The Why Behind The Charter Challenge Decision

Hello OMA members, this week on The Doctor Is in, I am going to revisit the topic of the Charter Challenge.  OMA members were recently informed by the board that the OMA is discontinuing this legal challenge.  This decision was made in the best interest of Ontario's physicians. One of the specific implications of the decision was to protect the future bargaining rights of Ontario’s physicians.  What does that mean?  Why was this decision made?  These are important questions that deserve answers.

For anyone unfamiliar with the case, in 2014, the government of Ontario made the decision to unilaterally cut funds from the physician services budget, defunding patient care in Ontario and demoralizing the profession.  It was unacceptable and in response, the OMA launched a Charter Challenge in 2015, arguing that the government had violated the rights of Ontario’s doctors.

This case was launched over a decade ago and since then many things have changed.  As such, the OMA completed an extensive review of the risks and benefits of continuing or discontinuing the litigation.  After a thorough examination of all facts, including legal advice, changes in the legal landscape, feedback from the membership and the specialties that were disproportionately impacted by the government’s actions, the board made the difficult decision to discontinue the case.

While we shared as much as possible about the current state of the case with the membership prior to making this decision, there were several important items that had to remain confidential. As a result, we were unable to share pertinent details in order to protect the integrity of our legal strategy if the case continued.  Now that the decision to discontinue the litigation has occurred, we are able to share this information with members.  OMA members deserve that transparency.

The Charter Challenge was initiated to prevent future unilateral action by the government. The aim was the development of a binding arbitration framework (BAF), to get the funding cuts reversed, and to try and get the money that was cut from the physician services budget returned to members if possible.  Most of the cuts that sparked the Charter Challenge have been reversed, even if some issues have not been completely resolved.  A BAF has been developed and successfully used to negotiate the physician services agreement multiple times.

These changes in circumstance were considered by the board along with the fact that losing the case could put the BAF at risk. While winning the case would give a legal precedent to physicians having a right to arbitration in negotiations, there was a reasonable possibility that the case would not end in OMA’s favour.  There were several reasons for this—in constitutional cases, if the violation of the right has been remedied (in OMA’s case with the reversal of most cuts and development of the BAF) then the court will sometimes deem the case moot and not rule in favour of one side or the other.  

There was also a recent case in Quebec (2025) where the Quebec Court of Appeal determined that contract healthcare workers were not eligible for binding arbitration because they are not considered employees.  While this occurred in a different province, Court of Appeal cases can influence outcomes even in other provincial jurisdictions. The case was decided by a prominent labour law judge, and the Supreme Court denied an appeal. If a similar finding occurred in the OMA’s case, the MOH would have legal precedent supporting removing the BAF in the future if there were a change in circumstance between OMA and the government.

When we started the challenge, there was nothing to lose. If the courts decided doctors did not have the right to binding arbitration in negotiations we were no worse off than we already were.  The difference now is that we do have a BAF.  If the OMA moved forward with the Charter Challenge and lost, it could place the current BAF at risk.  The government would have a legal precedent to consider removing the framework.  Does this mean the government would?  That remains uncertain, but it would make it easier to do so.  On top of that, if the OMA lost, there would be a significant chance of being ordered to pay the Ministry of Health’s substantial legal fees, which would be an added financial pressure on member dues.

It is important to acknowledge that the Charter Challenge was not just about future bargaining rights—it was also about the money already lost—people’s financial futures were negatively impacted by unilateral government decisions.  It is reasonable and expected to want this money returned. 

The challenge is that the likelihood of significant monetary remedy being awarded was low.  In many constitutional cases, money isn’t awarded even if rights are determined to have been violated.  In previous situations where financial compensation has been awarded, it was not at an amount significant enough that it would make up for the income lost by Ontario’s doctors.

So, with this additional information, the question is what was in the best interest of OMA members?  When physician leaders who were able to learn these details under a non-disclosure agreement were asked whether the Charter Challenge should be continued, 76% of the respondents recommended discontinuing the challenge.  The primary reason for this recommendation was to protect the current and future bargaining rights of physicians (i.e.to protect the profession’s financial future).

It was also important to ask for feedback from the general membership, while acknowledging the limitations of information that they had because we could not provide 50,000 members with an NDA without placing the integrity of the case at risk.  Without key additional information, 57% of members responding to the survey wanted to continue the Charter Challenge.  However, the most popular reason to continue was to protect the BAF and future bargaining rights of physicians.  When asked what OMA priority was the most important, the most popular answer was negotiating the physician services agreement.

With all of this information available, the board made a difficult, painfully thought-out decision.  It was not entered into lightly.  Every piece of information and every risk and benefit was considered.  The financial wellbeing of our members was prioritized because our members have identified this as their top advocacy priority.  Members were at the centre of every aspect of this decision—why?  Because the OMA exists to serve the interests of the physicians of Ontario and the board must always consider the needs and wellbeing of the members.

There will be doctors who disagree with the decision to discontinue the Charter Challenge.  Of course there will.  What happened a decade ago was awful and making the decision to step away from the legal challenge that sought to remedy that wrong is not an easy one to make.

But the fact remains that many of the advocacy wins that this association has achieved over the last 10 years have been achieved in the context of knowing this litigation was in process.  It influenced how we came to the negotiating table every time we sat down with government.   The work has not been in vain and the challenge has served an incredibly important purpose.

Some members may be concerned about what happens in the future if the government chooses to take unilateral action again.  Know that stepping back from this specific case of what happened in 2014 does not impede our ability to bring a new case forward if the government harms physician rights in the future. 

If you as a member are disappointed by this decision, I understand.  We were never going to have consensus on the future of the Charter Challenge.  As your president, you can reach out to ask questions and to discuss this further if needed.  That is my job and I am here to support members.

But please know that even if you disagree with this decision, it was made with thought and care.  This choice was not made from a lack of commitment to the cause of physician advocacy.  Quite the opposite is true. It was a strategic choice made by a physician-led board to protect the future financial wellbeing of physicians because the doctors of Ontario are our purpose, our mandate, and our privilege to serve.