctors' services to patients during the pandemic, she said.

The statement of claim accuses the government of denying the AMA access to arbitration, which it maintains breaches the Charter of Rights and Freedoms.

Doctors not permitted to strike

The claim says the government failed to properly consult with doctors about its actions, entered negotiations in bad faith and created an environment where meaningful negotiations were impossible. It also says the government actions breached the Alberta Bill of Rights and international labour standards.

Doctors are considered essential workers and cannot go on strike.

Patrick Nugent, the lawyer representing the AMA, said the Supreme Court of Canada has recognized essential workers must either have the right to take job action or have access to a third-party arbitrator to settle disputes. 

Lack of access to an arbitrator has "crippled the AMA's ability to meaningfully bargain on behalf of physicians," he said.

The government has not yet filed a statement of defence. None of the allegations have been proven in court.

The association is seeking $255 million in damages. Molnar said that's the amount of money the government said it would save by changing doctor pay.

The best-case scenario for the AMA would be sitting down to reach a negotiated agreement and a guarantee of access to arbitration, Molnar said.

"We are simply asking for the same rights that other health-care workers and first responders enjoy," she said.

Negotiations heated up in fall

The Alberta government and the AMA had been negotiating since September, discussing pay rates and funding for physician-support programs.

Molnar said doctors were blindsided in October 2019 when the finance minister tabled Bill 21, which gave the government the power to unilaterally terminate the doctors' agreement.

In November, the government gave the AMA a list of 11 proposed changes to how doctors are paid. 

The proposals included capping the number of patients doctors could be paid to see in one day, changing how doctors are compensated for overhead and ending "good faith billing," when a patient shows up without proof of health insurance.

The AMA said the proposals would disproportionately hit family practices.

Negotiations and mediation failed, and on Feb. 20, Health Minister Tyler Shandro announced the government was terminating its contract with doctors.

Doctors overpaid, province says 

Politicians have argued doctor pay is rising unsustainably and that Alberta doctors are compensated more generously than their colleagues in other provinces. The AMA has disputed the government's claims.

A blue-ribbon panel which examined government spending in 2019 concluded Alberta spends more per resident on health care than any other province. The MacKinnon panel implored the government to curtail that spending.

Premier Jason Kenney said Thursday it would be inappropriate for him to comment on a case before the court. 

He said in the last 18 years, doctor pay has grown faster than inflation or the economy. He wants to contain that cost.

"We want to support our physicians," he said at a Thursday news conference. "We believe they should not only be paid fairly, but generously. What we need to do is to prevent that kind of compensation from getting even more out of whack with the rest of the country in the future." 

Kenney said he appreciates doctor's clinics, like other small businesses, are suffering during the pandemic. The government created new billing codes for doctors to see patients by phone and secure online video to help keep them afloat, he said.

After the novel coronavirus pandemic hit Alberta, the government backed away from one change that would've paid family doctors less to spend more time with patients who have complex health conditions. Doctors pleaded with the minister to delay all changes until the COVID-19 crisis is over.

Opposition Leader Rachel Notley said the dispute between doctors and the provincial government should never have been allowed to deteriorate into a court battle.

"This is not the kind of relationship we should be having those fundamental leaders in the health care system in the middle of a historic pandemic," she said. "It is outrageous."

The government-imposed contract took effect April 1. Since then, some rural doctors have said they plan to leave Alberta after the pandemic rather than work within the new payment scheme.

Eight doctors in Sundre are withdrawing their services from the local hospital, saying changes to the way they bill for the services and medical liability payments made it unsustainable.