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Doctors Nova Scotia appeals contracts decision

Leslie Tilley led a protest in front of Nova Scotia Premier Stephen McNeil’s constituency office in Middleton Oct. 28. She wants more doctors, 1,000 long-term care beds, and the Nova Scotia Health Authority trimmed down.
A protest about the state of Nova Scotia’s health-care system took place in front of Premier Stephen McNeil’s constituency office in Middleton in late October. - Lawrence Powell
HALIFAX, N.S. —

Doctors Nova Scotia is the sole bargaining agent for physicians practising in the province and the association must be party to any compensation negotiations involving doctors, lawyer Ron Pink argued in the Nova Scotia Court of Appeal on Monday.

“The legislation says that every single doctor must be a member of Doctors Nova Scotia (DNS) if they want to practise in this province,” Pink said.

“Everybody has to be a member. We didn’t do that, the government said that. Everybody’s a member, we are the sole bargaining agent for everybody and we get to negotiate the deals on behalf of every single member. That’s our obligation, our responsibility as being the sole bargaining agent.”

Pink was arguing an appeal of a June decision by Justice Robin Gogan while the more than 3,100 physicians represented by DNS finished up a ratification vote on a new agreement with the province.

Doctors Nova Scotia had made application to the Nova Scotia Supreme Court in opposition to the province’s view that the Health Services and Insurance Act permitted it to enter into payment arrangements with individual physicians.

Justice Gogan concluded that the health minister is “only obligated to resolve the matter of physician compensation with DNS,” and that “any agreement dealing with doctor compensation requires both the minister and DNS to agree.”

Gogan ruled that there are many other matters that the minister and DNS may discuss, collaborate and agree upon. In the event an agreement is reached, it is binding upon all doctors covered by the agreement, Gogan said “But the minister’s obligations to DNS are limited to the subject of benchmark compensation. Beyond that, the minister retains authority to enter into agreements with physicians who do not wish to be paid under the tariffs on a fee-for-service basis. In my view, the legislative scheme empowers the minister to enter into APPs (alternate payment plans) in its discretion, without agreement of DNS.”

Pink argued in front of a three-judge panel consisting of Chief Justice Michael Wood and Justices Llinda Lee Oland and Elizabeth Van den Eynden that Gogan had ignored the meaning of the words, the context and history of sole bargaining agent and the method of making a bargaining agreement.

“When you put all these pieces of legislation together … the only reasonable conclusion to be had in all this is that when it comes to negotiating compensation with physicians, Doctors Nova Scotia, as the sole bargaining agent, has to be a party to those negotiations,” he said.

Pink said the argument comes down to what constitutes compensation. Pink agreed with Agnes MacNeil, lawyer for the province, that compensation is not defined legally.

“It’s not,” he said. “You look at the common meaning and the jurisprudence, when you do that, the law is clear that compensation means everything, not just the money paid. Compensation is much broader than payment.”

Pink said compensation can be defined as remuneration or other benefits received for services rendered, benefits such as vacations or office hours. Pink added that being sole bargaining agent means that “we are the only ones that can speak on their behalf.”

He said the mischief created by doctors doing the same work for different levels of compensation would be profound.

MacNeil countered that physicians are not employees of the province but are independent contractors and that there “is no basis to import legislation considering the rights of unions and the union context into the framework of these statutes.”

MacNeil and the province concede that DNS is the sole bargaining agent for doctors in the area of compensation but she argued that the definition of compensation is much narrower than Pink posited.

“When the services are provided, this is the amount that you get. There is no vacation, there is no hours of services. There is only what is the service and what you are paid under our health insurance scheme for delivering that service. Doctors are independent contractors, they are not employees and the amount of time they take off or don’t take off is generally up to them.”

MacNeil said the Health Services and Insurance Act provides the minister broad powers to do what he or she “considers necessary or advisable for the purpose of carrying out effectively the intent and purpose of the Act.”

In that way, the minister has the latitude to tailor individual doctor contracts as a means of recruiting doctors to the province and under-served areas of the province without getting buy-in from DNS.

The panel of judges reserved decision on the appeal.

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