Alberta government legal defence claims doctors' charter rights not violated

The Alberta government says it did not breach Alberta doctors' charter rights by passing legislation that allowed the health minister to unilaterally rip up their agreement on the terms and conditions of doctors' work.

In an 11-page statement of defence released Thursday, the government of Premier Jason Kenney also contends doctors, through the Alberta Medical Association (AMA), are not entitled to bargain collectively, nor are they entitled to independent arbitration.

"Freedom of association in the Charter is afforded to individuals, not to organizations such as the AMA," the statement of defence says.

The government says it did not deny the AMA access to arbitration, and it further denies it negotiated in bad faith and rendered meaningful negotiations impossible.

In April, the AMA sued the government for $255 million. The AMA said the Supreme Court of Canada had recognized essential workers must either have the right to take job action or have access to a third-party arbitrator to settle disputes.

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In its statement of defence, the government says doctors have engaged in job action by "withdrawing services or threatening to withdraw services in their communities."

The statement of defence lists 10 communities, including Sundre, Pincher Creek and Lac La Biche, where it says doctors engaged in job action.

"These announcements have been made to the general public, creating uncertainty and fear in the community, and have been used to undermine the public's confidence in the health care system.

"These actions are analogous to threats of strike or walkout by unionized employees against their employee."

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The government says the AMA has failed to show Alberta Health did anything to interfere with doctors' ability to engage in job action.

Doctors are considered essential workers and are barred by law from going on strike.

Government says AMA not prepared for mediation

The AMA has always contended that Health Minister Tyler Shandro had no intention of negotiating in good faith or submitting to arbitration.

The government in its defence accuses the AMA of not being prepared for mediation. It says the AMA did not table proposals for Alberta Health to consider until the final day of mediation.

In contrast, Alberta Health, the defence statement claims, "presented comprehensive proposals, detailed rationales, answered all questions related to the items presented to the AMA's bargaining team and fully disclosed information sought by the AMA to assist the AMA in assessing and responding to Alberta Health's proposals."

"Taken together, Alberta Health negotiated in good faith," the statement of defence claims.

The government also claims that it continues to attempt to work with the AMA in good faith since it unilaterally terminated its agreement.

None of the allegations by either side has been proven in court.

The government and the AMA had been negotiating since September 2019, discussing pay rates and funding for physician-support programs.

Contract unilaterally terminated

The AMA said it was blindsided in October 2019 when the finance minister tabled a bill which gave the government the authority to unilaterally terminate the agreement with doctors. But the government in its statement of defence says it told the AMA early in the process that it could take this action.

In November, the government gave the AMA a list of 11 proposed changes to how doctors are paid including capping the number of patients a doctor could be paid to see in a day, and how doctors are compensated for overhead.

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The AMA said the proposals would disproportionately negatively impact family practices.

Negotiations and mediation failed and on Feb. 20 Health MinisterShandro announced the government was terminating its contract with the doctors.

The Kenney governmenthas argued Alberta's doctors are overpaid, relative to doctors in other provinces. The AMA disputes that claim and has accused the government of cherry picking data to support their claim

The government, through its statement of defence, is asking the court to dismiss the doctors' lawsuit, with costs.