Dissident docs' lawyer: OMA negotiated for months, told its members the opposite

A law firm hired by a coalition of dissident Ontario doctors has created a report that says the leadership of the Ontario Medical Association repeatedly told its own members it hadn't returned to the table with the provincial government — while it negotiated, for months.

The coalition is made up of doctor groups including Concerned Ontario Doctors, DoctorsOntario and several subsections of the OMA, and it successfully campaigned against ratification of the tentative Physician Services Agreement (tPSA) that the OMA had reached with the Ministry of Health and Long-Term Care.

The agreement was reached July 5, announced publicly July 11, and the province’s doctors voted against it at a general meeting on Aug. 14, after the coalition of doctors fought several court skirmishes with the OMA and organized a petition that forced a vote by the OMA’s general membership.

The deal would have increased the Physician Services Budget — the budget from which doctors are paid through billing OHIP — by 2.5 per cent a year, over four years, plus additional payments that totalled an increase of about 3.1 per cent year. But it would have capped that budget and required the OMA and the Ministry of Health to co-manage doctors fees so doctors' billings don't overrun the cap — which many doctors objected to.

The anti-deal coalition hired Lax O’Sullivan Lisus Gottlieb, a boutique litigation law firm, for those court challenges.

Lawyer Jonathan Lisus has created a report, dated Aug. 23, which says the OMA engaged in "undisclosed negotiations" from April to June.

One of the coalition’s complaints about the deal has been that it had been negotiated in secret, without the knowledge of members of the OMA’s own negotiations advisory committee, let alone the OMA’s broader membership of the province’s doctors and medical students.

But Lisus wrote that, not only had the OMA's leadership neglected to inform its members it was back in negotiations with the government again, the president, CEO and negotiations team told a number of members the opposite — that the OMA hadn't returned to the table, when, in the lawyer's view, it had.

“This is a synopsis of the legal proceedings we had asked the Coalition legal team to provide,” said co-leader of the Concerned Ontario Doctors, Kulvinder Gill, describing the document in an email to QP Briefing. “This is not an opinion. Content is all from OMA documents, court findings and affidavits sworn in court.”

The report says the OMA signed an agreement with the ministry, concerning the resumption of negotiations on April 6, “but has refused membership requests to produce this agreement or describe its contents.”

The OMA formed its Negotiations Advisory Committee (“NAC”) on April 7, but its members were told that the OMA had not resumed negotiations and that they would be told if and when those negotiations resumed, the report says. “This information was not accurate and the NAC was never informed of the resumption of negotiations,” the report says.

“This same inaccurate information was repeated to the NAC members during a teleconference held on April 28, 2016.”

The OMA’s current president, Virginia Walley, took over that post May 1.

According to the report, Walley gave a video interview on May 4, stating the OMA would not resume negotiations with the Ministry of Health (MOH) without binding arbitration. “In fact, at the time, the OMA was engaged in secret negotiations with the MOH and binding arbitration was dropped,” the report says.

The report outlines more of the same. It says that on June 8, Dr. Scott Wooder, one of the OMA’s negotiators, informed the NAC members in a teleconference that negotiations had not resumed and that the negotiating team would consult with the NAC. “This information was not accurate,” the report says.

Walley and OMA CEO Tom Magyarody made similar statements on June 24 to the leaders of the Ontario Association of Radiologists and the Ontario Association of Cardiologists, the report says.

Magyarody told the NAC July 5 that the ministry had delivered a “fully formed” agreement to the OMA’s on June 30 and prior to this date no negotiations over a PSA took place, the report says.

Wooder has since resigned, but Walley has elected to stay on as president.

The OMA didn't provide a comment to QP Briefing about the report on Thursday.

However, Walley has spoken about the secrecy around the negotiations and said the focus of the talks was initially about establishing a binding arbitration process, rather than about reaching a new agreement — but that the two sides realized in that process they had the foundation for an agreement, and then it was reached quickly. The talks were secret, according to Walley, because the OMA had signed confidentiality agreement in order to protect its court challenge regarding binding arbitration, should the talks fail.

Health Minister Eric Hoskins has also weighed-in on the secrecy issue and said, after the agreement was voted down, that “it was at the OMA's insistence that those discussions be kept secret."

In a open letter to Walley sent Thursday, he claims she had previously recognized that it was "unreasonable" to establish binding arbitration as a "precondition to discussions."

"You recognized that this was an unreasonable request once before and chose to resume negotiations under the cloak of a non-disclosure agreement, and I am hopeful that you will reconsider this position again," he wrote.

Since the tentative agreement was defeated, both Hoskins and Premier Kathleen Wynne have told the media that the OMA is struggling with serious internal issues, but Hoskins suggested in his letter the organization won't be given unlimited time to figure it out.

"Looking forward, the government remains prepared to give the OMA some time to sort out its internal matters. However, the public interest cannot be paused indefinitely and, as you know, it has now been more than two years since Ontario’s physicians have had an agreement on compensation," he wrote.